United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 26, 2018 Decided July 31, 2018 

No. 17-7171 

ARCHDIOCESE OF WASHINGTON, DONALD CARDINAL WUERL,

A ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, A 

CORPORATION SOLE, 

APPELLANT

v. 

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY 

AND PAUL J. WIEDEFELD, IN HIS OFFICIAL CAPACITY AS 

GENERAL MANAGER OF THE WASHINGTON METROPOLITAN 

AREA TRANSIT AUTHORITY, 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:17-cv-02554) 

Paul D. Clement argued the cause for appellant. With him 

on the briefs were Michael F. Williams and Kasdin M. Mitchell. 

John M. Gore, Acting Assistant Attorney General, U.S. 

Department of Justice, Matthew J. Glover, Counsel to the 

Assistant Attorney General, Matthew M. Collette and Nicholas 

Y. Riley, Attorneys, were on the brief for amicus curiae United 

States in support of appellant. 
2 

Shannen W. Coffin was on the brief for amici curiae Ethics 

and Public Policy Center and First Liberty Institute in support

of appellant. 

Jeffrey M. Johnson and Lisa M. Kaas were on the brief for 

amicus curiae The Franciscan Monastery USA, Inc. in support 

of appellant. 

Ryan A. Shores was on the brief for amici curiae Becket 

Fund for Religious Liberty, et al. in support of appellant. 

Donald B. Verrilli Jr. argued the cause for appellees. With 

him on the brief were Chad I. Golder, Jonathan Meltzer, 

Patricia Y. Lee, and Rex S. Heinke. Anthony T. Pierce entered 

an appearance. 

Before: ROGERS, KAVANAUGH

 and WILKINS, Circuit 

Judges. 

 Opinion for the Court filed by Circuit Judge ROGERS. 

Concurring opinion filed by Circuit Judge WILKINS. 

 ROGERS, Circuit Judge: The Washington Metropolitan 

Transit Authority (“WMATA”) was established by compact 

between the State of Maryland, the Commonwealth of 

Virginia, and the District of Columbia to provide safe and 

reliable transportation services. See Pub. L. No. 89-774, 80 

Stat. 1324 (1966). Like other transit authorities, it sells 

commercial advertising space to defray the costs of its services, 

and for years it had accepted ads on all types of subjects. In

 

 Circuit Judge Kavanaugh was a member of the panel at the 

time the case was argued but did not participate in this opinion. 
3 

2015 WMATA closed its advertising space to issue-oriented 

ads, including political, religious, and advocacy ads. This 

decision followed extended complaints from riders, 

community groups, business interests, and its employees, 

resulting in regional and federal concerns about the safety and

security of its transportation services, vandalism of its property, 

and a time-intensive administrative burden reviewing proposed 

ads and responding to complaints about ads. 

Since Lehman v. City of Shaker Heights, 418 U.S. 298 

(1974), transit authorities have been permitted to accept only 

commercial and public service oriented advertisements 

because “a streetcar or bus is plainly not a park or sidewalk or 

other meeting place for discussion,” but rather “is only a way 

to get to work or back home.” Id. at 306 (Douglas, J., 

concurring). Under the Supreme Court’s forum doctrine, 

WMATA, as a non-public forum, may restrict its advertising 

“[a]ccess . . . as long as the restrictions are ‘reasonable and [are] 

not an effort to suppress expression merely because public 

officials oppose the speaker’s view.’” Cornelius v. NAACP 

Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985) 

(quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 

460 U.S. 37, 46 (1983)). Based on experience that its approach

to advertising was interfering with its ability to provide safe

and reliable transportation service, WMATA adopted 

Guidelines Governing Commercial Advertising, employing 

broad subject-matter prohibitions in order to maintain 

viewpoint neutrality and avoid ad hoc bureaucratic 

determinations about which ads are benign and which are not. 

Guideline 12 states: “Advertisements that promote or oppose 

any religion, religious practice or belief are prohibited.” 

The Archdiocese of Washington contends that Guideline 

12 violates the First Amendment and the Religious Freedom 

Restoration Act (“RFRA”) and seeks a mandatory preliminary 
4 

injunction that would require WMATA to place an avowedly 

religious ad on the exteriors of its buses. The Archdiocese has 

not shown, however, that WMATA is impermissibly 

suppressing its viewpoint on an otherwise permitted subject, 

and its claim of discriminatory treatment is based on 

hypothesis. Following Rosenberger v. Rector & Visitors of the 

University of Virginia, 515 U.S. 819, 831 (1995), WMATA 

may exclude religion as a subject matter from its advertising 

space. Notably, there is no principled limit to the 

Archdiocese’s conflation of subject-matter restrictions with 

viewpoint-based restrictions as concerns religion. Were the 

Archdiocese to prevail, WMATA (and other transit systems) 

would have to accept all types of advertisements to maintain 

viewpoint neutrality, including ads criticizing and disparaging

religion and religious tenets or practices. Because the 

Archdiocese has not demonstrated a likelihood of prevailing on 

the merits or that the equities weigh favorably, it has not met

the demanding standard for a mandatory preliminary 

injunction. See Dorfmann v. Boozer, 414 F.2d 1168, 1173 

(D.C. Cir. 1969). 

I. 

 Until 2015, WMATA had accepted most issue-oriented 

advertisements, including political, religious, and advocacy 

ads. Beginning in 2010, WMATA began to reconsider its 

approach as a result of near-monthly complaints from its 

employees, riders, elected officials, and community and 

business leaders about its advertisements. See Decl. of Lynn 

M. Bowersox, WMATA Ass’t Gen. Mgr., Cust. Serv., Comms. 

& Mktg., in support of Defs’ Opp. to Mot. for TRO and Prel. 

Inj., ¶¶ 4–5 & Ex. A (Dec. 1, 2017) (“Bowersox Decl.”). The 

complaints spanned objections to ads that were critical of the 

Catholic Church’s position against use of condoms, to ads by 

People for the Ethical Treatment of Animals with graphic 
5 

images of animal cruelty, to ads opposing discrimination based 

on sexual orientation. The condoms ad, for example, 

“generated hundreds of angry phone calls and letters and 

generated the second-largest negative response to any ad[] ever

run in WMATA advertising space.” Id. ¶ 25. An “anti-Islam 

ad . . . was also a factor in WMATA’s decision to change its 

advertising space to a nonpublic forum.” Id. ¶¶ 11, 26. The 

Metro Transit Police Department and the United States 

Department of Homeland Security “feared that certain ads 

would, due to world events, incite individuals to violence on 

the system and harm WMATA employees and customers.” Id.

¶ 11. Specifically, they referred to events following “a contest 

to create a cartoon depiction of the Prophet Muhammad.” Id. 

A cartoon that was submitted as an ad to WMATA “raised 

concerns, because some Muslims consider drawing the Prophet 

Mohammed so offensive that they have reacted violently to 

such depictions in the past.” Id. (differing spellings in 

original). “WMATA was aware that two gunmen were killed 

after they attempted to attack the building where the contest . . 

. was being held.” Id. Additionally, a survey showed that 

“98% of the public was familiar with the types of ads found on 

buses, in trains, and in stations,” that “58% opposed issueoriented ads,” and that “46% were extremely opposed to . . . 

issue-oriented ads.” Id. ¶ 14. 

On November 19, 2015, the WMATA Board of Directors, 

with representatives from Maryland, Virginia, and the District 

of Columbia, decided to narrow the subjects that it would 

accept in WMATA advertising space. Upon resolving that 

WMATA’s advertising space is closed “to issue-oriented ads, 

including political, religious and advocacy ads,” Res. 2015-55,

the Board adopted Guidelines Governing Commercial 

Advertising, (Nov. 19, 2015) (eff. 30 days after adoption), 

including Guideline 12 prohibiting “[a]dvertisements that 

promote or oppose any religion, religious practice or belief.” 
6 

The Board concluded that any economic benefit derived from 

issue-oriented advertising was outweighed by four 

considerations: (1) complaints from its employees, community 

opposition and outcry, and adverse publicity for WMATA; (2) 

security concerns from the Metro Transit Police Department 

and the United States Department of Homeland Security; (3) 

vandalism of WMATA property; and (4) the administrative 

burden associated with the time-intensive process of reviewing 

proposed ads and responding to complaints about ads. 

Bowersox Decl. ¶¶ 9–13. Since the Guidelines took effect, 

WMATA has regularly rejected ads as non-compliant with its 

Guidelines, including Guideline 12. See id. ¶ 17 & Ex. C. 

The “Find the Perfect Gift” ad that the Archdiocese seeks 

to have WMATA place on the exterior of its buses depicts a 

starry night and the silhouettes of three shepherds and sheep on 

a hill facing a bright shining star high in the sky, along with the 

words “Find the Perfect Gift.” The ad includes a web address 

and a social media hashtag. Its website, although still under 

construction when the ad was submitted to WMATA, 

“contained substantial content promoting the Catholic 

Church,” including “a link to ‘Parish Resources,’ . . . a way to 

‘Order Holy Cards,’ and . . . religious videos and ‘daily 

reflections’ of a religious nature.” Id. ¶ 19. The Archdiocese 

explains that “[t]he ‘Find the Perfect Gift’ campaign is an 

important part of [its] evangelization efforts,” Decl. of Dr. 

Susan Timoney, S.T.D., Sec’y for Pastoral Ministry and Social 

Concerns, Archdiocese of Wash., ¶ 4 (Nov. 27, 2017) 

(“Timoney Decl.”), “welcoming all to Christmas Mass or . . . 

joining in public service to help the most vulnerable in our 

community during the liturgical season of Advent,” Decl. of 

Edward McFadden, Sec’y of Commns., Archdiocese of Wash., 

serving Cardinal Donald Woerl, ¶ 3 (Nov. 27, 2017) 

(“McFadden Decl.”). Dr. Timoney advises: “It is critically 

important for the goals of the . . . campaign that the 
7 

Archdiocese begin spreading its message before the Advent 

season” because “[t]he Roman Catholic Church teaches” that 

in “sharing in the long preparation for the Savior’s arrival with 

the first Christmas, we renew our ardent desire for Christ’s 

second coming.” Timoney Decl. ¶ 5. 

When the Archdiocese sought to purchase space for the 

“Find the Perfect Gift” ad on the exterior of Metrobuses, 

WMATA declined on the ground that it was impermissible 

under Guideline 12 “because it depicts a religious scene and 

thus seeks to promote religion.” McFadden Decl. ¶¶ 7, 12, 16 

(internal quotations omitted). On November 28, 2017, the 

Archdiocese filed a complaint for declaratory and injunctive 

relief under the First Amendment’s Free Speech and Free 

Exercise Clauses, RFRA, and the Fifth Amendment’s 

guarantees of due process and equal protection. The 

Archdiocese sought a declaration that Guideline 12 was 

unconstitutional under the First and Fifth Amendments and 

violated RFRA, and an injunction preventing WMATA from 

enforcing Guideline 12 to reject the Archdiocese’s ad. 

 The district court denied the Archdiocese’s motion for a 

temporary restraining order (“TRO”) and preliminary 

injunction. 281 F. Supp. 3d 88 (D.D.C. 2017). Concluding the 

Archdiocese was not likely to succeed on the merits, the court 

ruled that Guideline 12 was consistent with the Free Speech 

Clause as a viewpoint neutral and reasonable regulation in a 

non-public forum, and that Guideline 12 did not burden the 

Archdiocese’s right to free exercise as a neutral and generally

applicable regulation not singling out religious activity for 

suppression. 281 F. Supp. 3d at 102–05, 107–14. The court 

also rejected the Archdiocese’s arguments based on RFRA and 

the Fifth Amendment’s Due Process and Equal Protection 

Clauses. Id. at 115–16. The court further concluded that the 

three other preliminary injunction factors did not weigh in 
8 

favor of granting injunctive relief, including because the 

Archdiocese’s “irreparable harm argument rises and falls with 

its merits arguments.” Id. at 116. 

The Archdiocese appealed and filed an emergency motion 

for an injunction pending appeal, “preventing WMATA from 

denying the Archdiocese’s ‘Find the Perfect Gift’ campaign,” 

and an expedited appeal on the merits. This court denied the 

motion for a mandatory injunction pending appeal on 

December 20, 2017, but set an expedited briefing schedule. 

After initially maintaining the case is moot because Advent has

passed, the government desisted once the Archdiocese 

indicated it “specifically intend[s] to ask to run this exact ad in 

the next Advent season,” Oral Arg. Tr. 27 (Mar. 26, 2018) 

(counsel for WMATA). 

II. 

A preliminary injunction is an “extraordinary remedy,” 

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 

(2010) (citation omitted). The moving party must make a 

“clear showing that four factors, taken together, warrant relief: 

likely success on the merits, likely irreparable harm in the 

absence of preliminary relief, a balance of the equities in its

favor, and accord with the public interest.” League of Women 

Voters v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (citations 

omitted). This court “reviews the district court’s legal 

conclusions as to each of the four factors de novo, and its 

weighing of them for abuse of discretion.” Id. at 6–7 (citing 

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 

(D.C. Cir. 2009)). 

 
9 

A. 

On appeal, the Archdiocese contends that Guideline 12 

“unconstitutionally abridges . . . free speech rights by 

suppressing religious viewpoints on subjects that WMATA 

otherwise allows on bus exteriors.” Appellant’s Br. 13 

(emphasis in original). The Archdiocese also contends that 

WMATA enforces Guideline 12 “arbitrarily by permitting 

some religious speech while excluding the Archdiocese’s,” 

which “violates the First Amendment’s free speech guarantee.” 

Id. at 14. Further, the Archdiocese contends that Guideline 12 

“raises problems under the Religion Clauses and RFRA” 

because “WMATA’s exclusion of all religious speech from bus 

exteriors and its interference with the Archdiocese’s religious

exercise violates the Free Exercise Clause and RFRA, and 

WMATA’s arbitrary enforcement puts it in the position of a 

religious censor . . . favor[ing] some religions over others in

violation of the Establishment Clause (and equal protection 

principles).” Id. 

1. To determine whether the Archdiocese has shown 

that it is likely to prevail on the merits requires a threshold

determination of the nature of the forum at issue. The Supreme

Court recently reaffirmed its “‘forum-based’ approach for 

assessing restrictions that the government seeks to place on the 

use of its property.” Minn. Voters Alliance v. Mansky, 138 S. 

Ct. 1876, 1885 (2018) (quoting Int’l Soc. For Krishna 

Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)). The 

Supreme Court has long recognized that “[e]ven protected 

speech is not equally permissible in all places and at all times” 

and that the government is not “require[d] . . . freely to grant 

access to all who wish to exercise their right to free speech on 

every type of [g]overnment property without regard to the 

nature of the property or to the disruption that might be caused 

by the speaker’s activities.” Cornelius, 473 U.S. at 799–800.
10 

Under the forum doctrine, the Supreme Court 

acknowledges that “[t]he existence of a right of access to public 

property and the standard by which limitations upon such right 

must be evaluated differ depending on the character of the 

property at issue.” Perry Educ. Ass’n, 460 U.S. at 44. The 

Court identified three categories of property. First, public 

forums are “places which by long tradition or by government 

fiat have been devoted to assembly and debate,” such as 

sidewalks or parks, where “the rights of the state to limit 

expressive activity are sharply circumscribed.” Id. at 45. To 

enforce a content-based exclusion in a public forum, the 

regulation must satisfy strict scrutiny. Id. (citing Carey v. 

Brown, 447 U.S. 455, 461 (1980)). Second, designated public 

forums are those in which the government has “opened” public 

property “as a place for expressive activity.” Id. “Although 

[the government] is not required to indefinitely retain the open 

character of the facility, as long as it does so it is bound by the 

same standards as apply in a traditional public forum.” Id. at 

46. Third, a non-public forum is public property which is not 

by tradition or designation a public forum, and “the 

[government] may reserve the forum for its intended purposes, 

communicative or otherwise, as long as the regulation on 

speech is reasonable and not an effort to suppress expression 

merely because public officials oppose the speaker’s view.” Id. 

(citing U.S. Postal Serv. v. Council of Greenburgh Civic 

Ass’ns, 453 U.S. 114, 131 n.7 (1981)). In this third category, 

policy or practice may establish that the property is not held 

open to the public for general debate because “the 

[government], no less than a private owner of property, has 

power to preserve the property under its control for the use to

which it is lawfully dedicated.” Id. (quoting U.S. Postal Serv., 

453 U.S. at 129; citing Greer v. Spock, 424 U.S. 828, 836 

(1976); Adderley v. Florida, 385 U.S. 39, 48 (1966)). 
11 

The Archdiocese fails to show that the advertising space 

on WMATA’s buses is not properly treated as a non-public 

forum. Indeed, the Archdiocese conceded as much in the 

district court, affirming in response to questions that it was 

“conceding at this point that it’s not a public forum” and that

the district court “[did not] have to address that [contrary] 

argument anymore.” 2017 Motion Hg. Tr. at 4–5. The 

Archdiocese further stipulated that the legal standard for nonpublic forums requires there be “no viewpoint discrimination 

and the restrictions that are applied are reasonable in the 

context and based on the purposes of the forum,” id. at 3–4, the 

standard to which its briefs to this court have conformed. Its

attempt to backtrack now comes too late, see United States v. 

Olano, 507 U.S. 725, 733 (1993); Singleton v. Wulff, 428 U.S. 

106, 120 (1976), because other than pointing to the emergency 

nature of the TRO proceeding, the Archdiocese offers no 

explanation why this court should depart from the usual 

practice of deeming concessions in the district court waived for 

the purposes of appeal, see, e.g., Flynn v. Comm’r, 269 F.3d 

1064, 1068–69 (D.C. Cir. 2001). 

Even absent the Archdiocese’s concession, it is clear that 

WMATA’s advertising space is a non-public forum. Having 

treated its advertising space as an open forum, WMATA’s 

Board of Directors in 2015 made a considered decision based 

on experience to “close[]” its advertising space to specific 

subjects. Res. 2015-55. The Supreme Court’s has recognized 

that “a state is not required to indefinitely retain the open 

character of [a designated public forum],” Perry Educ. Ass’n, 

460 U.S. at 46, and that it may instead choose to convert a 

designated public forum back into a non-public forum because 

“the government retains the choice” regarding the status of its

forum, Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 

666, 680 (1998); see Cornelius, 473 U.S. at 802, 803–04; 

Lehman, 418 U.S. at 304 (plurality opinion). Previously, this 
12 

court concluded that by accepting political advertising 

WMATA had designated its subway stations public forums. 

Lebron v. WMATA, 749 F.2d 893, 896 (D.C. Cir. 1984); see 

also Am. Freedom Def. Initiative v. MTA, 109 F. Supp. 3d 626, 

628 (S.D.N.Y. 2015), aff’d, 815 F.3d 105 (2d Cir. 2016). 

Having plainly evinced its intent in 2015 to close WMATA’s 

advertising space to certain subjects, the Board of Directors 

converted that space into a non-public forum in the manner 

contemplated by the Supreme Court. See Cornelius, 473 U.S. 

at 803–04. 

Treatment of WMATA’s advertising space as a non-public 

forum is consistent with longstanding Supreme Court 

precedent. In Lehman, the First Amendment challenge arose 

with respect to prohibiting political advertising on city buses. 

The Court held that advertising space on public transit was 

properly treated as a non-public forum because a “bus is plainly 

not a park or sidewalk or other meeting place for discussion” 

but rather “only a way to get to work or back home.” Lehman, 

418 U.S. at 306 (Douglas, J., concurring); see also Cornelius, 

473 U.S. at 803–04. The Court drew on its precedent 

distinguishing between “traditional settings where First 

Amendment values inalterably prevail,” and “commercial 

venture[s],” where “[p]urveyors of goods and services saleable 

in commerce may purchase advertising space.” Lehman, 418 

U.S. at 302–04 (plurality opinion) (internal quotation marks 

and citation omitted); id. at 305–06. (Douglas, J. concurring). 

In view of concerns about jeopardizing advertising revenues 

and “lurking doubts about favoritism, and sticky administrative

problems [that] might arise in parceling out limited space,” the 

Court concluded “the managerial decision to limit car card 

space to innocuous and less controversial commercial and 

service oriented advertising does not rise to the dignity of a 

First Amendment violation.” Id. at 304 (plurality opinion); see 

also id. at 305–06 (Douglas, J., concurring). A contrary 
13 

conclusion would mean “display cases in public hospitals, 

libraries, office buildings, military compounds, and other 

public facilities immediately would become Hyde Parks open 

to every would-be pamphleteer and politician.” Id. at 304 

(plurality opinion). 

The Archdiocese attempts to distinguish WMATA’s bus 

exteriors from the public transit advertising space in Lehman

because they “reach[] an audience in a quintessential public 

forum.” Appellant’s Br. 17 n.1. But it points to no precedent

that visibility from a quintessential public forum, like a park or 

street, renders a non-public forum public or alters its status for 

the purposes of First Amendment analysis; were that the law, 

then the mere visibility of the Supreme Court plaza from the 

sidewalk, or of a military installation to passersby, might 

convey a constitutional obligation to host expression. The 

Archdiocese also attempts to distinguish Lehman because bus 

exteriors are “unlike the interiors with their distinct captive

audience problems addressed in [Lehman].” Id. The rationale 

in Lehman was not so limited. The Supreme Court concluded 

that a city does not “by selling advertising space . . . turn[] its 

buses into free speech forums.” Lehman, 418 U.S. at 305–06 

(Douglas, J., concurring); cf. Marks v. United States, 430 U.S. 

188, 193 (1977) (citation omitted). 

The Supreme Court, in citing Lehman with approval in 

Cornelius, 473 U.S. at 803–04, underscored that transit 

systems, unlike spaces like parks and sidewalks that have 

historically been used for congregation and discussion, have a 

utilitarian purpose that governments are entitled to maintain, at 

least where they have provided a non-speech-suppressive 

rationale for regulation. City buses, by contrast, enjoy no 

historical tradition like parks and sidewalks because transit was 

a private enterprise in most American cities until the second 

half of the twentieth century. See George M. Smerk, Urban 
14 

Mass Transportation: From Private to Public to Privatization, 

26 TRANSPORTATION J. 83, 83–84 (1986); Jay Young, 

Infrastructure: Mass Transit in 19th- and 20th-Century Urban 

America, OXFORD RESEARCH ENCYCLOPEDIA OF AMERICAN 

HISTORY, 5 & n. 30 (Mar. 2015) (citing DAVID E. NYE,

ELECTRIFYING AMERICA: SOCIAL MEANINGS OF A NEW 

TECHNOLOGY, 1880-1940 at 90–91 (Cambridge: MIT Press 

1992)).

2. WMATA’s decision in Guideline 12 was 

consonant with recognition by the Supreme Court that the 

government has wide latitude to restrict subject matters — 

including those of great First Amendment salience, see Minn. 

Voters Alliance, 138 S. Ct. at 1885–86 (collecting citations on 

political speech); Cornelius, 473 U.S. 788 (political speech); 

Rosenberger, 515 U.S. at 831 (religious speech) — in a nonpublic forum as long as it maintains viewpoint neutrality and 

acts reasonably. Far from undermining First Amendment 

values, the Court has understood the latitude afforded the 

government in regulating a non-public forum to promote these 

values. The non-public forum preserves some speech where 

there is no constitutional obligation to do so. The Court 

explained: 

The Cornelius distinction between general and 

selective access furthers First Amendment interests. 

By recognizing the distinction, we encourage the 

government to open its property to some expressive 

activity in cases where, if faced with an all-or-nothing 

choice, it might not open the property at all. That this 

distinction turns on governmental intent does not 

render it unprotective of speech. Rather, it reflects the 

reality that, with the exception of traditional public 

fora, the government retains the choice of whether to 
15 

designate its property as a forum for specified classes 

of speakers. 

Arkansas Educ. Television Comm’n, 523 U.S. at 680. The 

government need not be forced into the choice between “the 

prospect of cacophony, on the one hand, and First Amendment 

liability, on the other.” Id. at 681. 

In addition to preserving speech, the non-public forum 

doctrine, by requiring that the government prospectively and 

categorically set subject matter regulations, see Rosenberger, 

515 U.S. at 829, preserves the government’s ability to manage 

potentially sensitive non-public forums while cabining its 

discretion to censor messages it finds more or less 

objectionable. This constraint is especially important in the 

context of religious speech, given our cultural and 

constitutional commitment to religious liberty and the historic

role of religiously motivated dissent from government 

orthodoxy in the development of free-speech rights. See, e.g., 

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). 

Because Guideline 12 prohibits religious and anti-religious ads

in clear, broad categories, bureaucrats are not called upon to 

decide whether the ad criticizing the Catholic Church’s 

position on condom usage, or the anti-Islam Muhammad ad, or 

the Find a Perfect Gift campaign ad is the more “offensive,” or

otherwise censor religious messages. WMATA’s subjectbased prohibition abides by the Supreme Court’s recognition 

that “[i]f there is any fixed star in our constitutional 

constellation, it is that no official, high or petty, can prescribe 

what shall be orthodox in politics, nationalism, religion, or 

other matters of opinion.” Barnette, 319 U.S. at 642; see 

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm’n, 

138 S. Ct. 1719, 1731 (2018). 
16 

 The Archdiocese’s position would eliminate the 

government’s prerogative to exclude religion as a subject 

matter in any non-public forum. It contends Supreme Court 

precedent prohibits governments from banning religion as a 

subject matter, and that Guideline 12 is unconstitutional for that 

reason. Not only is this position contrary to the Supreme 

Court’s recognition that governments retain the prerogative to 

exclude religion as a subject matter, see Rosenberger, 515 U.S. 

at 831, it would also undermine the forum doctrine because the 

Archdiocese offers no principled reason for excepting religion 

from the general proposition that governments may exclude 

subjects in their non-public forums. Although religious speech

might be an exception either because it is highly valuable or 

because it receives specific protection in the First Amendment,

the same can be said of political speech on which the Supreme 

Court has upheld bans against constitutional challenges. See, 

e.g., Arkansas Educ. Television Comm’n, 523 U.S. at 669; 

Cornelius 473 U.S. 788. The Archdiocese’s position could 

have sweeping implications for what speech a government may 

be compelled to allow once it allows any at all, even forcing a

choice between opening non-public forums to almost any 

private speech or to none, which the Supreme Court 

acknowledged in Arkansas Educational Television 

Commission, 523 U.S. at 680, was not merely hypothetical. 

 The Archdiocese contends also that, notwithstanding 

whether the exclusion of religion could ever be constitutional 

in any non-public forum, Guideline 12 is unconstitutional 

because, like the restrictions challenged in Rosenberger, 

Lamb’s Chapel v. Center Moriches Union Free School Dist., 

508 U.S. 384 (1993), and Good News Club v. Milford Central 

School, 533 U.S. 98 (2001), it suppresses the Archdiocese’s 

religious viewpoint on subjects that are otherwise includable in 

the forum. But far from being an abrogation of the distinction

between permissible subject matter rules and impermissible 
17 

viewpoint discrimination, each of these cases represents an 

application of the Supreme Court’s viewpoint discrimination 

analysis, of which Guideline 12 does not run afoul. In each, 

the Court held that the government had engaged in 

unconstitutional viewpoint discrimination because the 

challenged regulation operated to exclude religious viewpoints 

on otherwise includable topics. An examination of each case 

demonstrates the contrast between the breadth of subjects 

encompassed by the forums at issue and WMATA’s in which, 

unlike the restrictions struck down by the Court, Guideline 12 

does not function to exclude religious viewpoints but rather 

proscribes advertisements on the entire subject matter of 

religion. 

 In Rosenberger, the University’s Guidelines stated that 

“the purpose of the [Student Activities Fund (“SAF”)]” was “to 

support a broad range of extracurricular student activities that 

‘are related to the educational purpose of the University,’” 

because “the University[] ‘recogni[zed] that the availability of 

a wide range of opportunities’ for its students ‘tends to enhance 

the University environment.’” Rosenberger, 515 U.S. at 824 

(quoting Appendix to Pet. for Cert. 26, 61a). Its Guidelines 

“recognize[d] 11 categories of student groups that may seek 

payment to third-party contractors because they ‘are related to

the educational purpose of the University of Virginia,’” 

including “student news, information, opinion, entertainment, 

or academic communications media groups.” Id. (quoting 

Appendix to Pet. for Cert. 61a–62a). The University denied 

funding for Wide Awake: A Christian Perspective at the 

University of Virginia, “invok[ing]” a Guideline “prohibit[ing] 

. . . funding on behalf of publications that primarily promot[e] 

or manifes[t] a particular belie[f] in or about a deity or an 

ultimate reality.” Id. at 836 (internal quotation marks omitted). 

The Supreme Court found this Guideline to “effect[] a 

sweeping restriction on student thought . . . in the context of
18 

University sponsored publications” and held the Guideline was 

viewpoint discriminatory because “[b]y the very terms of the 

SAF prohibition, the University does not exclude religion as a 

subject matter but selects for disfavored treatment those 

student journalistic efforts with religious editorial viewpoints.” 

Id. at 831, 836 (emphasis added). The Court concluded that 

“[t]he prohibited perspective, not the general subject matter, 

resulted in the refusal to make third-party payments, for the 

subjects discussed [in Wide Awake] were otherwise within the 

approved category of publications.” Id. at 831.

 In Lamb’s Chapel, the school property could be used for 

“the holding of ‘social, civic and recreational meetings and 

entertainments, and other uses pertaining to the welfare of the

community,’” but it could “not be used by any group for 

religious purposes.” Lamb’s Chapel, 508 U.S. at 386–87 

(quoting New York Educ. Law § 414(1)(c) & Appendix to Pet. 

for Cert. 57a). When an evangelical church in the community 

and its pastor applied for permission to use school facilities to 

show lectures by Doctor James Dobson on his “views on the 

undermining influences of the media that could only be 

counterbalanced by returning to traditional, Christian family 

values instilled at an early stage,” that is, a “[f]amily oriented 

movie — from a Christian perspective,” permission was 

denied. Id. at 387–89 (citation omitted). The Supreme Court, 

acknowledging that “[t]here is no suggestion from the courts 

below or from the [school] District or the State that a lecture or 

film about child rearing and family values would not be a use 

for social or civic purposes otherwise permitted,” reasoned that 

because “[t]hat subject matter is not one . . . off limits to any 

and all speakers,” the government had impermissibly “denie[d] 

access to a speaker solely to suppress the point of view he 

espouses on an otherwise includable subject.” Id. at 393–94 

(quoting Cornelius, 473 U.S. at 806) (emphasis added). 
19 

Similar circumstances were present in Good News Club, 

where the Milford Central School “enacted a community use 

policy” stating purposes “for which its building could be used 

after school,” including that “district residents may use the 

school for ‘instruction in any branch of education, learning or

the arts’” and that “the school is available for ‘social, civic and 

recreational meetings and entertainment events, and other uses 

pertaining to the welfare of the community, provided that such 

uses shall be nonexclusive and shall be opened to the general 

public.” Good News Club, 533 U.S. at 102 (quoting Appendix 

to Pet. for Cert. D1–D3). When the “sponsors of the local Good

News Club, a private Christian organization for children ages 

6 to 12,” sought to use the school’s facilities “to have ‘a fun

time of singing songs, hearing a Bible lesson and memorizing 

scripture,’” the district’s interim superintendent denied their

request on the ground that their proposed use “was ‘the 

equivalent of religious worship.’” Id. at 103 (quoting Appendix 

to Pet. for Cert. H1–H2). The Supreme Court held that the 

school’s “exclusion of the Good News Club based on its 

religious nature is indistinguishable from the exclusions in 

[Rosenberger and Lamb’s Chapel]” and “that the exclusion 

constitutes viewpoint discrimination” because there was “no 

question that teaching morals and character development to 

children is a permissible purpose under Milford’s policy” and 

“it is clear that the [Good News] Club teaches moral and 

character development to children,” but was excluded from the 

use of school facilities “because Milford found the Club’s 

activities to be religious in nature.” Id. at 107–08. 

The restriction in WMATA Guideline 12 is unlike those 

challenged in this trio of cases. In each case the property had 

been opened to a wide range of subjects without excluding 

religion and disallowing a religious viewpoint to be expressed 

in those forums was unconstitutional. To the extent those cases 

can be read to blur the line between religion-as-subject-matter
20 

and a religious viewpoint, the Supreme Court’s analysis 

emphasizes the breadth of the forums involved: the “broad 

range” of activities in service of “educational purpose” 

contemplated in Rosenberger, 515 U.S. at 824, and the 

capacious range of “social, civic and recreational meetings and

entertainments, and other uses pertaining to the welfare of the

community” that might have been permitted in Lamb’s Chapel, 

508 U.S. at 386, and Good News Club, 533 U.S. at 102. By 

contrast, WMATA’s forum — its advertising space on the 

exteriors of its buses — is not so broad, much less inviting 

through its advertisements public debate on religion. Given the 

express boundaries and narrow character of WMATA’s forum, 

the Archdiocese’s “Find the Perfect Gift” ad does not represent

an excluded viewpoint on an otherwise includable subject. The 

rejection of its ad instead reflects WMATA’s implementation 

of a policy that the Supreme Court has deemed permissible in 

a non-public forum, namely the “exclu[sion of] religion as a 

subject matter,” Rosenberger, 515 U.S. at 831; see Lamb’s 

Chapel, 508 U.S. at 393. 

The precedents from our sister circuits on which the 

Archdiocese relies do not disturb this understanding of the trio 

of Supreme Court cases. Although the Archdiocese maintains 

that Rosenberger does not permit the government to ban 

religion as a subject matter, Appellant’s Br. 22–23, and that the 

circuit cases “interpret[] Rosenberger in just this way[,]” 

“reject[ing] arguments materially indistinguishable from 

WMATA’s effort to defend the exclusion of religion and 

religious viewpoints,” Appellant’s Br. 23, in fact these cases 

underscore that precedent requires an evaluation of the forum 

the government has created in order to determine whether a 

challenged regulation discriminates on the basis of viewpoint, 

and are an application of that analysis, rather than an 

affirmation of the principle that religion as a subject may never 

be banned in a non-public forum. 
21 

Of the cases the Archdiocese cites, only the Second Circuit 

has directly addressed whether Rosenberger permits the 

exclusion of religion as a subject matter from a non-public 

forum. Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010) 

concerned a forum much broader in scope than WMATA’s. 

Vermont’s regulation of vanity license plates allowed motorists

to place secular messages relating to their “personal 

philosophy, beliefs, and values . . . identity and affiliation . . . 

and statements of inspiration,” but excluded religious messages

“on matters of self-identity or . . . statements of love, respect, 

or inspiration.” Id. at 57. The Second Circuit held that the 

State had engaged in viewpoint discrimination because it 

“distinguish[ed] between those who seek to express secular and 

religious views on the same subjects.” Id. at 56–57 (emphasis 

in original). Although observing that “Lamb’s Chapel, 

Rosenberger, and Good News Club, read together, sharply 

draw into question whether a blanket ban such as Vermont’s on 

all religious messages in a forum that has otherwise been 

broadly opened to expression on a wide variety of subjects can 

neatly be classified as purely a ‘subject matter’ restriction for 

purposes of First Amendment analysis,” the court declined to 

“address bans on religious speech in forums limited to 

discussion of certain, designated topics,” id. at 58–59. The 

court’s holding thus accords with WMATA’s view that the 

government may in a non-public forum it has established for 

its advertising space proscribe religion as a subject matter 

consistent with the Supreme Court’s precedent. This view also 

accords with that of the Ninth Circuit, which has held that 

Rosenberger permits a school district seeking to avoid 

“disruption” to proscribe display of religious messages in a 

non-public forum reserved for commercial messages. See 

DiLoreto v. Downey Unified School Dist., 196 F.3d 958, 967–

70 (9th Cir. 1999). 
22 

 The other circuit cases that the Archdiocese cites aid it 

even less because they do not construe Rosenberger, but apply 

it to invalidate as viewpoint discriminatory government 

policies that sought to exclude religious viewpoints on 

otherwise includable topics in a non-public forum. The 

Seventh Circuit struck down the exclusion of religious 

“seasonal displays” where “comparable secular holiday 

displays by other private groups are permitted,” Grossbaum v. 

Indianapolis-Marion County Bldg. Auth., 63 F.3d 581, 588 (7th 

Cir. 1995), and prior to Rosenberger had struck down a policy 

prohibiting the distribution of religious literature in school 

where only “obscenity and libel” were similarly prohibited, 

Hedges v. Wauconda Comm. Unit School Dist. No. 118, 9 F.3d 

1295, 1297–98 (7th Cir. 1993). The Eighth Circuit cited 

Lamb’s Chapel in invalidating a school district policy 

permitting “any speech relating to moral character and youth 

development” but excluding a club that wished to speak on that 

topic from a religious perspective. Good News/Good Sports 

Club v. School Dist. of Cty. of Ladue, 28 F.3d 1501, 1506 (8th 

Cir. 1994). The Tenth Circuit simply reiterates the principle 

that “[i]f . . . the government permits secular displays on a 

nonpublic forum, it cannot ban displays discussing otherwise 

permissible topics from a religious perspective,” Summum v. 

Callaghan, 130 F.3d 906, 918 (10th Cir. 1997). 

 The Archdiocese nonetheless contends that Guideline 12 

suppresses its religious viewpoint to the extent it wishes to 

address topics such as charitable giving, Christmas, and 

opening hours on which WMATA allows non-religious but not 

religious messages. Similarly, the Franciscan Monastery USA, 

one of the Archdiocese’s amici, maintains that its ad exhorting

viewers to visit the Franciscan Monastery of the Holy Land in 

America expresses its religious viewpoint on places to visit, on 

which WMATA allows secular but not religious messages. 

These contentions are unpersuasive because the subjects on 
23 

which the Archdiocese and the Monastery claim they wish to 

speak through advertisements on WMATA buses are either not 

subjects within the forum or are not subjects on which they 

have shown they could not speak under Guideline 12. 

The Archdiocese’s “Find the Perfect Gift” ad is not 

primarily or recognizably about charitable giving, as it is not

primarily or recognizably about opening hours or places to 

visit. Like the Monastery’s ad, the Archdiocese’s ad is a 

religious ad, an exhortation, repeatedly acknowledged by the 

Archdiocese to be part of its evangelization effort to attend 

mass at Catholic churches in connection with Advent. 

Timoney Decl. ¶ 4; McFadden Decl. ¶ 3. The imagery of the 

Archdiocese’s “Find the Perfect Gift” ad is evocative not of the 

desirability of charitable giving, but rather the saving grace of 

Christ, which is not a subject included in the WMATA forum. 

Had the Archdiocese wished to submit an ad encouraging 

charitable giving, nothing in the record suggests it could not do 

so. WMATA accepted the ad of the Salvation Army, a 

religious organization whose ad exhorted giving to charity but 

contained only non-religious imagery. WMATA 

acknowledged in the district court, 2017 Mot. Hg. Tr. at 64, 

and again in this court that it would not reject as running afoul 

of Guideline 12 an ad from the Archdiocese that read “[P]lease 

[G]ive to Catholic Charities,” Oral Arg. Tr. 31. 

Nor has the Archdiocese pointed to an ad WMATA has 

accepted addressing Christmas except for commercial ads for 

Christmastime sales of goods. From these ads the Archdiocese 

concludes that Guideline 12 impermissibly excludes a religious 

viewpoint on Christmas while permitting a secular one. The 

Supreme Court, however, has rejected the view that accepting 

commercial advertising “create[s] a forum for the 

dissemination of information and expression of ideas” and 

“sanction[s] . . . [a] preference for . . . commercialism.” 
24 

Lehman, 418 U.S. at 310, 315 (Brennan, J., dissenting); see id. 

at 302 (plurality opinion) (citations omitted); id. at 305–06, 308 

(Douglas, J., concurring) (citations omitted). So understood, 

ads promoting Christmastime sales are not expressing a view 

on Christmas any more than a McDonald’s ad expresses a view 

on the desirability of eating beef that demands the acceptance 

of a contrary ad from an animal rights group, or than a 

Smithsonian Air and Space Museum ad for a special stargazing 

event expresses a view on the provenance of the cosmos that 

demands a spiritual response. Commercial advertisements are 

designed to sell products: As the district court observed in 

noting the Archdiocese’s evidentiary shortcomings for its 

argument that WMATA accepts advertisements that promote 

the commercialization of Christmas, commercial 

advertisements “proclaim: Shop Here! Buy This!” while saying 

nothing about the sellers’ viewpoints on how Christmas should 

be observed. 281 F. Supp. 3d at 104. Or in terms used by the 

Supreme Court, the ads imploring the purchase of products do 

not invite “debate,” Rosenberger 515 U.S. at 831, about how 

Christmas should be celebrated. Were a court to treat such 

commercial advertising as expressing a broader view, it would, 

furthermore, eviscerate the distinction between viewpointbased and subject-based regulation on which the forum 

doctrine rests, and the longstanding recognition that the 

government may limit a non-public forum to commercial 

advertising. 

 3. Because WMATA’s Guideline 12 is viewpoint 

neutral, the question remains whether “the distinctions drawn 

are reasonable in light of the purpose served by the forum.” 

Cornelius, 473 U.S. at 806 (citing Perry Educ. Ass’n, 460 U.S. 

at 49). The reasonability inquiry is not a demanding one, but 

rather is a “forgiving test.” Minn. Voters Alliance, 138 S. Ct. 

at 1888. The challenged “restriction ‘need not be the most 

reasonable or the only reasonable limitation,’” Hodge v. Talkin, 
25 

799 F.3d 1145, 1165 (D.C. Cir. 2015) (quoting Cornelius, 473 

U.S. at 808), but the regulation must simply be reasonable as 

consistent with the government’s legitimate interest in 

maintaining the property for its dedicated use, Perry Educ. 

Ass’n, 460 U.S. at 46, 51. 

In 2015, WMATA decided to avoid the divisiveness 

caused by certain advertisements and specifically to avoid the 

inflamed passions surrounding religion. Its adoption of 

Guideline 12 reflected a considered judgment after study, and 

including examination of the views of the marketplace. 

WMATA had fielded security concerns arising from the 

controversial ad depicting the Prophet Mohammed, which had 

prompted an armed attack at the place where the cartoon was 

produced. It also had weathered controversy surrounding an 

ad critical of the Catholic Church’s position on condom usage. 

WMATA’s closure of its forum to certain broad subjects is 

reasonable in light of its core purpose and experience, and is 

responsive to the very circumstances that prompted WMATA 

to reevaluate its advertising approach. The non-public forum 

WMATA created has a history not unlike that in Cornelius, 473 

U.S. at 799–800, where the federal government redesigned a 

charity fundraising program in order to avoid workplace 

disruptions; so too WMATA’s decision in 2015 to abandon a 

former approach to its advertising space that interfered with its 

ability to provide safe and reliable transportation “attractive to 

the marketplace,” Int’l Soc. For Krishna Consciousness, 505 

U.S. at 682. 

Although a challenged regulation may be unreasonable, 

regardless of the reasons for its adoption, if it is inconsistently 

enforced, see Minn. Voters Alliance, 138 S. Ct. at 1888–90, the 

Archdiocese has not shown that “WMATA . . . appl[ies] [its] 

policy in arbitrary and unreasonable ways,” Appellant Br. 30. 

The Archdiocese suggests WMATA has been inconsistent 
26 

insofar as it has accepted advertisements from religious 

speakers like the Salvation Army and a Christian radio station 

while rejecting the Archdiocese’s “Find the Perfect Gift” ad. 

In fact, running the Salvation Army’s and the radio station’s 

ads underscores that WMATA is consistently rejecting ads that 

have religious content rather than discriminating against ads 

submitted by religious speakers. The Archdiocese’s 

suggestion that WMATA has been inconsistent because it 

accepted an ad from a yoga studio containing the slogan 

“Muscle + Mantra,” ignores that ad is not recognizably 

religious as the Archdiocese’s ad plainly is, by its own 

characterization. Although a restriction may also be 

unreasonable if it is unclear what speech would be swept in or 

otherwise seriously hamper consistent administration, see 

Minn. Voters Alliance, 138 S. Ct. at 1888–90, given the history 

and experience that prompted WMATA to adopt Guideline 12 

and WMATA’s enforcement of it, the Archdiocese has not 

shown that Guideline 12 has failed to give adequate guidance 

on what is prohibited, or created so many marginal cases that it 

cannot be fairly administered. On the contrary, WMATA has 

articulated a “sensible basis for distinguishing what may come 

in from what must stay out.” Id. at 1888 (citing Cornelius, 473 

U.S. at 80–09). 

The Archdiocese at oral argument clarified its position is 

that Guideline 12 is unreasonable because it is never reasonable 

to discriminate against religion. Oral Arg. Tr. 20–21. If by 

discrimination the Archdiocese refers to animus, there is no 

record evidence of WMATA animus, nor does the Archdiocese 

point to any now. Given Supreme Court precedent in 

Cornelius and Perry Education Association rejecting First 

Amendment challenges to subject matter exclusions in a nonpublic forum, the Archdiocese cannot mean discrimination as 

in demarcation of a subject matter. Any regulation must name 

its subject, and such naming is not the kind of textual hook from 
27 

which a court may infer animus. The Archdiocese’s position 

is inconsistent with Cornelius and Perry Education Association

where the Supreme Court instructs courts to analyze the 

reasonableness of the regulation in light of the purpose of the

forum, not to intuit whether a freestanding regulation seems 

objectionable in isolation. 

On the other hand, if the Archdiocese is objecting to the 

reasonableness standard itself where the subject of religion is

barred in a non-public forum, this is either another attempt to

backtrack from its concession in the district court or to undo 

long-standing precedent in Lehman as well as the forum 

doctrine. Addressing the argument on its own terms, the 

Archdiocese nowhere suggests that WMATA does not have a 

compelling interest in ensuring the safety and reliability of its 

transportation services and operating in a manner that 

maintains the attractiveness of its service to a multi-cultural, 

multi-ethnic, and religiously diverse ridership, including 

visitors to the Nation’s capital and its environs from home and 

abroad, while simultaneously avoiding censorship in accord 

with the principles set forth in Barnette, 319 U.S. at 642. That 

is, even under a heightened standard, Guideline 12 is a 

management tool adopted in light of WMATA’s experience 

that appropriately defines a limited forum for its advertising 

space. 

B. 

The Archdiocese’s likelihood of success on its Free 

Exercise Clause and RFRA arguments is dubious at best. As a 

result, the Archdiocese’s hybrid rights claim, see Appellant’s 

Br. 37, fares no better because it requires independently viable 

free speech and free exercise claims, and “in law as in 

mathematics zero plus zero equals zero.” Henderson v. 

Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001). 
28 

1. Generally, the Free Exercise Clause does not 

exempt individuals from complying with neutral laws of 

general applicability. See Levitan v. Ashcroft, 281 F.3d 1313, 

1318 (D.C. Cir. 2002) (citing Employment Div., Dep’t of 

Human Resources v. Smith, 494 U.S. 872, 878–79 (1990)). 

Non-neutral laws are impermissible because they have as their 

“object . . . to infringe upon or restrict practices because of their 

religious motivation.” Church of the Lukumi Babalu Aye v. 

Hialeah, 508 U.S. 520, 533 (1993); see also American Family 

Ass’n Inc. v. FCC, 365 F.3d 1156, 1170–71 (D.C. Cir. 2004). 

As the Supreme Court explained in Lukumi Babalu, “[t]here 

are . . . many ways of demonstrating that the object or purpose

of a law is the suppression of religion or religious conduct.” 

Lukumi Babalu, 508 U.S. at 533. The Court “begin[s] with its 

text” and then considers whether there might be “governmental 

hostility which is masked, as well as overt.” Id. at 533–34. The 

“[f]actors relevant to the assessment of governmental neutrality 

include ‘the historical background of the decision under 

challenge, the specific series of events leading to the enactment 

or official policy in question, and the legislative or 

administrative history, including contemporaneous statements 

made by members of the decisionmaking body.” Masterpiece 

Cakeshop, 138 S. Ct. at 1731 (quoting Lukumi Babalu, 508 

U.S. at 540). 

Nothing in the record indicates Guideline 12 was 

motivated by the “hostility” that motivated the city ordinance 

in Lukumi Babalu. The Archdiocese has made no showing, nor 

purported to make a showing, that the WMATA Board of 

Directors harbored any discriminatory intent or pro- or antireligion bias in its decisionmaking process. Instead, there is

ample record basis from which WMATA could reasonably 

conclude in 2015 that controversial advertisements, including 

advertisements with religious messages, interfered with its 
29 

ability to ensure rider safety and maintain employee morale, 

posed potential security risks, and fostered community 

opposition — all to the detriment of its attractiveness to 

ridership. Contrary to the Archdiocese’s position that a 

discriminatory object is evident because WMATA’s interests 

are not sufficient to support an exclusion of the subject of 

religion and because the District of Columbia allows similar 

advertisements on its stationary bus shelters, Guideline 12 

evinces a level of means-and-ends fit that is inconsistent with

the Archdiocese’s contentions and generally with finding 

discrimination. In the face of experience that running religious 

ads caused controversy and even had the potential to cause 

violence, see Bowersox Decl. ¶¶ 9, 11, WMATA chose to 

exclude the subject of religion from its advertising space. It has 

also offered a secular purpose for doing so, which includes 

maximizing security of its transit system and minimizing 

vandalism of WMATA property. That rationale, and the 

secular basis for which there is no evidence of pretext, is 

inconsistent with finding discrimination. 

Nor does the District of Columbia’s approach to 

advertising on its stationary bus shelters evince any 

irrationality in WMATA’s decisionmaking. The District 

government contracts with Clear Channel Outdoor to 

“provide[] and maintain[] bus shelters throughout the 

metropolitan area, and . . . sell[] advertising at or near the bus 

shelters.” Compl. ¶ 12. WMATA contracts with a different 

company to administer its policy on advertising space of bus 

exteriors. Id. ¶ 16; Bowersox Decl. ¶ 27. The Archdiocese 

provides no reason the District government’s approach for 

stationary space it controls should dictate the degree to which

WMATA, as an interstate compact, is entitled to manage 

advertising space on its buses. 
30 

 Of course, WMATA may not target religious speakers for 

exclusion from a generally available benefit. In Trinity 

Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 

(2017), the state government offered reimbursement grants to 

qualifying nonprofit organizations that installed playground 

surfaces made from recycled tires, but it had an express policy

of denying grants to churches and other religious entities. That 

is, the state “pursued its preferred policy to the point of 

expressly denying a qualified religious entity a public benefit

solely because of its religious character.” Id. at 2024. 

WMATA is not discriminating based on the status of the 

speaker. As is clear, for example, from WMATA’s acceptance 

of the Salvation Army ad, religious speakers are not excluded 

because they are religious speakers. That alone is sufficient to 

distinguish Trinity Lutheran. 

Moreover, unlike Trinity Lutheran, this is a forum case. 

Trinity Lutheran involved a series of criteria for eligibility for 

which the church had “fully qualified,” id. at 2023. WMATA, 

by contrast, has by adopting Guidelines created a forum in 

which the benefit in question — its advertising space — can no 

longer be said to be “generally available.” It would strain 

Trinity Lutheran to read its prohibition on discriminating 

against religious speakers or speakers because of religious 

speech to suggest that exclusion of religion as a subject matter 

is necessarily discrimination against religious speakers. If that 

were the correct understanding of Trinity Lutheran, then it 

would have upended, sub silentio, Rosenberger and Lamb’s 

Chapel as well as the forum doctrine because it would never be 

possible to exclude religion as a subject matter. 

2. The Archdiocese is also unlikely to succeed on its 

RFRA claim for alternative reasons: not only has it failed to 

demonstrate a “substantial[] burden” on its “exercise of 

religion,” 42 U.S.C. § 2000bb-1(a), that is, “substantial 
31 

pressure on an adherent to modify his behavior and to violate 

his beliefs,” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. 

Cir. 2008) (quoting Thomas v. Review Bd., 450 U.S. 707, 718 

(1981)), but also RFRA would appear to be inapplicable to 

WMATA. 

The Archdiocese alleges that advertising on public buses 

provide a “unique and powerful format” for its evangelization 

campaign because it “offers high visibility with consistent daily 

views,” including in “many areas of the metropolitan region 

that are otherwise underserved and that other, more static 

advertising campaigns might miss.” Compl. ¶ 15; see 

McFadden Decl. ¶¶ 8–10. But the Archdiocese has not alleged 

that its religion requires displaying advertisements on 

WMATA’s buses promoting the season of Advent, much less 

the display of any advertisements at all. Instead, the 

Archdiocese has acknowledged that it has many other ways to 

pursue its evangelization efforts: in newspapers, through social 

media, and even on D.C. bus shelters. Compl. ¶¶ 11–12. 

Sincere religious beliefs are not impermissibly burdened by 

restrictions on evangelizing in a non-public forum where a 

“multitude of means” remains for the same evangelization. See 

Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011);

Henderson, 253 F.3d at 17. In these circumstances, the 

Archdiocese has not demonstrated a likelihood of success on 

its RFRA claim. 

Even so, there is a threshold question whether RFRA can 

be constitutionally applied to WMATA. WMATA is an 

interstate compact between two sovereign states and the 

District of Columbia. See D.C. Code § 9-1107.01(4); Md. 

Code Transp. § 10-204(4); Va. Code Ann. § 33.2-3100(4). The 

Supreme Court has held that RFRA cannot constitutionally 

apply to the states, see City of Boerne v. Flores, 521 U.S. 507, 

511 (1997), because it would impermissibly “curtail[] their 
32 

traditional general regulatory power” and impose “substantial 

costs” on the states, id. at 534. Although adding Virginia and 

Maryland to the WMATA Compact may not free the District 

of Columbia from its own obligation to comply with RFRA, 

see Potter v. District of Columbia, 558 F.3d 542, 544 (D.C. Cir. 

2009), the District of Columbia’s compliance with RFRA is not 

at issue. Rather the Archdiocese has challenged WMATA’s 

compliance with RFRA, and WMATA is an instrumentality 

and agency of states to which the Supreme Court has concluded 

RFRA cannot constitutionally apply. Immunities conferred by 

Maryland and Virginia are not lost by the addition of the 

District of Columbia to the Compact. See Morris v. WMATA, 

781 F.2d 218, 228 (D.C. Cir. 1986). 

The Archdiocese’s responds that RFRA applies to 

WMATA because Section 76(e) the Compact provides that if 

WMATA rules violate the laws, ordinances, rules, or 

regulations of a signatory, then the law of that signatory applies 

and the WMATA rule is void. See D.C. Code § 9-

1107.01(76(e)). The Archdiocese’s point would appear to cut 

against it, because the high degree of control each signatory 

retains over WMATA suggests the states did not cede their 

sovereignty by joining the Compact. In any event, it is unclear 

how RFRA could apply only to the District of Columbia as a 

Compact member when Maryland and Virginia have not ceded 

their sovereign prerogatives by joining the Compact, see 

Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614, 632 

(2013); Morris, 781 F.2d at 227. The Archdiocese does not 

suggest that Section 76(e) could be judicially enforceable yet 

unconstitutional. Compacts generally have the status of federal 

law. See Kansas v. Nebraska, 135 S. Ct. 1042, 1053 (2015). 

To the extent enforcement in this context would “curtail[]” 

Maryland’s and Virginia’s “traditional general regulatory 

power,” City of Boerne, 521 U.S. at 534, enforcing the 
33 

Compact provision would produce an unconstitutional result, 

see Texas v. New Mexico, 462 U.S. 554, 564 (1983). 

The immunity issue was not thoroughly briefed by the 

parties, however. Suffice it to say, the Archdiocese’s RFRA 

challenge poses that question as an antecedent issue due to the

presence of two sovereign states in the Compact. For now the 

court need only conclude that the Archdiocese has not 

demonstrated that it is likely to prevail on the merits of its 

RFRA challenge, either due to the paucity of the TRO record 

or the immunity issue underlying the Archdiocese’s reliance on 

Section 76(e). 

C. 

 The remaining preliminary injunction factors — 

irreparable injury, the balance of equities, and public interest 

— also do not weigh in the Archdiocese’s favor. Although 

“[i]n First Amendment cases, the likelihood of success will 

often be the determinative factor in the preliminary injunction

analysis,” Pursuing America’s Greatness v. FEC, 831 F.3d 

500, 511 (D.C. Cir. 2016) (internal quotation marks and 

citation omitted), this court has not yet decided whether Winter 

v. National Resources Defense Council, 555 U.S. 7, 20–22 

(2008), is properly read to suggest a “sliding scale” approach 

to weighing the four factors be abandoned, see League of 

Women Voters, 838 F.3d at 7 (citation omitted). The instant 

case likewise “presents no occasion for the court to decide 

whether the ‘sliding scale’ approach remains valid after 

Winter.” Id. 

 Were the Archdiocese to show a likelihood of success on 

the merits, see supra Part II.A & B, it would prevail on the final 

three factors because “the loss of constitutional freedoms, ‘for 

even minimal periods of time, unquestionably constitutes 
34 

irreparable injury,’” Mills v. District of Columbia, 571 F.3d 

1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 

347, 373 (1976) (plurality opinion)). This court has defined the 

irreparable injury analysis to “examine only whether [the 

constitutional] violation, if true, inflicts irremediable injury,” 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 

303 (D.C. Cir. 2006), because the harm both is “certain and 

great,” “actual and not theoretical,” and “imminen[t],” and also 

“beyond remediation,” id. at 297 (citation omitted). 

Conversely, the deprivation of constitutional rights constitutes 

irreparable injury only to the extent such deprivation is shown

to be likely. See League of Women Voters, 838 F.3d at 8-9 

(citing Winter, 555 U.S. at 22). The court has no occasion to 

decide whether, see Appellant’s Br. 49, irreparable injury could 

weigh in favor of granting a preliminary injunction where there

is no showing of a likelihood of success on the merits. 

 The same conclusion is true of the final two factors. See

Pursuing America’s Greatness, 831 F.3d at 511 (citing Nken v. 

Holder, 556 U.S. 418, 435 (2009)). The Archdiocese maintains 

there will be no corresponding harm to WMATA if it runs the 

Archdiocese’s “Find the Perfect Gift” ad, and that WMATA 

will benefit because it will have gained advertising revenues. 

WMATA takes the opposite position, having concluded that 

the additional revenue from accepting such ads is outweighed 

by the impact on employee morale, community opposition, 

security concerns, vandalism, and administrative burdens that 

prompted WMATA to adopt the Guidelines. Resolution here 

hinges on the likelihood of success on the merits because while

the costs that WMATA has identified associated with running 

political, religious, and advocacy ads may outweigh the 

marginal benefit of additional advertising revenue, the calculus 

would be different weighing WMATA’s costs against the 

Archdiocese’s suffering a constitutional violation. 
35 

Similarly, although the Archdiocese contends that the final 

factor weighs in its favor because the public interest favors the 

protection of constitutional rights, the strength of the 

Archdiocese’s showing on public interest rises and falls with 

the strength of its showing on likelihood of success on the 

merits. The public interest favors the protection of 

constitutional rights, see, e.g., Gordon v. Holder, 721 F.3d 638, 

653 (D.C. Cir. 2013), but the Archdiocese would need to show 

a likelihood of violation of its constitutional rights, and it has 

not done so. 

 In sum, religious speech and the free exercise of religion 

are of central First Amendment importance. Yet the 

Archdiocese presses an untenable position under Supreme 

Court precedent. By urging a capacious vision of viewpoint 

discrimination, it would effectively prevent the limitation of a 

non-public forum to commercial advertising, and upend 

decades of settled doctrine permitting governments to run 

transit companies without establishing forums for debate on the

controversial issues of the ages and of the day, including not 

only the subject of religion but also politics and advocacy 

issues. Indeed, having allowed any speech, governments might 

be required to accept speech on all subjects because the 

Archdiocese offers no principled limit cabining its position to

religion. Urging the finding of a free exercise violation based 

on no evidence of animus other than Guideline 12’s naming of 

religion, the Archdiocese again invites the court to impute 

hostility on a heretofore unrecognized basis, and with no 

suggestion of how the proscription of the subject of religion 

might otherwise be effected in a non-public forum. This 

position not only finds no support in Supreme Court precedent, 

but would also upend it, something this lower court may not 

do. Accordingly, we affirm the denial of the preliminary 

injunction. 

 
1 

WILKINS, Circuit Judge: I join in the Court’s opinion. I 

write separately to discuss the importance of traditional forum

doctrine to protecting First Amendment values and to 

emphasize that WMATA’s Guideline 12 conforms with those 

values. 

 A founding premise of our political system is that 

government is not a “competent judge” of truth. See James 

Madison, Memorial and Remonstrance Against Religious 

Assessments (1785). That responsibility belongs to the people,

whose superior ability and authority in the marketplace of ideas 

is reflected and secured by the First Amendment. See Turner 

Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) (“At 

the heart of the First Amendment lies the principle that each 

person should decide for himself or herself the ideas and beliefs 

deserving of expression, consideration, and adherence.”). 

Yet the Constitution accommodates those limited 

circumstances in which government must be permitted some 

control over expressive content to carry out its proper 

functions. For instance, the government may “speak[] on its 

own behalf.” Walker v. Tex. Div., Sons of Confederate 

Veterans, Inc., 135 S. Ct. 2239, 2251 (2015). Additionally, the 

government may place speech-restrictive conditions on 

participation in its programs if those conditions are confined to 

the scope of the program. See, e.g., U.S. Agency for Int’l 

Development v. Alliance for Open Society Int’l, Inc., 570 U.S. 

205, 215-17 (2013); FCC v. League of Women Voters of Cal., 

468 U.S. 364, 399-401 (1984). The government may also 

prohibit constitutionally unprotected speech, such as 

defamation or obscenity, so long as the restriction is based on

proscribable content and not “hostility – or favoritism – 

towards the underlying message expressed.” R.A.V. v. City of 

St. Paul, 505 U.S. 377, 386 (1992); see also City of Lakewood 

v. Plain Dealer Pub. Co., 486 U.S. 750, 763-65 (1988). 
2 

These doctrines apply in different contexts but embody the 

same core First Amendment values: “that more speech, not 

less, is the governing rule,” Citizens United v. FEC, 558 U.S. 

310, 361 (2010), and that “the danger of censorship . . . is too 

great where officials have unbridled discretion over a forum’s 

use,” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 

553 (1975). 

To preserve these values within the practical realities of 

government property, the Supreme Court has repeatedly held 

that the government may categorically limit the subject matter 

of private speech in nonpublic forums, provided the limitation 

is reasonably related to the forum’s purposes and, as with 

restrictions on unprotected speech, not a cover for suppressing

viewpoints with which the government disagrees. See 

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 

788, 799-800 (1985) (“Nothing in the Constitution requires the 

Government freely to grant access to all who wish to exercise 

their right to free speech on every type of Government 

property[.]”); see also Perry Educ. Ass’n v. Perry Local 

Educators’ Ass’n, 460 U.S. 37, 49 (1983) (holding that the 

exclusion of communications from one union to potential 

members while allowing communications from another was 

not viewpoint discrimination because there was “no indication 

that the school board intended to discourage one viewpoint and 

advance another” (emphasis added)); Widmar v. Vincent, 454 

U.S. 263, 280 (1981) (“[T]he university . . . may not allow its

agreement or disagreement with the viewpoint of a particular 

speaker to determine whether access to a forum will be 

granted.”) (Stevens, J., concurring); Greer v. Spock, 424 U.S. 

828, 838-39 (1976) (concluding a restriction on partisan speech

was properly applied because “there is no claim that the 

military authorities discriminated in any way among candidates 

for public office based on the candidates’ supposed political 
3 

views”); Initiative & Referendum Inst. v. U.S. Postal Serv., 685 

F.3d 1066, (D.C. Cir. 2012) (A speech restriction in a 

nonpublic forum is permissible if “reasonable and not an effort

to suppress expression merely because public officials oppose 

the speaker’s view.”). Government must be able to 

prospectively set administrable subject-matter-based rules for 

its nonpublic forums if it is to allow any private speech at all. 

But because government favoritism in public debate is so 

pernicious to liberty and democratic decisionmaking, 

otherwise permissible subject-matter restrictions are rendered 

unconstitutional when the government chooses sides within the 

subject matter. Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) 

(“[T]he test for viewpoint discrimination is whether – within 

the relevant subject category – the government has singled out 

a subset of messages for disfavor based on the views 

expressed.”); Good News Club v. Milford Cent. Sch., 533 U.S. 

98, 112 (2001) (“[S]peech discussing otherwise permissible 

subjects cannot be excluded from a limited public forum on the 

ground that the subject is discussed from a religious 

viewpoint.”); Cornelius, 473 U.S. at 806 (The government acts 

unconstitutionally when prohibiting a speaker from expressing 

“[a] point of view he espouses on an otherwise includable 

subject.”). 

Properly understood, the distinction between subject 

matter and viewpoint is critical to forum doctrine’s balance of

the practical need to regulate private speech on nonpublic 

property, on one hand, with maximizing opportunities for 

speech and vigilance against unbridled administrative 

discretion, on the other. See Cornelius, 473 U.S. at 800. 

Without reasonable control over the content of private speech 

in nonpublic forums, government may elect to close a forum 

entirely rather than deal with the administrative burden or 

floodgate consequences of accepting private speech without 

effective subject-matter restrictions. Further, by requiring 
4 

government to set prospective, categorical, subject-matter rules 

by which to evaluate private speech, forum doctrine provides 

public notice of what speech is permissible and constrains the 

discretion of government actors to pick favorites on an ad hoc

basis. See City of Lakewood, 486 U.S. at 758 (“Only standards 

limiting the licensor’s discretion will eliminate this danger [of 

chilling private speech] by adding an element of certainty fatal 

to self-censorship.”); id. at 756-57 (collecting cases and 

explaining that “[a]t the root of this long line of precedent is 

the time-tested knowledge that in the area of free expression a

licensing statute placing unbridled discretion in the hands of a 

government official or agency . . . may result in censorship”).

Guideline 12 fits comfortably within this longstanding 

doctrinal framework. WMATA prohibits “[a]dvertisements 

that promote or oppose any religion, religious practice or 

belief.” J.A. 209 (emphasis added). Guideline 12 is thus a 

categorical subject-matter restriction by its own terms: It 

prohibits any advertisement whatsoever on the subject of 

religious or anti-religious advocacy, whether favoring or 

opposing religion in general, or any particular religion, belief, 

or practice. Cf. Rosenberger v. Rector & Visitors of Univ. of 

Va., 515 U.S. 819, 831 (1995) (“By the very terms of [its 

policy], the University does not exclude religion as a subject 

matter but selects for disfavored treatment those student 

journalistic efforts with religious editorial viewpoints.”). It 

does not take sides; it restricts all speech on the topic equally, 

without discriminating within the defined category. See Minn. 

Voter’s Alliance v. Mansky, 138 S. Ct. 1876, 1886 (2018) (“The 

text of the [ordinance] makes no distinction based on the 

speaker’s political persuasion, so [plaintiff] does not claim that 

the ban [on ‘political’ apparel] discriminates on the basis of 

viewpoint.”); Good News Club, 533 U.S. at 111-12; see also 

R.A.V., 505 U.S. at 388 (“When the basis for the content 

discrimination consists entirely of the very reason the entire 
5 

class of speech at issue is proscribable, no significant danger of 

idea or viewpoint discrimination exists.”). 

By contrast, the speech restrictions struck down in Lamb’s 

Chapel, Rosenberger, and Good News Club each singled out 

religious viewpoints that otherwise fell within prospectively 

defined, permissible subject matter. Stated otherwise, those 

decisions involved rules that permitted private speakers to 

discuss categories A, B, and C, but when a speaker sought to 

discuss C from a pro-religious perspective, they were 

improperly prohibited from doing so. Applying traditional 

forum doctrine, the Supreme Court held that these prohibitions 

unconstitutionally singled out a subset of views within the 

forum’s permissible, previously established subject-matter 

categories. Good News Club, 533 U.S. at 109 (“Like the 

church in Lamb’s Chapel, the Club seeks to address a subject 

otherwise permitted under the rule, the teaching of morals and 

character, from a religious standpoint.”). This approach 

comports with the underlying purposes of forum doctrine: 

Practicality permits government to restrict content within its 

nonpublic forums in a prospective, administrable manner, but 

once the parameters of those restrictions are set, administrators 

cannot further discriminate against a disfavored view that falls 

within those predetermined parameters. 

Here, the Archdiocese does not challenge the exclusion of 

speech that otherwise fits within a permissible subject matter 

category – it challenges the subject-matter category itself. Cf. 

Rosenberger, 515 U.S. at 831 (“[T]he University does not 

exclude religion as a subject matter but selects for disfavored

treatment those student journalistic efforts with religious 

editorial viewpoints.”). The Archdiocese argues that if 

commercial advertisements mentioning the holiday season are 

approved, its religious-advocacy advertisements must also be 

permitted because they share the same holiday-season “subject 
6 

matter” and, therefore, any distinction would be based on 

“viewpoint.” Appellant Br. 19-20. But such alleged 

“viewpoint” discrimination could always be reverseengineered by comparing a prohibited statement with any 

permitted statement – real or hypothetical – and finding some 

kind of subject-matter commonality between the two. This 

improperly inverts the forum-doctrine analysis, ignoring how 

the government prospectively defined permissible subject 

matter for its nonpublic forum in general, and instead focusing

on how a stymied speaker wants to characterize the relevant 

“subject matter” in a particular case. Allowing an individual 

private speaker to retroactively redefine the relevant “subject

matter” whenever her speech is restricted, as the Archdiocese 

would have us do, is not only contrary to how the Supreme 

Court has structured forum analysis, it would make crafting 

administrable content categories for nonpublic forums nearly 

impossible. 

At base, the Archdiocese asks us to erase the Supreme 

Court’s critical distinction between permissible subject-matter

restrictions and impermissible viewpoint discrimination. 

However, as the primary opinion notes, the Supreme Court has 

repeatedly upheld and applied the distinction between subject 

matter and viewpoint. See, e.g., Mansky, 138 S. Ct. at 1885 

(“[O]ur decisions have long recognized that the government 

may impose some content-based restrictions in nonpublic 

forums[.]”); Reed v. Town of Gilbert, 135 S. Ct. 2218, 2230 

(2015) (“Government discrimination among viewpoints – or 

the regulation of speech based on the specific motivating 

ideology or the opinion or perspective of the speaker – is a 

more blatant and egregious form of content discrimination” 

than subject-matter restrictions. (quotation marks omitted));

Rosenberger, 515 U.S. at 830-31 (distinguishing between 

restricting religious subject matter and religious viewpoints). 

And for good reason: Forum doctrine’s boundary between 
7 

permissible subject-matter restrictions and impermissible 

viewpoint discrimination is a load-bearing wall in the First 

Amendment’s structure. Adopting the Archdiocese’s position 

would topple the careful balance struck by the Supreme Court 

of allowing government to manage expressive content in 

nonpublic forums, while cabining its discretion with 

administrable rules and encouraging it to keep these forums 

open to private speech. 

Further, the lack of a principled limitation of the 

Archdiocese’s rule to religious speech could have sweeping 

implications for what private expression government may be 

compelled to allow in nonpublic forums once it allows any at 

all. See Matal, 137 S. Ct. at 1763 (holding, in the context of 

commercial speech, that the Lanham Act’s prohibition on 

registering offensive or disparaging trademarks constituted 

unconstitutional viewpoint discrimination analogous to that in 

a limited public forum); Heffron v. Int’l Soc. for Krishna 

Consciousness, Inc., 452 U.S. 640, 652 (1981) (“[R]eligious 

organizations [do not] enjoy rights to communicate . . . superior 

to those of other organizations having social, political, or other 

ideological messages to proselytize.”). In neither briefing nor 

at oral argument did the Archdiocese offer a cogent explanation

of how such a rule could be restricted to religious speech. After 

all, political speech has frequently been designated as the most 

highly protected form of First Amendment expression. See, 

e.g., Pursuing America’s Greatness v. FEC, 831 F.3d 500, 508 

(D.C. Cir. 2016) (“The First Amendment ‘has its fullest and 

most urgent application to speech uttered during a campaign 

for political office.’” (quoting Ariz. Free Enter. Club’s 

Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011))). 

And, in addition to naming the “free exercise of religion” as a

fundamental right, the plain text of the First Amendment 

explicitly protects activities such as petitioning and the press. 

U.S. Const. amend. I. The Archdiocese’s approach of 
8 

collapsing subject matter and viewpoint might therefore 

reclassify the vast majority of what are now considered subjectmatter restrictions as unconstitutional viewpoint restrictions,

forcing government to choose between opening nonpublic 

forums to almost any private speech, or to none. Such a result 

is inimical to the First Amendment. See Ark. Educ. Television 

Comm’n v. Forbes, 52 U.S. 666, 680-81 (1998). 

 Of course, it is not enough to avoid viewpoint 

discrimination; a subject-matter restriction must also be 

reasonable, i.e., “consistent with the government’s legitimate 

interest in maintaining the property for its dedicated use.” 

Initiative & Referendum Inst., 685 F.3d at 1073. The Supreme 

Court recently provided further guidance on forum doctrine’s 

“reasonableness” prong in Minnesota Voters Alliance v. 

Manksy, which struck down a ban on any “political badge, 

political button, or other political insignia” in the interior of a 

polling place as unreasonable in relation to the purposes of the 

forum. 138 S. Ct. at 1883. “Although there is no requirement 

of narrow tailoring in a nonpublic forum, the State must be able 

to articulate some sensible basis for distinguishing what may 

come in from what must stay out.” Id. at 1888. The vagueness 

of the word “political,” “combined with haphazard 

interpretations the State [] provided in official guidance and 

representations to [the] Court,” led the Supreme Court to 

conclude that the ban did not survive the “forgiving” 

reasonableness test. Id. 

As the primary opinion explains, both record evidence and 

common sense show a “sensible basis” for WMATA’s 

conclusion that prohibiting religious or anti-religious advocacy 

advertisements avoids risks of vandalism, violence, passenger 

discomfort, and administrative burdens in a manner that serves 

the forum’s stated purpose of providing “safe, equitable, and 

reliable transportation services.” J.A. 204. Guideline 12 is also 
9 

readily distinguishable from the ordinance struck down in 

Mansky. WMATA’s prohibition on advertisements that 

“promote or oppose any religion, religious practice or belief,”

is narrower and more precise than simply a general ban on 

“religious” or “political” speech. See Mansky, 138 S. Ct. at 

1891. Moreover, there is no indication that WMATA has 

promulgated anything like conflicting or confusing guidance 

that, “combined with” the vague term “political,” rendered the 

Minnesota ordinance unreasonable. Id. at 1889. 

Because Guideline 12 readily meets the longstanding 

doctrinal test for permissible subject-matter restrictions in 

nonpublic forums, and because the Archdiocese’s novel 

analytical approach would both upend forum doctrine and 

undermine the First Amendment values that doctrine protects, 

I concur.