The Catholic Archdiocese of Washington failed to secure an injunction against WMATA.

The order of the United States Court of Appeals for the District of Columbia Circuit did not resolve the ultimate merits. 

Appellant’s motion for an injunction pending appeal centers on an as-applied claim of unconstitutional viewpoint discrimination. Specifically, Appellant contends that the Washington Metropolitan Area Transit Authority’s (“WMATA”) policy governing the placement of advertisements on its buses permits advertisements discussing and promoting secular holiday activities, but disallows advertisements promoting religious activities during the holiday season or a religious perspective on celebration of the holiday season.

Appellant has failed to establish a substantial likelihood of success because, at least at this early pre-discovery procedural stage, Appellant’s argument of discriminatory treatment is grounded in pure hypothesis. Appellant has not come forward with a single example of a retail, commercial, or other non-religious advertisement on a WMATA bus that expresses the view that the holiday season should be celebrated in a secular or non-religious manner. Appellant references a CorePower Yoga advertisement, but that advertisement contains no discernible holiday, seasonal, religious, or irreligious content. Appellant also points to a WMATA-permitted Salvation Army advertisement encouraging donations to its seasonal Red Kettle campaign so that funds can be used to help the less fortunate. That advertisement underscores, however, that WMATA does not exclude religious speakers from advertising when their proposed messages comport with the allowed categories of speech. Neither does anything in that advertisement suggest that WMATA is discriminating against a religious perspective on worthwhile eleemosynary activities; in fact, it indicates the opposite.