DC Circuit Court upholds Metro decision to deny Archdiocese 'Find the Perfect Gift' advertisement

- The D.C. Circuit Court has upheld a decision by WMATA, denying an advertisement from The Archdiocese of Washington because it “depicts a religious scene.”

The Archdiocese said it filed its case in federal court challenging Metro’s advertising guidelines after an ad promoting its annual “Find the Perfect Gift” initiative was rejected last fall.

RELATED: Archdiocese of Washington sues Metro after ad that ‘seeks to promote religion’ rejected

The ad in question appears to depict the Three Wise Men, with the words "Find the Perfect Gift."

The ad includes a web address and a social media hashtag that can help people find Catholic Churches, locations for Mass, and other content promoting the Catholic Church.

“In 2015, WMATA changed its advertising policy to prohibit issue-oriented advertising, including political, religious and advocacy advertising,” Metro officials said in a written statement to FOX 5. “The ad in question was declined because it is prohibited by WMATA’s current advertising guidelines.”

The D.C. Circuit court upheld WMATA's decision on Tuesday. Supreme Court Judge nominee Brett Kavanaugh was on the panel hearing the case but did not give a response in the decision.

The large point of contention was a 2015 WMATA adopted the "Guidelines Governing Commercial Advertising," which the Court says uses "broad subject-matter prohibitions in order to maintain viewpoint neutrality and avoid ad hoc bureaucratic determinations about which ads are benign and which are not."

The specific by-law, Guideline 12 states: “Advertisements that promote or oppose any religion, religious practice or belief are prohibited.”

Metro enacted the ban after a pro-Israel group wanted to post ads featuring the Islamic Prophet Muhammad.

In the Archdiocese argument, "The rejected ad conveys a simple message of hope, and an invitation to participate in the Christmas season. Yet citing its guidelines, WMATA’s legal counsel said the ad ‘depicts a religious scene and thus seeks to promote religion,’” said Ed McFadden, the secretary for communications for the Archdiocese of Washington in a written statement.

“To borrow from a favorite Christmas story, under WMATA’s guidelines, if the ads are about packages, boxes or bags… if Christmas comes from a store … then it seems WMATA approves. But if Christmas means a little bit more, WMATA plays Grinch,” he said.

In a decision in December, a federal judge denied the Archdiocese's request for an injunction that would require Metro to post the ads. The judge found that since Metro's guidelines are broader and do not target a specific religion or view, the decision was likely legal.

“We are disappointed that the federal court denied our emergency request for an injunction,” said Ed McFadden, the Secretary for Communications for the Archdiocese of Washington.

"Guideline 12 does not function to exclude religious viewpoints but rather proscribes advertisements on the entire subject matter of religion," said the Tuesday Court decision from Judge Robert Wilkins.

"The Archdiocese’s “Find the Perfect Gift” ad is not primarily or recognizably about charitable giving, as it is not primarily or recognizably about opening hours or places to visit.... 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," said Wilkins.

The Archdiocese has argued that allowing shops and items for sale for Christmas promote the commercialization of the holiday.

To which, Judge Wilkins responded, arguing Metro's stance to allow advertisements on things rather than ideas.

"Commercial advertisements are designed to sell products: As the district court observed in noting the Archdiocese’s evidentiary shortcomings for its argument that WMATA accepts advertisements that promote the commercialization of Christmas, commercial advertisements “proclaim: Shop Here! Buy This!” while saying nothing about the sellers’ viewpoints on how Christmas should be observed," he said.

This isn’t the first lawsuit WMATA has faced on the issue. In August, the American Civil Liberties Union sued, accusing WMATA’s policy of infringing on First Amendment rights.

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