UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) ARCHDIOCESE OF WASHINGTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-2554 (ABJ) ) WASHINGTON METROPOLITAN ) AREA TRANSIT AUTHORITY, et al. , ) ) Defendants. ) ____________________________________)
MEMORADUM OPINION This case, brought by the Archdiocese of Washington, Donald Car dinal Wuerl, Roman Catholic Archbishop of Washington, involves the plaintiff’s des ire to publish an advertisement that conveys a religious message on government property: the e xterior of a public bus.

Plaintiff seeks to place the advertisement on buses operated by the Washington Metropolitan Transit Authority (“ WMATA”) as part of the Archdio cese’s “Find the Perfect Gift” Christmas campaign. As the Secretary for Pastoral Ministry and Social Concerns for the Archdiocese, Dr. Susan Timoney, e xplains in her declaration to the Court:2 The Find the Perfect Gift campai gn is an important part of the Archdiocese’s evangelization effo rts. . . . The campaign seeks to invite the public to consider the spiritual meaning of Christmas, to consi der celebrating Advent/Christmas by going to Mass at one of our par ishes and/or joining in one of our ma ny outreach programs that care f or the most vulnerable and poor during Advent and beyond. 1 WMATA has rejected these ads on the basis that they are inconsi stent with the agency’s existing advertising Guidelines, in particular, the Guideline that prohi bits “[a]dvertisements that promote or oppose any religion, relig ious practice or belief.” 2 The Archdiocese has filed a five count complaint that asks the Court to declare the Guideline to be unconstitutional, and because the advertising c ampaign is specifically tied to the liturgical season of Advent, which has already begun, it has mo ved for a temporary restraining order and preliminary injunction that would direct WMATA to imm ediately accept the advertisements. Emergency injunctive relief is an extraordinar y remedy that may only be awarded based on a substantial showing that the plaintiff is likely to succeed on the merits of the claims in its lawsuit, so the Court must determine at this early stage wh ether plaintiff is likely to be able to prove that its constitutional or s tatutory rights are being vio lated. Plaintiff cannot carry that burd en. The Court recognizes that plaintiff’s pursuit of the advertising campaign is a manifestation of its faith, but the c ase does not turn upon whether the message has value, or whether the Court anticipates that it wil l be well-received or it will offend. The dispute must be decided in accordance with Supreme Court pr ecedent and the binding decisions of the D.C. Circuit, and the applicable constitutiona l principles are quite clear.

1 Decl. of Dr. Susan Timoney, S.T.D., Ex. 2 to Compl. [Dkt. # 1-2 ] ¶¶ 4–6 (“Timoney Decl.”). 2 WMATA, Guidelines Governing Co mmercial Advertising (2015), h ttps://www.wmata. com/about/records/upload/Advert ising_Guidelines.pdf. (“WMATA Gu idelines”)3 First, it is well-established that private religious speech is as fully protected under the Free Speech Clause as secular privat e expression. And when governme nt property is fully open to the public as a place to express its views, the government may not discriminate among prospective speakers based upon the subject matter they wish to address or the viewpoint they intend to convey. But, when government property ha s not been designated or made a vailable for broad public use for communicative purposes, di fferent rules apply. Control ove r access to a nonpublic or limited forum may be based on the subjec t to be discussed as long as: the lines drawn are reasonable given the purpose of the forum involved, they do not favor one viewpo int over another, and they are consistently applied. It is also settled as a matter of law that the exterior of a bus is not a public forum open to anyone who wishes to address any topic. The Archdiocese conced ed this at the hearing on the motion. WMATA determined two years ago, after polling the comm unity, that it wi ll not accept advertisements related to such potentially divisive topics as p olitics or religion. A government agency may restrict the use of its property based on the conten t of the message to be broadcast as long as the restriction is neutral and reasonable. This is not a high threshold to overcome. Since the restriction does not silence or restrict any particular vie wpoint, and it grew out of well-founded concerns for the safety of the public and WMATA employees, as w ell as a desire to reduce vandalism and the administrative burdens involved with spending significant time reviewing proposed ads, the Guideline meets the test that it be neutral a nd reasonable. Plaintiff suggests that its unde rstated campaign, “a simple mes sage of hope, welcoming all to Christmas Mass or in joining in public service,” 3 is hardly objectionable, but divisive is in the eye of the beholder, and if WMAT A were to make distinctions bas ed on its own judgment about

3 Pl.’s Mot. for TRO & Prelim . Inj. [Dkt. # 2] (“Pl.’s Mot.”) at 10.4 which religious statements were likely to offend, it would be m aking the very sort of determination that plaintiff insists that the Constitution forbids. Thus, WM ATA’s decision comports with the law that this Court is bound to follow in interpreting the Free Speech Clause of the First Amendment. Faced with this legal landscape, plaintiff attempts to reframe the issue by arguing that WMATA is not enforcing a neutra l content-based prohibition at a ll, but that it is denying the Archdiocese the opportunity to e xpress its particular religious viewpoint about a general topic that others are freely permitted to discuss on bus property: Christ mas. Plaintiff does not point to any specific commercial advertisements that are currently appearing , but it posits t hat since WMATA would accept commercial advertising during the Christmas season , the agency has welcomed the expression of the secular “viewpoint” that the holiday should b e commercialized, and therefore, it cannot exclude the opposing viewpoint that members of the publi c should connect with the spiritual origins of Christmas instead. While it is true that a governmental organization may not open its doors to the discussion of a certain subject and then exclude the expression of the religious perspective on that subject, that is not what is happening here , and WMATA’s appr oach is, in fact, viewpoint-neutral. Plaintiff’s description of both sides of this hypothetical conv ersation is not persuasive. Commercial advertisements do not by definition express a viewpo int or perspective about the true meaning of Christmas or how it should be observed; they suggest to potential shoppers – who fall at every point along the religi ous spectrum, and who may choose to purchase gifts in December5 for a multitude of faith-based or secular reasons – where to sh op or what to buy. 4 And, the Archdiocese’s proposed advertising campaign is not commentary a bout some other permissible topic – a topic other than rel igion – from a religious perspect ive; it is plainly a statement about religion from a religious perspective. Therefore, WMATA’s decision did not violate the Archdiocese’s First Amendmen t right to freedom of speech. With respect to the Archdiocese’s claim that its religious rig hts are being violated, it is axiomatic that the government cannot favor one religion over an other without running afoul of the Establishment Clause. The govern ment cannot specifically targe t or selectively burden a practice because of its religious motivation without violating the Free Exercise Clause, and the Religious Freedom Restoration Act ensures that the federal government can not compel religious adherents to take actions that w ould violate their sincerely held religio us beliefs, even if the regulation being resisted is neutral in its intent and broadly applied. WMATA’s policy does none of thos e things. Neither the Guideli ne nor its application in this case interferes with pla intiff’s right to practice its rel igion in any way, and it does not compel the Archdiocese to take any action that burdens its sincere rel igious convictions. The Guideline does not establish any preference for or against one religion o ver another, and it is neutral and generally applicable, and theref ore, WMATA’s decision in this c ase does not violate either the Constitution or RFRA.

4 Also, the record does not contain any examples of seasonal r etail advertisements on Metrobuses, and it does not reveal what they might say or wheth er there are any that refer to Christmas. So it is difficult to determine whether they convey a viewpoint or what it might be, or to find that the predicate for plaintiff’s claimed need to pres ent a countervailing religious viewpoint has been established.6 Plaintiff acknowledges that its advertisement promotes religio n and sends a religious message, and therefore, it falls s quarely within the prohibitio n in the Guideline. 5 But plaintiff maintains that the Guideline has been discriminatorily and arbi trarily enforced, favoring other religious advertisements over t hose sponsored by the Catholic A rchdiocese, and that therefore, it is invalid on its face and as applied. But the record does not support this contention. None of the advertisements plaintiff highlights to make that point – neithe r the ads heralding the opening of another CorePower Yoga fitness studio in Clarendon, Virginia (“ Muscle + Mantra”), nor the ads soliciting contributions to the Salvation Army’s Red Kettle eff ort (“Give Hope. Change Lives”) “promote or oppose any religion.” While the Salvation Army is a Christian organization, and its charitable efforts, like those of the Archdiocese and other rel igious organizat ions, may be motivated in some measure by religious beliefs, the ads it chos e to display on the buses do not promote or advance religion. The refore, WMATA’s policy is not likely to be found to violate the First Amendment or the Equal Protection Clause on the grounds t hat it has been inconsistently applied. And plaintiff does not argue at this stage of the lit igation that the prohi bition could violate the Due Process Clause in some other way if it satisfies the Fi rst Amendment.

5 At one point, plaintiff took pains to emphasize the understa ted nature of its proposed advertisement. See Compl. ¶ 11 (stating that “the advertisements depict, in minima list style, a starry night, with silhouettes of a small group of shepherds an d sheep standing on a hill”); see also McFadden Decl. ¶ 18 (stating that the advertisements “do not convey an overt rel igious message on their face”); Pl.’s Mot. at 16 (“The Archdiocese has sought to convey a message of hope and charity for the Christmas season and it has done so with a simp le image of shepherds in the night.”). But plaintiff could no t have it both ways. The religious essen ce of the message is fundamental to plaintiff’s claims that its First Amendment rights have been vi olated and that it has suffered irreparable harm. See Compl. ¶ 35 (“arbitrary enforcement of WMATA’s policy violates the Archdiocese’s First Amendment right by prohibiting it from emph asizing the religious reasons for the season”); see also Compl. ¶ 42 (“the prohibition . . . violates the Free Exercise Clause of the First Amendment by disfavoring religious speech”); Compl. ¶ 49 (“the prohibition . . . places a substantial burden on the Archdio cese’s exercise of its religio n”).7 For all of these reasons, to be explained in more detail below , the Court finds that plaintiff is not likely to succeed on the merits of its claims, and it ha s not shown that it will be irreparably harmed by the violation of its r ights, so the motion for injunc tive relief will be denied.
BACKGROUND Defendant WMATA operates the Metrorail and Metrobus systems in the Washington, D.C. metropolitan area pursuant to an interstate compact between Mar yland, Virginia, and the District of Columbia. Compl. [Dkt. # 1] ¶ 7. To fund its operations, W MATA sells advertising space on its buses and trains. Decl. of Lynn M. Bowersox, Assistant Gen eral Manager for Customer Service, Communications, and Ma rketing at WMATA, in Supp. of De fs.’ Opp. to Mot. for TRO & Prelim. Inj. [Dkt. # 10-1] (“ Bowersox Decl.”) ¶ 3. Prior to May 2015, WMATA accepted paid advertisements that were religi ous and political in nature in a ddition to purely commercial ones. Compl. ¶ 20; Defs.’ Opp. to Mot. for TRO & Prelim. Inj. [Dkt. # 10] (“Defs.’ Opp.”) at 5. On May 28, 2015, WMATA’s Board of D irectors adopted a motion by it s Chair to temporarily suspend all issue-oriented adve rtising, including all “politica l, religious and advocacy advertising” until the end of that year while it conducted further review an d solicited public comment. See Resolution, Ex. A to Defs.’ Opp. [Dkt. # 10-3]. The complaint alleges that at the conclusion of that process, “WMATA staff recommended extending the ban becaus e of concerns that issueoriented advertising could provoke community discord, create co ncern about discriminatory statements, and generate potentia l threats to safety and securi ty from those who [sought] to oppose the advertising messages.” Compl. ¶ 22; see also Bowersox Decl. ¶ 9 (“[WMATA’s] review ultimately concluded that the economic benefits of such issue-o riented ads, including ads promoting religion, were outwei ghed by four considerations: com munity and employee opposition, security risks, vandalism, and administrative burde ns.”). On November 19, 2015,8 WMATA’s Board of Directors voted to make its prohibition on iss ue-oriented advertising permanent. Ex. B to Defs.’ Opp. [Dkt. # 10-3]; Compl. ¶ 22. The Guidelines that have been in force since that time prohibit advertisements on a number of topics. Of particular rel evance here, Guidelines 9 through 14 provide: 9. Advertisements intended to influence members of the public regarding an issue on which there are vary ing opinions are prohibited. 10. Advertisements of tobacco products are prohibited . . . . 11. Advertisements that supp ort or oppose any political party or candidate are prohibited. 12. Advertisements that promote or oppose any religion, relig ious practice or belief are prohibited. 13. Advertisements that support or oppose an industry position or industry goal without any direct commercia l benefit to the advertiser ar e prohibited. 14. Advertisements that are inte nded to influence public policy are prohibited. See WMATA Guidelines. On October 23, 2017, the Archdiocese contacted WMATA’s third-pa rty vendor about buying advertising spac e on the taillights of public buses as p art of its “Find the Perfect Gift” campaign. Compl. ¶ 16. Accordi ng to the Archdiocese, “[t]he F ind the Perfect Gift Campaign is an important part of the Archdiocese’s evangelization efforts.” Timoney Decl. ¶ 4. “The advertisements . . . encourage individuals to return to church during Advent and to give charitably in their communities.” Pl.’s Mot. for TRO & Prelim. Inj. [Dkt. # 2] (“Pl.’s Mot.”) at 6. That message is delivered through a number of platforms, “includ[ing ] advertisements and materials for distribution in parishes within the Archdiocese, advertisements for display in public places throughout the metropolitan area,” including transit shelters n ot owned by WMATA, and an “integrated online campaign.” Decl. of Edward McFadden, Ex. 1 to Compl. [Dkt. # 1-1]9 (“McFadden Decl.”) ¶¶ 3, 6. On October 23, 2017, plaintiff sub mitted the following ad to WMATA’s third-party vendor, whic h directs the public to the Fin d the Perfect Gift Campaign website and hashtag:

McFadden Decl. ¶ 7; Ex. D to McFadden Decl. When one follows the link, the landing page of the website feat ures a banner across the top of the page: “JESUS is the perfect gift. Find the perfect gif t of God’s love this Christmas.” The homepage then offers a choice of links to “FIND” (“The Perfect Gift”); “DISCOVER” (“Advent and Christmas Traditions”), and “GIVE” (“The Perfect Gift.”). See Find the Perfect Gift, https:// www.findtheperfectgift.org (la st visited Dec. 8, 2017). The “F IND” page states: God has prepared an amazing gift for you. A place of peace, joy , and community with God and others. In the frenzy of buying gifts f or others, take time to receive God’s love for you at Christmas Mass. Fin d Christmas Mass times throughout the Archdiocese of Washington using the m ap below!
Id. The “DISCOVER” page describes ways to observe Christmas and A dvent, and the “GIVE” page details many opportunities available through Catholic Char ities in the Archdiocese of Washington to “[s]hare the joy of Christmas . . . by helping ot hers.” Id. According to the plaintiff on October 24, 2017, WMATA’s third-p arty vendor informed plaintiff that its proposed ad would not meet WMATA’s Guideline s and could not run as submitted. McFadden Decl. ¶ 13; Ex. G to McFadden Decl. The A rchdiocese responded that it10 did not “see a way to adjust the ad given its purpose and messa ge” and asked wheth er there was a way to appeal the decision. Ex. G to McFadden Decl. The third -party vendor sent plaintiff’s proposed ad to WMATA for further review, and upon review of the ad, WMATA concluded that the ad violated Guideline 12 and denied plaintiff’s request on November 8, 2017. McFadden Decl. ¶ 15; Ex. G to McFadden Decl. 6 In response, plaintiff’s counsel sent a letter to the general counsel of WMATA raising First Amendmen t concerns and urging the agency to reverse its decision quickly because the season of Advent was imminent. Compl. ¶ 18 ; Ex. H to McFadden Decl. On November 20, 2017, WMATA, through its counsel, again denied the request. Ex. I to McFadden Decl. A week later, on November 28, 2017, plaintiff filed a complain t with this Court. The complaint raises five constitutional and statutory claims: 7 Count I alleges that Guideline 12, on its face and as applied, violates plaintiff’s right to freedom of e xpression under the Free Speech Clause of the First Amendment. Count II alleges that Guideline 12, on its face and as applied, violates the Free Exercise Clause of the First Amendment. Count III alleges that Guideline 12 substantially burdens plaintiff’s right to exercise its religion in violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb. Count IV alleges a violation of plaint iff’s rights under the Equal

6 A declaration submitted by WMATA in opposition to the motion stated that WMATA “reviewed the content of https ://www.findtheperfectgift.org/ as it existed at the time” the ad was submitted and “based on the ad and the website,” WMATA found th at the ad violated Guideline 12 and rejected it. Bowersox Decl. ¶¶ 19–20. 7 Plaintiff’s motion for a tempor ary restraining order and pre liminary injunction also predicates its claim for relief on the Establishment Clause, bu t there is no Establishment Clause claim in the complaint, so the Court cannot rule on its likelih ood of success. See Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must contai n . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”). I n any event, plaintiff’s Establishment Clause argument is identical to its Free Speech and Equal Prote ction claims based on the alleged inconsistent and/or discriminat ory enforcement of the Guideline

.11 Protection Clause of the Fifth Amendment, and Count V alleges a deprivation of life, liberty or property without due process in v iolation of the Due Process Cl ause. See Compl. ¶¶ 28–64. Based on these claims, plaintiff seeks the following relief:
1. A declaration that Guideline 12 “ violates the rights of the Arc hdiocese under the Free Speech Clause of the First Amendment;”
2. A declaration that Guideline 12 “ violates the rights of the Arc hdiocese under the Free Exercise Clause of the First Amendment;”
3. A declaration that Guideline 12 violates the Religious Freedom Restoration Act;
4. A declaration that Guideline 12 “ violates the rights of the Arc hdiocese under the Equal Protection principl es of the Fifth Amendment;”

5. A declaration that Guideline 12 “ violates the rights of the Arc hdiocese under the Due Process Clause of the Fifth Amendment;”
6. An “injunction preventing Defendants from enforcing” Guideline 12 “to reject the Archdiocese’s request to purchase advertising space for the ‘Find the Perfect Gift’ campaign;”
7. An “award of attorney’s fees and c osts to the Archdiocese;” and
8. “[O]ther relief as the Cour t may deem just and proper” Compl. at 16–17. At the time plaintiff filed its complaint, it also filed a moti on for a temporary restraining order and preliminary injunction asking that the Court order WM ATA to run its proposed ad “as soon as possible” since the beginning of Advent, December 3, 20 17, was only a few days away. Defendants filed their opposition to plaintiff’s motion on Dece mber 4, 2017 and plaintiff replied12 on December 5, 2017. Reply to Defs.’ Opp. [Dkt. # 12] (“Pl.’s Reply”). On December 5, 2017, the Court held a hearing on the motion. 8
STANDARD OF REVIEW A preliminary injunction is an “extraordinary and drastic remed y” that is “never awarded as [a matter] of right.” Munaf v. Geren , 553 U.S. 674, 689–90 (2008) (citations omitted). A party seeking a preliminary injunction must establish the following: 1) it is likely to succeed on the merits; 2) it is likely to suffe r irreparable harm in the absen ce of preliminary relief; 3) the balance of equities tips in its favor; and 4) an injunction serves the public interest. Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). The manner in which courts should weigh the four factors “remai ns an open question” in this Circuit. Aamer v. Obama , 742 F.3d 1023, 1043 (D.C. Cir. 2014). The Court of Appeals h as long adhered to the “sliding scale” approach, where “a strong s howing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius , 644 F.3d 388, 392 (D.C. Cir. 2011). But because the Supreme Court’s decision in Winter “seemed to treat the four factors as independent requirements,” the Court of Appeals has more recent ly “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.’” Id. at 392–93, quoting Davis v. Pension Benefit Guar. Corp. , 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring). Altho ugh the D.C. Circuit has not yet announced whether the “‘sliding scale’ approach remains valid a fter Winter ,” League of Women Voters v. Newby , 838 F.3d 1, 7 (D.C. Cir. 2016), the Court of Appeals has rule d that a failure to show a likelihood of success on the merits is sufficient to def eat a motion for a preliminary

8 The record has been supplemented with the Declaration of Rob ert O. Potts, in Support of Defendant’s Opposition [Dkt. # 13], the Declaration of Michael F. Williams [Dkt. # 14], and the Declaration of Rex S . Heinke [Dkt. # 15].13 injunction. See Ark. Dairy Co-op Ass’n, Inc. v. U.S. Dep’t of Agric. , 573 F.3d 815, 832 (D.C. Cir. 2009); Apotex, Inc. v. FDA , 449 F.3d 1249, 1253–54 (D.C. Cir. 2006). As another court in this district has observed, “ ‘[i]t is particularly important f or the movant to demonstrate a substantial likelihood of success on the merits,’ because ‘absent a substan tial indication of likely success on the merits, there would be no justification for the Court’s int rusion into the ordinary processes of administration and judicial review.’” Navistar, Inc. v. EPA , No. 11-cv-449, 2011 WL 3743732, at *3 (D.D.C. Aug. 25, 2011), quoting Hubbard v. United States , 496 F. Supp. 2d 194, 198 (D.D.C. 2007) (internal edits omitted). Regardless of whether the slidi ng scale framework applies, it r emains the law in this Circuit that a movant must demonstrate irreparable harm, which has “alw ays” been “the basis of injunctive relief in the federal courts.” Sampson v. Murray , 415 U.S. 61, 88 (1974), quoting Beacon Theatres,
Inc. v. Westover , 359 U.S. 500, 506 (1959) (internal edits omitted). A failure to show irreparable harm is grounds for the Court to refuse to issue a preliminary injunction, “even if the other three factors entering the calculus merit such relief.” Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006).
ANALYSIS
I. Count One: The Freedom of Speech Clause of the First Amendment

A. Advertising space on a WMATA Metrobus is a nonpublic or limited forum. Since the advertisement plaintiff wants to run is on a public b us, this case is governed by the case law concerning free expression on government property. It is well established that the “First Amendment does not guarantee access to property simply b ecause it is owned or controlled by the government.” U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns , 453 U.S. 114, 129 (1981). When analyzing whether restrictions of speech on gover nment property violate the First14 Amendment, courts apply the public forum doctrine. Initiative & Referendum Inst. v. U.S. Postal
Serv ., 685 F.3d 1066, 1070 (D.C. Cir. 2012). The public forum doct rine divides government property into three separate ca tegories: 1) traditional public forums, 2) designated public forums, and 3) nonpublic forums. Id. The categorical designation of the forum will determine the lev el of scrutiny courts apply to any restrictions on private speech. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 800 (1985). “Traditional public forums” are “[p]laces which by long traditi on or by government fiat have been devoted to assembly and debate

. ” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 45 (1983). Streets a nd parks are “quintessential public forums” that “have immemorially been held in trust for the use of the public, and . . . have been used for purposes of assembly, communicating thoughts between citizens, and discussi ng public questions.” Id., quoting Hague v. CIO, 310 U.S. 496, 515 (1939). “Designated public forums” come into being when, “government property that has not traditionally been rega rded as a public forum is intentionally opened up for that purpose,” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009), in other words, for the purpose of “expressive activity .” Perry Educ. Ass’n , 460 U.S. at
45. Courts apply a strict scrutiny standard when ev aluating speech restrictions imposed on the use of a traditional or designated public forum. See Pleasant Grove City, 555 U.S. at 469

– 70. Under this standard, restrictions “must be content-neutral, nar rowly tailored to serve a significant governmental interest, and allow for sufficient al ternative cha nnels of communication.” Cmty. for
Creative Non-Violence v. Turner , 893 F.2d 1387, 1390 (D.C. Cir. 1990), citing Ward v. Rock Against Racism , 491 U.S. 781, 789 (1989). When th at standard is applied, the Supreme Court “has generally struck down governmental discrimination among the ‘pr oper’ subjects for expressive15 activity.” U.S. Sw. Africa/Namibia Trade & Cu ltural Council v. United States , 708 F.2d 760, 763 (D.C. Cir. 1983). A different standard governs “nonpublic forums” which are “not by tradition or designation a forum for public communication.” Perry Educ. Ass’n, 460 U.S. at 46. As the D.C. Circuit has observed, the Supreme Court has characterized “prisons, militar y bases, and buses” as nonpublic forums. U.S. Sw. Africa/Namibia Trade & Cultural Council , 708 F.2d at 763. “In these places the government may ‘reserve the forum for its intended purposes, co mmunicative or otherwise, as long as the regulation on speech is reasonable and not an effor t to suppress expression merely because public officials oppose the speaker’s view.’” Initiative & Referendum Inst ., 685 F.3d at 1070, quoting Perry Educ. Ass’n , 460 U.S. at 46; see also U.S. Sw. Africa/N amibia Trade &
Cultural Council , 708 F.2d at 763 (courts have “sustained the use of subject ma tter restrictions provided that they are reasonabl y designed to limit expressive activities to uses compatible with the public facilities’ intended purposes and not imposed to sup press expression simply because public officials oppose the speake r’s particular point of view” ). In other words, if the forum “is not a public forum, the regu lation will be upheld as long as the restrictions are reasonable and are not directed at oppo sing the views of particular individuals.” Cmty. for Creative Non-Violence , 893 F.2d at 1390. As the Archdiocese acknowledged at the hear ing on this motion, at the time it proposed to purchase advertising space, the exterior of a Metrobus was not a public forum or a designated public forum. In determining the forum designation of a partic ular government resource, a court must evaluate the government’s intent for the forum as evidence d by its “policy and practice” and “the nature of the [government] property and its compatibility with expressive activity.” Cornelius ,16 473 U.S. at 802. Thus, the history of WMATA’s approach to adve rtising space on its buses and trains is relevant t o this conclusion. Prior to 2015, WMATA accepted a wide array of political, issue- oriented and religious ads. In light of this practice and policy, the Court of Appeals rule d in 1984 that WMATA’s advertising space was a public forum. Lebron v. Wash. Metro. Area Transit Auth. , 749 F.2d 893, 896 (D.C. Cir. 1984) (“There is no . . . question that WMATA has converte d its subway stations into public fora by accepting . . . political advertising.”). In 2015, however, WMATA changed its policy. As the declaration s and exhibits supplied in opposition to the motion for injunctive relief explain, WMAT A became increasingly concerned that issue-oriented ads were di srupting its operations and unde rmining its core mission of providing safe and reliable publ ic transportation. In May 2015 , its Board of Directors adopted a motion by its Chair to temporarily suspend all issue-oriented a dvertising, including political and religious ads, pending revi ew and public comment. See Resolution. After completing its review, the Board approved a new set of guidelines on November 19, 2015

. See Guidelines. In addition to providing guidance concerning commercial advertisements, the Guidelines impose a permanent bar on all political, religious, and issue-oriented ads. See Guidelines 9, 11, 12, 14. With respect to religion in particular, Gui deline 12 provides: “Advertiseme nts that promote or oppose any religion, religious practice or belief are prohibited.” Id . The adoption of this Guideline had the effect of transforming what was once a designated public forum into a nonpublic forum. See Cornelius, 473 U.S. at 805 (the “historic al background indicates” that WM ATA’s Guidelines were “designed to minimize the disruption” caused by the prior ad po licy and to “lessen[ ] the amount of expressive activity occurr ing on federal property”).17 This conclusion is consistent with the Supreme Court’s ruling i n Lehman v. City of Shaker Heights , 418 U.S. 298 (1974). In Lehman , petitioner challenged a polic y that prohibited political advertising on city buses on First Amendment grounds. The Cour t ruled that advertising space on a public bus was not a public forum because the city had “consciously . . . limited access to its transit system advertising space in order to minimize chances o f abuse, [and] the appearance of favoritism.” 418 U.S. at 304

. Here, were have no open spaces, no meeting hall, park, street c orner, or other public thoroughfare. Instead, the city is engaged in com merce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters . . . . The [advertising] space, although incidental to the provision of public transportation, is a part of the commercial venture. . . . [A] city transit system has discretion to develop and make reas onable choices concerning the type of advertising that may be displaye d in its vehicles.
Id. at 303. This ruling is also consistent with a recent ruling of another court in this district and one in the Southern District of New York. See Am. Freedom Def. Initiative v. WMATA , 245 F. Supp. 3d 205, 209

– 211 (D.D.C. 2017) (holding that WMATA became a nonpublic forum once it amended its Guidelines in 2015); Am. Freedom Def. Initiative v. Metro. Transp. Auth. , 109 F. Supp. 3d 626, 628 (S.D.N.Y. 2015), aff’d , 815 F.3d 105 (2d Cir. 2016) (noting tha t, while the case befo re it was moot, since the New York Metropolitan Transportation Authority “no longer accepts any political18 advertisements,” it was “likel y” no longer a “d esignated public forum,” but rat her, a nonpublic or limited public forum). 9
Plaintiff maintains in its moti on that at an “absolute minimum, WMATA’s exterior bus displays constitute a limited public forum[.]” Pl.’s Mot. at 13. But both parties agree that the same test would apply to a “limited public forum” and to a “nonpubli c forum.” Pleasant Grove City , 555 U.S. at 470 (if “a forum . . . is limited to use by certain groups or dedicated solely to the discussion of certain subjects,” then speech restrictions need only be “reasonable and viewpoint neutral”). Because the Court finds that WMATA’s advertising space is a non public or limited forum, it must go on to evaluate whether Guideline 12 is viewpoint neu tral and reasonable. Cornelius , 473 U.S. at 800.
B. Guideline 12 is viewpoint neutral. “[C] ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in li ght of the purpose served by the forum and are viewpoint neutral.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 392

– 3 (1993) , quoting Cornelius , 473 U.S. at 806. (“Although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not enco mpassed within the purpose of the forum or if he is not a member of the class of speakers for who se especial benefit the forum was

9 Plaintiff noted in its motion that the D.C. Circuit ruled i n Community for Creative NonViolence that subway stations are “public fora, either in traditional t erms or by designation.” Pl.’s Mot. at 13. It also argued, w ithout citation, that because bus es travel on public s treets, and can be seen from the streets and the sidewalks, they qualify as tradit ional public fora. Id. ; Pl.’s Reply at 2. By plaintiff’s logic, all government property that can b e seen from the street would become a public forum. But during the preliminary injunction hearing, plaintiff walked away from its position that the bus could be a public forum and agreed that t he exterior of the public bus was a “limited public forum.”19 created, the government violates the First Amendment when it de nies access to a speaker solely to suppress the point of view he espo uses on an otherwise includib le subject.”) (internal citations omitted). As the Supreme Court has explained: [I]n determining whether the State is acting to preserve the li mits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, conten t discrimination, which may be permissible if it preserves the pu rposes of that limited forum, and, on the other hand, viewpoint discrimination , which is presumed impermissible when directed against speech otherwise w ithin the forum’s limitations. Rosenberger v. Rector & Vi sitors of Univ. of Va. , 515 U.S. 819, 829–30 (1995). Plaintiff appears to recognize that the law governing anything other than a viewpoint restriction is unfavorable to its case – indeed, its memorandum does not even set out the low threshold that would apply in the case of a content-based restr iction in a limited public forum. It seeks to avoid the application of these principles by character izing WMATA’s action as a viewpoint based decision, but the v iewpoint cases are not analo gous. Plaintiff relies heavily on Rosenberger . In that case, a university maintained a fund which could be used to defray the costs of printing student publicati ons, but it denied a student organization publishing a newspape r with a Christian editorial viewpoint access to the fund . The Supreme Court condemned the action as an unconstitutional viola tion of the First Amendment, stating: [T]he University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts wit h religious editorial viewpoints. . . . The p rohibited perspective, not the general subject matter, resulted in the refusal to make third-party payments, f or the subjects discussed were otherwise with in the approved category of public ations.
515 U.S. at 831.20 But in this case, religion is excluded as a subject matter, and it was that general subject matter that led to the prohibition.
In Lamb’s Chapel , the school district involved refused to permit a church to sh ow a film on school property concerning child rearing and family values – an otherwise permitted topic – for the sole reason that the topic w ould be addressed from a religi ous perspective, and the Supreme Court found that to be unconstitutional. 508 U.S. at 394

. Similarly, in Good News Club v. Milford Central School District, 533 U.S. 98 (2001), the school district had adopted a community -use policy. The Court found that sin ce the policy opened school pr operty to events “pertaining to the welfare of the community,” and thereby made any group that “promote[s] the moral and character development of children” eligible to use the building, it could not deny meeting space for a club promoting moral character for children sponsored by a private C hristian organization. Id. at 108– 09. The Court observed that the organization intended to addre ss permissible subject matter – moral character – from a relig ious perspective, and it found th e school district’s action to be impermissible viewpoint-based discrimination. Id. at 111–12

. But here, the boundaries of the forum are much more limited. The advertisement does not seek to address a general, otherwise permissible topic from a r eligious perspective – the sole purpose of directing th e public to www.findt heperfectgift.org i s to promote religion. The website declares: “JESUS is the perfect gift. [F]ind the perfect gift of God’s lo ve this Christmas” and “[T]ake time to receive God’s love for you at Christmas Mass.” 10 Indeed, plaintiff insists on this

10 The Archdiocese agreed at oral argument that the complaint sp ecifically incorporates the religious content of the website in its allegations concerning the content of the ad. See Compl. ¶¶ 11, 19. But plaintiff also acknowledged that the images of the shepherd s and the star of Bethlehem are part of the i conography traditio nally used to depict the night that Christ was born, and that the ad, notwithstanding its simplicity, telegraphs a r eligious message even before one takes the website into consideration.21 characterization in its own memorandum. See Pl.’s Mot. at 6 (“The advertisements are part of a larger campaign to encourage individuals to return to church du ring Advent and to give charitably in their communities.”); id. at 15 (“[T]he Archdiocese’s campaign expresses the view that t he ‘perfect gift’ during the Christmas season is devotion to God a nd service to others.”); and id. at 23 (the campaign is a “uniquely effective means of transmitting [t he Archdiocese’s] message”). The Archdiocese argues nonetheless that WMATA has engaged in vi ewpoint-based discrimination when renting out advertising space. It maintain s that since WMATA is willing to accept ordinary commercial advertisements during the holiday se ason, it publishes messages that express a viewpoint promoting the commercialization of Christma s. So, the rejection of the Archdiocese’s spiritual message c oncerning Christmas is the sup pression of a religious viewpoint on the same subject matter. But this is a strained analogy. Plaintiff’s argument is founded on a mischaracterization of wha t is happening on the side of the bus. Advertisements that meet the Guideli nes’ requireme nts for commercial advertisement are just that: commercial adve rtisements. The y proclaim: Shop here! Buy this! There is nothing in the complai nt beyond plaintiff’s conclusory allegation that WMATA accepts ads that “promote” commercialism that suggests that the se ads convey a viewpoint on the question of how Christmas should be observed – whether it shoul d be more commercial, or more true to its spiritual origins instead. An ad for Macy’s does n ot communicate the Macy’s perspective on the matter; while messages from retail establishments may be a manifestation of the commercialization and consumerism that characterize our soc iety in general, and they may reflect the merchants’ aim to profit from the gift-giving activ ity, all that they convey is: if you are22 buying a gift for any reason durin g the current season, bring y our business to us. Plaintiff cannot dispute that similar advertisements “encouraging consumers to b uy more goods and services,” Compl. ¶ 24, appear all year round, and they a re not inherently inconsistent with a religious perspective or with f aith-based observance. 11 And on the other side of the supposed conversation, the Find th e Perfect Gift campaign does not offer the Archdiocese’s perspective on a subject that is addressed in commercial messages. As the representatives of the Archdiocese make abund antly clear in their declarations, what their ads were designed t o do was to promote the Roman Cat holic religion: The Find the Perfect Gift campai gn is an important part of the Archdiocese’s evangelization e fforts. Advent and Christmas are some of the biggest evangelizing moments we have all year, as people ar e more open to questions of faith and spiritu al experiences during these se asons . . . The Roman Catholic Church teaches that when we celebrate the li turgy of Advent each year, we recall the centuries and millennia when th e world

11 Another problem with plainti ff’s argument is that the compl aint does not allege, nor do the exhibits to the motion for inj unctive relief reveal, that any a ds related to shopping are actually being displayed on the exterior of a Metro bus, or if they are, what they say or convey. So it is not clear whether the purported viewpoint ads mention Christmas at all, whether they are cast in terms of the broader holiday season, or whether they concern a differ ent subject matter altogether. The problem created by the absence of such information in the recor d became quite clear at oral argument, when counsel’s ability t o articulate wha t the viewpoi nt of any ad might be depended in large part on how it was hypotheti cally worded or what it hypot hetically depicted. Thus, the record does not support the Archdiocese’ s allegation that every commer cial advertisement published in December can be presumed to communicate a viewpoint about Chris tmas, much less that it necessarily communicates one tha t is inimical to spirituality. Counsel concluded his argument at the hearing by making the poi nt that if WMATA accepts an advertisement seeking charitable donations – either “because” such donations are beneficial to the recipien t, or without any stated reason – the Archdiocese must be able to publish an ad that expressly calls for contributions “because” the Chur ch teaches that they are an expression of faith. This argument left the strong impression that the Archdiocese would argue that every commercial advertisement conveys a message about some secular topic, and therefore, WMATA’s acceptance of any commercial advertisement would requir e it to broadcast a religious reply that could be said to bear on that topic. This approach o bliterates the distinction between viewpoint-based and content-base d restrictions, and it is not c onsistent with Supreme Court First Amendment case law.23 awaited the arrival of the Messiah. By sharing in the long pre paration for the Savior’s arrival with the first Christmas, we renew our ard ent desire for Christ’s second coming . . . It is also critically import for the goals of the Find the Perf ect Gift campaign that the Archdiocese spread its message as broadly as possible within the metropolitan area. The campaign seeks to invite the public to consider the spiritual meaning of Christmas, to consider celebrating Advent/ Christmas by going to Mass at one of our parishes and/or joining in one o f our many programs that care for the most vulnerable and poor during Adve nt and beyond. Timoney Decl. ¶¶ 4–6. Since plaintiff has failed to allege facts that would show that WMATA rejected its proposed advertisement solely to suppress a point of view that plaintiff sought to esp ouse on an otherwise includible subject, see Cornelius , 473 U.S. at 806, the complaint does not allege the existence of a viewpoint based restriction, and Count I rests o n the validity of the broad prohibition against any religious advertising. Since the content-based restriction on promoting or opposing religion is neutral and reasonable, the Archdiocese is not like ly to succeed on the merits of its Free Speech claim. 12

12 The Archdiocese argued on page 1 5 of its memorandum that even i f the policy could be construed as content-based disc rimination and not viewpoint bas ed, “it would still fail to satisfy the First Amendment’s demands because such a wholesale banishme nt of religious content is contrary to our constitutional tradition.” Pl.’s Mot. at 15. At the hearing, counsel argued that the Good News Club decision stands for this proposition. While it is true that the Court announced at the start of the Good News Club opinion that it granted certiorari to resolve a conflict in the Circuits as to whether speech can be excluded from a limited public forum on the basis of the religious nature of th e speech, 533 U.S. at 105, it did not reach the question of whether such a blanket content-based proh ibition would be unlawful. Instead, it applied the principles set out in Lamb’s Chapel and Rosenberger to strike down the school district’s action as impermissible viewpoint discriminat ion. Id. at 106. In Lamb’s Chapel , the Court was presented with a s chool district rule that exclud ed religious use of the property altogether, but it did not strike it down on the basis that the prohibition of religious content was unconstitutional; it held that the rule was impermissibly appli ed to block the petitioner from expressing its view on a subject th at was otherwise permissible

. 508 U.S. at 392-4.24 C. Guideline 12 is reasonable. A restriction on private speech in a nonpublic forum is “reason able if it is consistent with the government’s legitimate interest in maintaining the propert y for its dedicated use.” Initiative & Referendum Inst. , 685 F.3d at 1073. The Supreme Court has emphasized that “[t] he Government’s decision to restr ict access to a nonpublic forum n eed only be reasonable ; it need not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S. at 808 (emphasis in original). After undertaking a review process and accepting public comment , WMATA concluded that maintaining its advertising space as an open public forum was disruptive to WMATA’s core mission of providing safe, relia ble public transportation. In its opposition to plaintiff’s motion, WMATA identifies the four reasons that motivated its decision: 1) community and employee opposition, 2) security risks, 3) vandalism, and the 4) adminis trative burdens tied to spending “substantial time” reviewing propos ed ads. Bowersox Decl. ¶¶ 9

– 13. WMATA’s survey of the public’s view on issue-oriented ads found that: 1) 98% of the p ublic was familiar with the types of ads featured on WMATA buses, tr ains, and stations; 2) 58% oppos ed issue-oriented ads, while 41% supported such ads; and 3) 46% were extremely opposed to is sue-oriented ads, compared to 20% that were extremely supportive of issue-oriented ads. Id. ¶ 14. Ultimately, WMATA concluded that these factors outweighed the “the economic benef its of [ ] issue-oriented ads.”
Id. ¶ 9. Plaintiff supplied the Court with an alternative regulation fro m another jurisdiction as an example of a policy that did not exclude religion entirely and would therefore be more reasonable. Ex. A to Pl.’s Reply. But the Court is not being asked, nor is it authorized, to make its own judgment about what would be the most effective or the most app ropriate approach to balancing all of the competing concerns. The Supreme Court has made it c lear that the inquiry is not whether25 there might be another equally r easonable or even a more reason able step to take, Cornelius , 473
U.S. at 808 , and the fact that one county enacted a different policy that does not expressly mention religion does not make WMATA’s decision unreasonable. WMATA ha d to take the area’s diverse population and the many visitors who flock to the Nation’s capi tal – often to express their strong political and religious views – i nto account. Moreover, the le vel of divisiveness and antagonism in our social discourse, and the potential for violence, has li kely increased since 2012 when King County passed its policy. Plaintiff contends that WMATA’ s reasons do not support the proh ibition of religious ads because “[r]eligious viewpoints do not carry an inherently grea ter risk of provoking community discord, creating discriminatory statements, and generating saf ety threats.” Pl.’s Mot. at 16. It also asserts, “[m]essages encouraging individuals to attend mas s or confession are not inherently more divisive than messages enc ouraging individuals to attend c oncerts or to shop.” Id. That may well be the Archdiocese’s position. But even if one puts aside the role that religious differences have played and continue to pl ay in conflicts throughout histor y and across the globe, WMATA’s experience with religious refer ences on public transit gave it a reasonable basis to come to the opposite conclusion. For example, WMATA proffered evidence tha t in 2001, when a group of Catholics purchased an ad that was critical of the Church’s pos ition on the use of condoms, it received hundreds of complaints, including one from the plainti ff. Bowersox Decl. ¶ 25. WMATA also points to controversy gene rated by advertisements promotin g Islam in subway stations in New York. Weisel Decl., Exh. L. to Def.’s Opp. By adopting Guidel ine 12, WMATA reasonably26 sought to reduce the number of complaints it received from empl oyees and customers and to also reduce the vandalism that st rong reactions could provoke. 13
The WMATA Assistant General Mana ger for Customer Service, Commu nications, and Marketing also averred that she heard from the Metro Transit Po lice Department and the U.S. Department of Homeland Security t hat running certain issue-orie nted ads could pose security risks on trains and buses. Bowersox Decl. ¶ 11. One of the factors that spurred WMATA to close its advertising forum was the submission of an ad featuring a carto on depiction of the Prophet Mohammad. Def.’s Opp. at 17. Drawing the Prophet Mohammed is highly offensive to Muslims, and WMATA was aware that the ad was drawn at a contest where tw o gunmen were killed in an attempt to prevent the event. B owersox Decl. ¶ 11; Weisel Decl ., Exh. M to Def.’s Opp. Given WMATA’s concerns about the risks posed by issue-oriented ads, including ads promoting or opposing religion, its decision was reasonable. See Am. Freedom Def. Initiative v.
WMATA , 245 F. Supp. 3d at 213 (holding that WMATA’s prohibition on i ssue-oriented ads was reasonable). The regulation is r easonably aligned with WMATA’s duty to provide safe, reliable transportation in the Nation’s capital and surrounding areas, a nd it does not violate the First Amendment. See, e.g., Lehman , 418 U.S. at 304 (“[T]he managerial decision to limit [bus advertising] space to innocuous and less controversial commerci al and service oriented advertising does not rise to the dignity of a First Amendment violation.”).

13 This conclusion is reinforced by the fact that, as plaintif f emphasized, bus advertising is “big, bold, [and] in your face every day.” McFadden Decl. ¶ 10.27 D. Guideline 12 does not invite discriminatory enforcement on its face and it is not being discriminatorily applied here. The Archdiocese did no t dispute at oral argument that its adver tisement promotes religion and is therefore covered by Guideline 12. However, it claims t hat WMATA’s use of its Guideline violates the First Amendment on its face and as applied because it is not consistently enforced. The Guideline itself is short and clear and does not include th e sort of subjective terminology that could invite arb itrary or discriminatory enfor cement. 14 The basis for plaintiff’s claim that the Guideline is flawed on its face is the same as its argument that it is discriminatory as applied: other ads that allegedly promote or oppose religion have been accepted. Plaintiff argues that the Guideline must be facially invalid if the word “religion” has given rise to varying interpretations, and it co mplains that this discriminatory enforcement violates the Free Speech Clause, the Establishment Clause and the Equal Protection Clause. The problem with this argument is that while plaintiff’ s proposed advertisement, as plaintiff candidly acknowledges , promotes religion, the other a ds do not.

14 The Court observes that this certainly cannot be said of th e King County Department of Transportation Transit Advertising Policy, Ex. A to Pl.’s Reply , which plaintiff touted as an example of a reasonable policy. While the policy supplies, in excruciating detail, the specifics of what might contravene the ban on “Sexual and/or Excretory Subje ct Matter,” id. § 6.2.3, it leaves a great deal of what might qualify as “Demeaning or Disparaging ,” id. § 6.2.8, or “Harmful or Disruptive to Transit System,” id. § 6.2.9 up to the reviewer. See id. § 6.2.8 (“[F]or purposes of determining whether an advertisement contains such material, th e County will determine whether a reasonably prudent person, knowledgeable of the County’s ride rship and using prevailing community standards, would believe that the advertisement conta ins material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stat ure of any individual, group of individuals or entity.”) and id. § 6.2.9 (“[T]he County will determine whether a reasonably prud ent person, knowledgeable of the County’s ridership and using preva iling community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or inte rference with the transportati on system.”). While this purports to be an objective, reasonable man standard, the invocation of the county ridership’s point of view and community standards leaves considerably more room for arbit rary application than the word “religion.”28 Plaintiff directs the Court to two advertisements that were acc epted for the exterior of Metro buses: one for the Salvation Army Red Kettle campaign and one for CorePower Yoga. Plaintiff argues that the Salvation Army is a religious organiz ation, and that yoga is a religious practice or has religious origins, Pl.’s Mot. at 17

– 18, so WMATA was bound to accept the Archdiocese’s ad as well. 15 But the inquiry is whether the advertisements promote religion. The Salvation Army advertisement seeks charitable c ontributions and nothing more. Ex. E to Bowersox Decl.

The Red Kettle may be a well-known symbol of the season, but th ere is nothing re ligious about it. The ad does not promote or oppose any religion or religious pra ctice; while the Salvation Army has a religious origin and affiliation, what the ad is promotin g is the act of giving and the practical effect on the recipient. While c haritable giving is a fundamen tal tenet of many faiths, the advertisement does not advance or reject any religious imperati ve or spiritual inspiration for the activity it is seeking to encourage.

15 Plaintiff and the amici also argued that advertisements for performances of “The Book of Mormon” fell within the prohibition since the musical disparage s, or at least, pokes fun at, a religion. Amicus Brief, Ethics and Pub. Policy Ctr. and First Liberty Inst. in Supp. of Pl. [Dkt. # 11] at 6. Putting aside the fact that this is a somewhat cursory summary of the show, the fact that there will be satire presented onstage does not trans form a poster publicizing the existence of the performance or the availability of tickets into a commun ication that itself promotes or opposes a religion.29 CorePower Yoga is a chain selling memberships to “yoga fitness studios” that offer “unique” hybrid workouts called “yoga-based fitness classes.” See https://www.corepoweryoga. com/. The ad announcing the opening of a new location does not promote any religion or religious practice or belief. 16

Exhibit F to Bowersox Decl.

16 The choice of the slogan “Mantra + Muscle” does not change that assessment just because the word mantra can mean a religious incantation.30 Plaintiff urged the Court to l ook beyond the surface of the bus es and to review the websites of each organization because the links appear in the ads, and b ecause the content of the Archdiocese’s Find the Perfect G ift website has come into play in considering this motion. 17 But neither link is as intrinsic to the message of the ad as it is in plaintiff’s proposed ad, where the link
is the message. And, in any event, the website for the National Capital Area Command identified on the Salvation Army’s signs, http://salvationa rmynca.org/, is focused on fundraising and service. Beyond the mission statement that it takes several clicks to re ach, there is little content that is more overtly religious than the ad, an d therefore, even after access ing the website, it does not appear to the Court that the Salvation Army ad falls within the Guideline. 18 Similarly, a review of the CorePower Yoga website reveals that no matter what the religious origins of yoga may have been, or to what extent Hind uism, Buddhism, or any other spiritual elements remain incorporated in yoga practice in the United States, religion is not what is being offered at CorePower Yoga. The website is filled with references to “our version of yoga”

17 It is important to note that the Find the Perfect Gift link does not connect to the general website for the Archdiocese of Washington, www.adv.org, but rat her, it leads to a separate website created specifically for the Advent campaign that was to be adv anced by the proposed advertisements. Thus, it is not analogous to the Salvation Army ’s general website, which is not what is being advertised in the Red Kettle ads. Moreover, plaintiff’s complaint and memorandum specifically ref er to and incorporate the content of the website and emphasize the message it conveys to support the argument that the rejection of the ad suppresses a religious viewpoint, and that immediate injunctive relief is warranted. See also Pl.’s Mot. at 6 (“The advertisements are part of a larger campa ign to encourage individuals to return to church during Advent and to give chari tably in their communities.”); see also Compl. ¶ 10 (“The goal of the campaign is to encourage individu als to seek spiritual gifts during this Christmas season.”); id. ¶ 11 (“All of the advertisemen ts refer to an Internet site, FindThePerfectGift.org, which cont ains links to Mass schedules, opportunities for charitable service, information about relig ious holiday traditions, and re flections on the meaning of the Advent and Christmas seasons.”); and id. ¶ 26 (“The Find the Perfect Gift campaign has a purpose and meaning that is tied intrinsically to the liturgical season of Advent.”). So it is hardly unfair to take the content of the plainti ff’s website into consideration since that is the ve ry content plaintiff seeks to disseminate.31 and “our unique style of yoga,” and it touts the potential phys ical benefits of its intensive cardiovascular workout “based on” yoga and set to energizing mu sic. See https://www.corepoweryoga.com. 19 It is about as distant from the ancient Indian religious traditions that gave rise to yoga as Black Friday at Best Buy i s from Bethlehem.

18 The homepage has a banner displaying various donation and s ervice opportunities, and it presents large links for “Volunt eer,” “Get Help,” and “Events,” as well as smaller links to “About,” “Ways to Give,” “Ways We Help,” “Volunteer,” etc. The Salvatio n Army, http://www.salvationarmynca.org (last visited Dec. 8, 2017). T he “About” page emphasizes service: “The Salvation Army National Capital Area Command ser ves anyone in crisis in the District, Suburban Maryland, and Northern Virginia. Whether it ’s a hot meal, help paying a bill or a more long-term solution, every county in the region includ es either a Salvation Army Corps or field office ready to help.” Id. From the “About” page, there are several links to “Learn More,” including one to “Ou r Mission and Vision.” Id. The mission is plainly re ligious, while the vision is more ecumenical: Our Mission The Salvation Army, an internatio nal movement, is an evangelica l part of the Universal Christian Church. Its message is based on the Bi ble. Its ministry is motivated by the love of God. Its mission is to pr each the gospel of Jesus Christ and to meet human needs in His name without discrimination. Our Vision To have a Greater Washington, DC area be a place where people o f all ages live in safe and sustainable communities in which differences a re respected, and people are empowered to lear n, work, and worship in freedom

. Id. Plaintiff's reply points out that counsel for the Archdiocese w as able, after clicking from the home page to the “Find Us” page and then to the “Alexandria Cor ps” page, see Williams Decl. in Support of Pl.’s Mot. [Dkt . 12-1] ¶ 6, to land upon a page on t he Salvation Army site that sets out the dates and locations for Spiritual Care and Worship in addit ion to describing the local corps’s work in the community with homeless women. See http://salvationarmynca.org/alexandria-va/. But that does not make the ad on the bus – which is a call for donations and not an exhortation to visit the website or to join t he Salvation Army – an ad promoti ng religion.
19 The CorePower homepage superimposes the words “CorePower Yoga – Live Your Power” over a video of a studio full of well-chiseled men and women pu mping hand-held weights while assuming traditional yoga positions and stances. Choosing “The Experience” from the menu of choices available on the homepage brings up a page that announc es, “Discover Your Most Powerful Inner Self: Inside our yoga fitness studios, something amazing is happening. With this high intensity workout, you’ll push past physical boundaries wi th an open mind and a beating heart, turning doubt into securi ty, strangers into friends, and stress into sweat.” In addition to32 Based on the record before it, th en, the Court finds that plain tiff is not likely to succeed on its claim that its constitutional rights were violated by the i nconsistent application of Guideline
12. 20

incorporating weights, the cla sses at CorePower’s “yoga fitness studio” can further diverge from traditional yoga practice when they are “set to an energizing p laylist” or “incredible music.” As the website informs those who “a lready love yoga,” “[w]e’ve held onto the magic of yoga, while upping the intensity factor for a more powerful, purposeful wor kout. Take your yoga practice up a notch with a renewed sense of focus and strength.” To those w ho are new to yoga, CorePower explains that “[w]e believe in working every muscle and every e motion.” In the Frequently Asked Question section, CorePower asks, “what are some of the benefit s of yoga?” Answer: “There are countless benefits to our style of yoga. You’ll turn stress int o sweat, rigid into fluid, and our community can turn strangers int o friends. Plus, you’ll increas e circulation, fl exibility and strength, while enhanc ing sleep quality. A regular yoga practic e . . . has been shown to improve the symptoms of many chronic diseases . . .” You have to look quite hard to f ind any reference on the websit e to anything even arguably spiritual – CorePower’s answer to “What does ‘Yoga’ mean?” is: “Yoga can be traced back to ancient India more than 5,000 years ago. Yoga is a Sanskrit wor d meaning to join, or yoke; a union. Conceptually, yoga is the practice of fully uniting the body, m ind and spirit.” The fact that plaintiff was able to put its finger on one of these lonely references to one’s spirit or soul is not enough to make an ad announcing the openi ng of a new studio an ad that pr omotes religion. 20 In its reply brief, plainti ff pointed to a third ad, suppos edly purchased from WMATA by a Christian radio station, WGTS 91.9. See Declaration of Michael F. Williams, Dkt. # 12

– 1 ¶ 3 (“Attached as Exhibit B is a true and correct copy of a photograph of a WMATA public bu s on a public thoroughfare displaying a dvertising for WGTS 91.1, a Chr ist-centered, nonprofit, listenersupported media ministry serving the Washington, DC region, acc essed over the Internet on December 4, 2017 at http://columbiaunion.org/content/wgts-919s- history-timeline.”)

Ex. B to Pl.’s Reply [Dkt. # 12

– 3]. But while the Declaration states the date that counsel dis covered the photograph on the i nternet, neither the Declaration nor the link provides any information about where or when the pictu re was taken. And the bus did not appear to be a red and grey Metr obus. Defendant subsequently s ubmitted a declaration from WMATA’s Assistant General Manage r of Bus Services stating that, “The bus in the picture [provided by plaintiff] is not a [WMATA] Metrobus. The number o n the bus, “5359,” is not a Metrobus number. The color scheme is not a Metrobus color schem e.”) Decl. of Robert O. Potts, in Support of Def.’s Opp. [Dkt. # 13] ¶ 2.33 II. Count Two: First Amendment Free Exercise of Religion The First Amendment to the Constitution includes the prohibitio n that, “Congress shall make no law . . . prohibiting the free exercise” of religion. U .S. Const. amend. I. The Supreme Court has made clear that this constitutional right “does not r elieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscr ibes).” Emp’t Div., Dep’t of Human
Res. v. Smith , 494 U.S. 872, 879 (1990), quoting United States v. Lee , 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring) . So according to the principles set out in Smith, a neutral and generally applicable law will survive a challenge under the Free Exercise clause. When assessing whether a law is neutral and generally ap plicable, the two inquiries te nd to overlap and “failure to satisfy one requirement is a likely indication that the other has not b een satisfied.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 531–32, 546 (1993). A court is required to

See id. Thereafter, the Court received another Declaration from Michae l Williams, revealing that he had transmitted to counsel for WMATA a link to a different w ebsite from May of 2016 in which the writer congratulated WGTS fo r its “successful ad campaign i n Washington, D.C.” Decl. of Michael F. Williams [Dkt. # 14]. But the bus depicted on that webpage is also blue. http://www.billscottgroup.com/ 2016/05/17/radio-station-bus-camp agins/. Counsel for WMATA, to his cred it, endeavored to research wheth er WMATA had ever run the ad and informed the court in a declaration that “as bes t as WMATA has been able to determine given the tight time frame, the WGTS ad was carried o n WMATA’s buses in April 2017.” Decl. of Rex Heinke [Dkt. # 15] ¶ 8. (The webpage is fr om a year earlier.) While this constitutes some evidence that W MATA may have accepted an adver tisement from a religious oriented radio station after the policy was in place, the evide nce is quite thin and somewhat contradictory, and since the advertisement itself provides no h int that it is coming from a religious source, the Court is not persuaded that this additional potenti al fact tips the balance and undermines any of the rulings set forth in this opinion.34 apply the strict scrutiny test only when a law is either not ne utral or not generally applicable. Id. at 531–32, 546.
A. Guideline 12 is neutral. “[I]f the object of a law is to infringe upon or restrict pract ices because of their religious motivation, the law is not neutral.” Lukumi Babalu , 508 U.S. at 533. Here the Guideline is not directed at any religious pract ice; it prohibits WMATA from pub lishing advertisements that promote or oppose religion. Even if one were to characterize G uideline 12 as a policy that “restricts” the “religious practice” of evangelization, because it makes buses unavailable for that purpose, there is no showing that WMATA closed off an avenue fo r that practice “because of” any religious motivation animating the ads. The policy relates to the ads’ content, and it imposed an identical prohibition on advertis ements that oppose religion, w hich are not likely to have a religious aim. And the Guideline is part of a larger set of re strictions on contr oversial topics; it does not single out religion. Cf. Lukumi Babalu , 508 U.S. at 545–46 (concluding that the city ordinance prohibiting ritual anim al sacrifice targ eted the Sant eria religion). Plaintiff complains that WMATA’s advertising space is a “unique public benefit” that is being withheld from the Archdioc ese on account of its religion, Pl.’s Reply at 6, and it points to Trinity Lutheran Church of Columbia, Inc. v. Comer , 137 S. Ct. 2012, 2019 (2017), which prohibits the denial of a “gene rally available benefit solely o n account of religio[n].” See Pl.’s Reply at 6. But its use of this authority is misplaced, not on ly because WMATA’s advertising35 space is not a “generally available benefit,” but also because there is no evidence of discriminatory intent. 21
B. Guideline 12 is ge nerally applicable. To be generally applicable, a regulation “cannot in a selective manner impose burdens only on conduct motivated by religious belief.” Lukumi Babalu, 508 U.S. at 543 . For the same reasons that the Court found the policy to be neutral, it finds that it is generally applicable. Guideline 12 applies across the board to adve rtisements that touch on the su bject matter of religion from any perspective or motivation, and Guideline 12 is just one of seve ral content-based restrictions placed on the nonpublic forum. Plaintiff’s alleged examples of incons istent and arbitrary enforcement are unpersuasive for the reasons discussed under Count I. And so, the Court finds that Guideline 12 is generally applicable.
C. Guideline 12 does not bur den religious practice. There is also a lack of evidence that the Guidelines actually r estrict or substantially burden a religious belief or practice. “[T]he First Amendment is impl icated when a law or regulation imposes a substantial, as opposed to inconsequential, burden on the litigant’s religious practice,” and accordingly, “this threshold showing must be made” to susta in a Free Exercise claim. Levitan v. Ashcroft , 281 F.3d 1313, 1320 (D.C. Cir. 2002). Plaintiff has not sati sfied this. The Archdiocese is free to spread its message throughout the Washington, D.C. metropolitan area , and its

21 The Court also rejects plaintiff’s contention that because the Guidelines implicate “both free speech and free exercise, it is a ‘hybrid’ restriction sub ject to heightened scrutiny” under Employment Div., Dep’t of Human Res. of Or. v. Smith , 494 U.S. at 882. Pl.’ s Mot at 20–21. For this argument to prevail, plaintiff would need viable claims on both the Free Speech and Free Exercise counts which it does not have. Henderson v. Kennedy , 253 F.3d 12, 19 (D.C. Cir. 2001) (“[T]he combination of two untenable claims” does not add up to a tenable one because “in law as in mathematics zero plus zero equals zero.”). Accordingly, hei ghtened scrutiny is not applicable here.36 declaration reveals that it already utilized a number of private and public platforms, “includ[ing] advertisements and materials for distribution in parishes withi n the Archdiocese, advertisements for display in public places throughout the metropolitan area,” including transit shelters not owned by WMATA, and an “integrated on line campaign.” McFadden Decl. ¶¶ 3, 6. Because Guideline 12 is neutral and generally applicable and be cause plaintiff has not established that the Guidelines impose a substantial burden, th e Court finds that plaintiff is unlikely to succeed on its Fre e Exercise count.
III. Count Three: Religious Freedom Restoration Act “Congress enacted RFRA in 1993 in order to provide very broad p rotection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc ., 134 S. Ct. 2751, 2760 (2014). 22 To this end, RFRA provides that the government “shall not substantially burden a person’s exercise of religion” unless it can demonstrate that application of the burden to the person : “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrict ive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)–(b) . The prohibition applies even if the burden results from a rule of general applicability. Id . § 2000bb-1(a). “As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (R LUIPA), RFRA covers ‘any

22 Congress responded to the Supreme Court’s ruling in Smith that the Free Exercise clause did not constitutionally protect religious practices against bu rdens from neutral, generally applicable laws, by enacting RFRA which offered broader protect ions. Hobby Lobby , 134 S. Ct. at 2761 (“‘Laws that are “neutra l” toward religion,’ Congress f ound, ‘may burden religious exercise as surely as laws inte nded to interfere with religious exercise.’”), quoting 42 U.S.C. § 2000bb(a)(2) (internal edits omitted).37 exercise of religion, whether or not compelled by, or central t o, a system of religious belief.’” Hobby Lobby , 134 S. Ct. at 2754, quoting 42 U.S .C. § 2000cc–5(7)(A). The federal government and the District of Columbia are bound b y RFRA. See
id. § 2000bb–2(1); Potter v. Dist. of Columbia , 558 F.3d 542, 546 (D.C. Cir. 2009). However, because WMATA is an inter-state agency formed by the District o f Columbia, Maryland, and Virginia, defendants argue that RFRA does not apply to WMATA ba sed on the decision in City of
Boerne v. Flores , 521 U.S. 507 (1997). Defs.’ Opp. at 26–27. In that case, the Supreme Court ruled that the application of RFRA to the states exceeded Congr ess’s enforcement power under the Fourteenth Amendment, and so RFRA could not constitutionall y be applied to the states.
Flores , 521 U.S. at 536. Therefore, defendants argue, RFRA cannot be a pplied to WMATA because it would “intrude upon Maryland’s and Virginia’s tradit ional state prerogatives over transportation.” Defs.’ Opp. at 27. In Morris v. Wash. Metro. Area Transit Auth ., the D.C. Circuit ruled that Maryland’s and Virginia’s sovereign immunity was con ferred upon WMATA, but that was in the context of a suit for damages, and the Court has not yet ruled on whether the precedent would apply to a case involving injunctive relief. 781 F.2d 21 8, 219 (D.C. Cir. 1986). But the Court does not need to resolve this complicated issue because i t finds for other reasons that the Archdiocese is not likely to succeed on its RFRA claim. To successfully mount a RFRA challenge and subject government a ction to strict scrutiny, a plaintiff must meet the initial hurdle of establishing that t he government has substantially burdened his religious exercise. Henderson v. Stanton , 76 F. Supp. 2d 10, 14 (D.D.C. 1999). Only if that predicate has been established will the onus then shift to the government to show that the law or regulation is the least restrictive means to further a c ompelling interest.
42 U.S.C. §§ 2000bb-1(b), 2000bb-2(3); Hobby Lobby , 134 S. Ct. at 2761. “A substantial burden38 exists when government action puts ‘substantial 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); see also Holt v. Hobbs , 135 S. Ct. 853, 862 (2015) 23 (finding such a burden where a prisoner was forced to choose b etween shaving his beard and thereby engaging in conduct th at seriously violated his rel igious beliefs or facing serious disciplinary action); Hobby Lobby , 134 S. Ct. at 2775 (2014) (concluding a substantial burden existed where employers were required, under threat of severe e conomic penalties, to provide insurance coverage for contracep tive methods that violated thei r religious beliefs). Thus, RFRA decisions turn on an element of compulsion, and here plaintiff is under no pressure to do anything. The fact that plaintiff has a sincere belief in spreading the gospel is not in dispute, but the existence of that belief, and even the sinc ere desire to act in accordance with it, is not enough to sustain a claim. “[T]o make religious motivat ion the critical focus is to read out of RFRA the condition that only substantial burdens on the exer cise of religion trigger the compelling interest requirement.” Mahoney v. Doe , 642 F.3d 1112, 1121 (D.C. Cir. 2011), quoting
Henderson , 253 F.3d at 17 (internal edits omitted). Plaintiff does not cite to any binding Supreme Court or Circuit precedent that would call for the invalidation of a law when plaintiffs are not compelled, under the threat of eith er punishment or the denial of a benefit, to act. There is authority that points in the other direction, though. The D.C. Circuit has held that when a restriction merely prohibits one of a multitude of metho ds of spreading the gospel, and it does not “force[ ] [parties] to engage in conduct that their re ligion forbids” or prevent “them from engaging in conduct their religion requires,” those parties are not “substantially burdened.”

23 Holt was brought under the Religious Land Use a nd Institutionalized Persons Act of 2000 (“RLUIPA”), see 42 U.S.C. § 2000cc et seq ., but RLIUIPA is governed by the same standard set forth in RFRA, and plaintiff cite s to this case in support of i ts RFRA claim. See Pl.’s Mot. at 23.39 Henderson , 253 F.3d at 16; see also Mahoney , 642 F.3d at 1122 . In Henderson and Mahoney , the plaintiffs challenged regulations that prevented individuals fr om selling t-shirts on the National Mall and regulations that prohibi ted “chalking” the sidewalk in a particular location in front of the White House. See Henderson , 253 F.3d at 13–14; Mahoney , 642 F.3d at 1115. Both sets of plaintiffs argued that these regulations violated RFRA because they prevented plaintiffs from following the religious requirement that they spread the gospel

. See Mahoney , 642 F.3d at 1120;
Henderson , 253 F.3d at 15. The Court ruled that neither regulation impo sed a substantial burden because the regulations were, at most, “a restriction on one of a multitude of means” by which plaintiffs could proselytize, and ot her alternative means were still available. Henderson , 253 F.3d at 17; see also Mahoney , 642 F.3d at 1121–22. The Court specifically noted that neithe r case posed a situation where “the regulation force[d the plaintiffs] to en gage in conduct that their religion forbid[]” or prevented “them from engaging in conduct their rel igion require[d].” Henderson , 253 F.3d at 16; see also Mahoney , 642 F.3d at 1121. As in Henderson and Mahoney , the Archdiocese is not s ubstantially burdened by WMATA’s policy because it does not compel the Archdiocese to ac t in a way that violates its religion, nor does it prevent it from spreading the gospel thro ugh other means. Because plaintiff has not established that WMATA’s Guidelines substantially burdened its religious exercise, the Court finds that it is unli kely to succeed on this count.

IV. Count Four: Equal Protection Plaintiff’s Equal Protection clai m is unlikely to succeed for t he same reasons that its inconsistent and discriminatory enforcement claim fails under C ount I. Plaintiff alleges that WMATA treated “similarly situated religious groups” differently in violation of E qual Protection principles by rejecting the Archdiocese’s ad but accepting ads from the Salvation Army and40 CorePower Yoga. Compl. ¶ 54; Pl.’s Mot. at 12, 18, 20. As dis cussed in Count I of the Court’s analysis, the ads by the Salvation Army and CorePower Yoga do n ot promote or oppose any religion, religious practice or b elief. By contrast, plaintiff has made it abundantly clear in its briefs and in oral argument that its ad seeks to “bring the Catholic f aith to more believers” by buying ads on government property. Pl.’s Mot. at 23. Therefore, it is no t “similarly situated,” and the Court concludes that plaintiff is unlikely to succeed on its Equal Pr otection count.
V. Count Five: Due Process Plaintiff’s complaint alleges th at WMATA’s Guideline 12 “depriv es the Archdiocese of liberty and property without due process.” Compl. ¶ 56. Neith er the complaint nor the memorandum identifies a liberty o r property interest that has b een compromised other than the First Amendment rights plaintiff seeks to vindicate in Count I and Count II. At the hearing, plaintiff agreed that for the purpose of the preliminary injunc tion motion, the due process should be viewed as alleging just a deprivation of those rights. Sinc e the Court finds that the plaintiff is unlikely to prevail on Count I and I I, it is also unlikely to p revail on the Due Process count.
VI. Irreparable Harm Plaintiff argues in its motion t hat it will suffer irreparable harm if the Court does not issue the requested injunctive relief. Pl.’s Mot. at 25. Plaintiff’s showing on this point is its assertion that the loss of First Amendment freedoms constitutes irreparab le injury. Id . Since plaintiff alleges no other harm that it seeks to av ert, its irreparable harm argu ment rises and falls with its merits arguments. Since the Court has concluded that plaintiff’s cons titutional and statutory rights have not been violated, plaintiff has failed to demonstrate that it would suffer irreparable harm in the absence of relief. Under those circumstances, it is not necess ary for the Court to go on to the41 question of whether WMATA would be harmed by the proposed injun ction or where the public interest lies.
CONCLUSION Based on the information submitted by the parties, their repre sentations made at the hearing on December 5, 2017, and for the reasons set forth above, an or der will issue denying the motion for preliminary injunction.

AMY BERMAN JACKSON United States District Judge DATE: December 8, 2017