# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 26, 2018 Decided July 31, 2018

No. 17-7171

A RCHDIOCESE OF W ASHINGTON

, D ONALD C ARDINAL W UERL

, A R OMAN C ATHOLIC A RCHBISHOP OF W ASHINGTON

, A

CORPORATION SOLE

, A PPELLANT

v.

W ASHINGTON M ETROPOLITAN A REA T RANSIT A UTHORITY

AND P AUL J. W IEDEFELD

, IN HIS OFFICIAL CAPACITY AS
G ENERAL M ANAGER OF THE W ASHINGTON M ETROPOLITAN
A REA T RANSIT A UTHORITY

, A PPELLEES

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, e t 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: R OGERS , K AVANAUGH  and W ILKINS

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge R OGERS

.

Concurring opinion filed by Circuit Judge W ILKINS

.

R OGERS

, 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 service s, 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 opinio n.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 int erests, and its employees, resulting in regional and federa l concerns about the safety and security of its transportation services, vandalism of its prope rty,
and a time-intensive administra tive 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 o r other meeting place for discus sion,” 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, m ay restrict it s advertising “[a]ccess . . . as long as the res trictions 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 transportati on service, WMATA adopted Guidelines Governing Commercial Advertising , employing broad subject-matter prohibi tions 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 practi ce or belief are prohibited.”

The Archdiocese of Washington contends that Guideline 12 violates the First Amendment and the Religious Freedom Restoration Act (“RFRA”) and se eks a mandatory preliminary4

injunction that would require WMATA to place an avowedly religious ad on the ex teriors of its buses . The Archdiocese ha s not shown, however, that WMATA is impermissibly suppressing its viewpoint on an o therwise 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 subjec t matter from its advertising space. Notably, there is no principled limit to the

Archdiocese’s conflation of s ubject-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 ad s 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 (D ec. 1, 2017) (“Bower sox 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 graphic5

images of animal cruelty, to a ds opposing discrimination based

on sexual orientation. The c ondoms ad, for example, “generated hundreds of angry phone calls and letters and generated the second-largest ne gative 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 referre d to events following “a conte st 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 t he building wher e the contest .

. . was being held.” Id. Additionally, a su rvey showed that “98% of the public was familiar with the types of ads found onbuses, 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 narro w 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 prohi biting “[a]dvertisements that promote or oppose any religion, re ligious practice or belief.”6

The Board concluded that any economic benefit derived from

issue-oriented advertisi ng was outweighed by four considerations: (1) complaints from its employees, community opposition and outcry, and adverse publicity for WMATA; (2) security concerns from the Metr o Transit Police Department and the United States Department of Homeland Security; (3) vandalism of WMATA property; a nd (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 o n 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 t o ‘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 Co mmns., Archdiocese of Wash., serving Cardinal Donald Woerl, ¶ 3 (Nov. 27, 2017) (“McFadden Decl.”). Dr. Timone y advises: “It is critically important for the goals of the . . . campaign that the7

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 wi th the first Christmas, we renew our ardent desire for Christ’s second coming.” Timoney Decl. ¶ 5.

When the Archdiocese sought t o 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 de picts a religious scene and thus seeks to promote religion.” McFadden Decl. ¶¶ 7, 12, 16 (internal quotations omitt ed). 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 declarat ion that Guideline 12 was

unconstitutional under the First and Fifth Amendments and violated RFRA, and an injunction preventing WMATA from enforcing Guideline 12 to rejec t 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 suc ceed 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 exer cise 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 injunc tion factors did not weigh in8

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 app eal, “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 inte nd[s] to ask to run this exact a d 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 f our factors, taken together, warrant relie f: 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 Archdioces e 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 wi th 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 t he forum at issue. The Supreme Court recently reaffirmed its “ ‘forum-based’ approach for assessing restrictions that th e government seeks to place on th e 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 recogn ized that “[e]ven protected speech is not equally permissible in all places and at all time s” and that the government is not “require[d] . . . freely to gran t access to all who wish to exercise their right to free speech o n every type of [g]overnment pr operty without regard to the nature of the property or to th e disruption that might be cause d by the speaker’s activities.” Cornelius , 473 U.S. at 799–800.10

Under the forum doctrine, the Supreme Court acknowledges that “[t]he existen ce of a right of access to publ ic property and the standard by which limitations upon such right must be evaluated differ depend ing on the character of the property at issue.” Perry Educ. Ass’n , 460 U.S. at 44. The Court identified three categorie s 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 ope n 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 und er 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 prope rly 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] ha ve to address that [contrary] argument anymore.” 2017 Motion Hg. Tr. at 4–5. The Archdiocese further stipulated t hat 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 i n the district court waived fo r 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 i nto a non-public forum because “the government retains the cho ice” 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, this12

court concluded that by accepting political advertising WMATA had designated its subw ay 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 polit ical 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 plainl y 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 “tradi tional 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 jeopa rdizing advertising revenues and “lurking doubts about favori tism, and sticky administrative problems [that] might arise in parceling out limited space,” th e Court concluded “the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising doe s not rise to the dignity of a

First Amendment violation.” Id. at 304 (plural ity opinion); see also id . at 305–06 (Douglas, J., concurring). A contrary13

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 tra nsit 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 for um 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 provi ded a non-speech-suppressive rationale for regulation. City buses, by contrast, enjoy no historical tradition like parks and sidewalks because transit w as a private enterprise in most American cities until the second half of the twentieth century. See George M. Smerk, Urban14

Mass Transportation: From Private to Public to Privatization

, 26 T RANSPORTATION J. 83, 83–84 (1986); Jay Young, Infrastructure: Mass Transit in 19th- and 20th-Century Urban

America , O XFORD R ESEARCH E NCYCLOPEDIA OF A MERICAN

H ISTORY

, 5 & n. 30 (Mar. 2015) (citing D AVID E. N YE

, E LECTRIFYING A MERICA : S OCIAL M EANINGS OF A N EW
T ECHNOLOGY

, 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 F irst 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-publ ic 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 gove rnmental intent does not render it unprotective of speec h. Rather, it reflects the reality that, with the exception of traditional public fora, the government retains the choice of whether to15

designate its property as a fo rum 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 gove rnment’s ability to manage potentially sensitive non-public forums while cabining its discretion to censor messages it finds more or less objectionable. This constraint i s especially important in the context of religious speec h, 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, bur eaucrats are not called upon to

decide whether the ad critici zing 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,” orotherwise 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 presc ribe what shall be orthodox in politic s, 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 ex clude 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 t hat 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 principl ed reason for excepting religion from the general proposition that governments may exclude subjects in their non-public f orums. Although religious speech might be an exception either because it is highly valuable or because it receives specific prote ction in the First Amendment, the same can be said of politic al 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 religi on could ever be constitutional in any non-public forum, Guide line 12 is unconstitutional because, like the restrictions challenged in Rosenberger

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

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

School , 533 U.S. 98 (2001), it suppr esses the Archdiocese’s religious viewpoint on subjects th at are otherwise includable i n the forum. But far from being an abrogation of the distinction between permissible subject matter rules and impermissible17

viewpoint discrimination, each of these cases represents an application of the Supreme Cour t’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 t o exclude religious viewpoints on otherwise includable topics. An examination of each case

demonstrates the contrast betw een 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 Ac tivities Fund (“SA F”)]” was “to support a broad range of extracurr icular student activities tha t ‘are related to the educational purpose of the University,’” because “the University[] ‘recogni[zed] that the availability o f a wide range of opportunities’ for its students ‘tends to enhan ce the University environment.’” Rosenberger , 515 U.S. at 824 (quoting Appendix to Pet. for Cert. 26, 61a). Its Guidelines “recognize[d] 11 categories of s tudent 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, infor mation, 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 of18

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 effo rts with religious editorial viewpoint s.”

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 perm ission 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 orien ted 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] Distri ct 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 tha t 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 Sc hool “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 enterta inment 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 inte rim 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 indistinguish able 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 childre n,” 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 ha d been opened to a wide range of subjects without excluding religion and disallowing a relig ious viewpoint to be expressed

in those forums was unconstitutional. To the extent those case s can be read to blur the line between religion-as-subject-matter20

and a religious viewpoint, th e Supreme Court’s analysis emphasizes the breadth of the forums involved: the “broad range” of activities in ser vice 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 th e express boundaries and narrow ch aracter 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 distur b this understa nding of the tri o of Supreme Court cases. Although the Archdiocese maintains

that Rosenberger does not permit the government to ban religion as a subject matter, A ppellant’s Br. 22–23, and that t he circuit cases “interpret[] Rosenberger in just this way[,]” “reject[ing] arguments materia lly 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 or der to determine whether a challenged regulation discrimina tes on the basis of viewpoint, and are an application of tha t analysis, rather than an affirmation of the principle tha t religion as a subject may nev er be banned in a non-public forum.21

Of the cases the Archdiocese c ites, only the Second Circuit has directly addressed whether Rosenberger permits the exclusion of religion as a s ubject matter from a non-public

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

concerned a forum much broad er 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, respe ct, or inspiration.” Id. at 57. The Second Circuit held that the State had engaged in viewpoint discrimination because it “distinguish[ed] between those w ho 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 for um that has otherwise been broadly opened to expression on a wide variety of subjects can neatly be classified as purely a ‘subject matter’ restriction f or 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 displa y 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 r eligious 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 sc hool 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 si mply 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 viewpoi nt 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, o n which WMATA allows secular but not religious messages. These contentions are unpersuasive because the subjects on23

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 s peak under Guideline 12.

The Archdiocese’s “Find the Perfect Gift” ad is not primarily or recognizably about c haritable 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 th e desirability of charitable givi ng, 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 e xhorted giving to charity but contained only non-reli gious imagery. WMATA acknowledged in the district c ourt, 2017 Mot. Hg. Tr. at 64, and again in this court that it would not reject as running afo ul of Guideline 12 an ad from the Archdiocese that read “[P]lease [G]ive to Catholic Char ities,” 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 imperm issibly excludes a religious viewpoint on Christmas while per mitting a secular one. The Supreme Court, however, has reje cted the view that accepting commercial advertising “create[s] a forum for the

dissemination of information a nd expression of ideas” and “sanction[s] . . . [a] preference for . . . commercialism.”24

Lehman , 418 U.S. at 310, 315 (Brenn an, 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. C ommercial 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 di stinction between viewpointbased and subject-based regulation on which the forum doctrine rests, and the longsta nding 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 wh ether “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 a pproach. 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 i n order to avoid workplace disruptions; so too WMATA’s decision in 2015 to abandon a former approach to its advertising space that interfered with i ts ability to provide safe and reli able 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 inconsiste ntly 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 inconsistent26

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 c onsistently rejecting ads that have religious content rather t han 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 i t cannot be fairly administered. On the contrary, WMATA has

articulated a “sensible basis fo r 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 reasonabl e 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 FirstAmendment challenges to subject matter exclusions in a nonpublic forum, the Archdiocese cannot mean discrimination as in demarcation of a subject matte r. Any regulation must name its subject, and such naming is not the kind of textual hook fr om27

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 t he 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 i ts 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 Nati on’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 re quires independently viabl e 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 r eligion 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 asse ssment of governmental neutralit y include ‘the historical bac kground of the decision under challenge, the specific series of events leading to the enactme nt or official policy in question, and the legislative or administrative history, includi ng 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 ofDirectors 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 its29

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 evide nt 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 religi ous 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 tar get religious speakers for exclusion from a generall y 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 organizati ons that installed playground surfaces made from recycled tires , but it had an express policy of denying grants to churches and other religious entities. T hat is, the state “pursued its preferred policy to the point of expressly denying a qualified re ligious 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, religio us speakers are not excluded because they are religious speakers. That alone is sufficient t o 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 s peakers because of religious speech to suggest that exclusion of religion as a subject matte r is necessarily discrimination against religious speakers. If t hat 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 relig ion 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, “ substantial31

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 f ormat” for its evangelization campaign because it “offers high visibility with consistent dai ly 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 effort s: in newspapers, through socia l 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[] their32

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 appl ies

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 unclea r 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 Wate r 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 federa l

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 the33

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 tha t 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 interes t — 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 sugge st 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, ‘fo r even minimal periods of time, unquestionably constitutes34

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 t he irreparable injury analysis to “examine only whether [the constitutional] violation, if true, inflicts irremediable injur y,” 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 theoretic al,” and “imminen[t],” and als o “beyond remediation,” id. at 297 (citation omitted). Conversely, the deprivation of c onstitutional rights constitute s 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 ha rm to WMATA if it runs the Archdiocese’s “Find the Perfect Gift” ad, and that WMATA

will benefit because it will hav e gained advertising revenues. WMATA takes the opposite posi tion, having concluded that the additional revenue from accepting such ads is outweighed by the impact on employee morale, community opposition, security concerns, vandalism, a nd 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 a dvertising revenue, the calculu s would be different weighing WMATA’s costs against the Archdiocese’s suffering a c onstitutional violation.35

Similarly, although the Archdiocese contends that the final factor weighs in its favor because the public interest favors t he protection of constitutional rights, the strength of the Archdiocese’s showing on public i nterest 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 base d

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

W ILKINS

, 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 respons ibility belongs to the people, whose superior ability and authority in the marketplace of idea s 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 belie fs deserving of expression, consid eration, and adherence.”).

Yet the Constitution accommodates those limited circumstances in which government must be permitted some control over expressive conten t 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 to o great where officials have unbrid led 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 Suprem e 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 f orum’s purposes and, as with restrictions on unprotected speec h, 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 f rom one union to potential members while allowing communications from another was not viewpoint discrimination be cause 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 rest riction 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 political3

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 al l. But because government favoritism in public debate is so pernicious to liberty and democratic decisionmaking, otherwise permissible subject-ma tter 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 ca tegory – the governme nt 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 discuss ing 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 regulat e 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 restri ctions. Further, by requiring4

government to set prospective, categorical, subject-matter rule s 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 fata l to self-censorship.”); id. at 756-57 (collecting cases and explaining that “[a]t the root of this long line of precedent i s the time-tested knowledge that i n the area of fre e expression a licensing statute placing unbridle d discretion in the hands of a government official or agency . . . m ay result in censorship”).

Guideline 12 fits comfortably within this longstanding doctrinal framework. WMATA p rohibits “[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, belie f, 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.”). I t does not take sides; it restricts all speech on the topic equal ly, without discriminating with in 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 t hat 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 entire5

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 ma tter. Stated otherwise, those decisions involved rules that p ermitted 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 s tandpoint.”). 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, administrato rs cannot further discriminate again st a disfavored view that fall s 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 “subject6

matter” and, therefore, any di stinction 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 commona lity 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 particul ar 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 be tween permissible subject-matter restrictions and impermissibl e 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 base d 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 ma tter and religious viewpoints). And for good reason: Forum doctrine’s boundary between7

permissible subject-matter re strictions 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 cabin ing 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 L anham Act’s prohibition on registering offensive or disparaging trademarks constituted unconstitutional viewpoint discrim ination 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 right s to communicate . . . superi or to those of other organizations h aving social, political, or ot her ideological messages to proselytize.”). In neither briefing no r at oral argument did the Archdio cese offer a cogent explanation of how such a rule could be restricted to religious speech. Af ter all, politicalspeech 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 pres s. U.S. Const. amend. I. The Archdiocese’s approach of8

collapsing subject matter and viewpoint might therefore reclassify the vast majority of what are now considered subject

matter 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 r elation to the purposes of th e forum. 138 S. Ct. at 1883. “Although there is no requirement of narrow tailoring in a nonpublic forum, the State must be abl e to articulate some sensible basi s 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 [] pr ovided 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 advocac y advertisements avoids risks of vandalism, violence, passenger discomfort, and administrative bu rdens in a manner that serves the forum’s stated purpose of providing “safe, equitable, and reliable transportation services.” J.A. 204. Guideline 12 is also9

readily distinguishable from th e 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 conf licting 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 va lues that doctrine protects,

I concur.