DOJ Weighs in on Case About Religious Ads on Buses

By Melissa Heelan Stanzione

The Department of Justice weighed in on a free speech case involving religious ads on Washington buses Jan. 16.

It filed a friend-of-court brief on behalf of the Archdiocese of Washington with the U.S. Court of Appeals for the D.C. Circuit, becoming the sixth party to weigh in on behalf of the archdiocese.

The archdiocese is challenging the Washington regional public transportation authority’s policy allowing ads for secular holiday activities but not religious ones.

The DOJ announced the brief’s filing in a Religious Freedom Day proclamation Jan. 16. It also said it would file a brief later in the week with the Supreme Court of Montana in support of parents claiming that Montana unconstitutionally discriminated against their children by barring them from a private school scholarship program because they attend a religious school.

The department has taken it upon itself to intervene in several free speech cases. In September, it announced it would take an active role in defending free speech and filed a statement of interest in a case alleging a college’s free speech zone policy violates the First Amendment’s free speech and free exercise of religion clauses.

It issued a statement of interest in another campus free speech case in October.

DOJ’s Argument

Here, Washington’s transportation authority engaged in unconstitutional viewpoint discrimination when it didn’t allow the archdiocese to place a religious-themed ad in city buses, the DOJ’s brief says.

If “Amazon or Macy’s had wanted to run an advertisement with the exact same text and graphics,” there’s “no question” that the transportation authority “would have readily accepted the advertisement,” the Archdiocese says.

The court ruled in December that Washington’s regional public transportation authority can continue to enforce the policy while the case is pending.

Paul D. Clement of Kirkland & Ellis LLP represents the archdiocese.

Donald B. Verrilli Jr. of Munger, Tolles & Olson LLP, as well as Akin Gump Strauss Hauer & Feld LLP, and Washington Metropolitan Area Transit Authority represent the transportation authority.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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