Christian group, ACLU sue Metro over rejected bus ads featuring a praying George Washington

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A Texas-based Christian education group has filed a free-speech lawsuit backed by the ACLU over the Washington Metropolitan Area Transit Authority‘s rejection of the group’s ads that feature images of a praying George Washington.

WMATA earlier this year rejected the ads from WallBuilders, an Aledo, Texas, organization founded by evangelical author David Barton to communicate “the moral, religious, and constitutional foundation” of the United States. 

The ads would have been displayed on Metro buses.

Wallbuilders was joined in the suit by the American Civil Liberties Union and its D.C. chapter, the First Liberty Institute and the law firm of Steptoe LLP.

The ads featured 19th-century painter Henry Brueckner’s depiction of George Washington kneeling in prayer along with text inviting viewers to “Find out about the faith of our Founders” by visiting the Wallbuilders website.

WMATA, in rejecting the campaign, said the messages were “intended to influence members of the public regarding an issue on which there are varying public opinions” and were ones “that promote or oppose any religion, religious practice or belief.”

The lawsuit contends the guidelines under which the ads were rejected violate the First Amendment, which prohibits government agencies from exercising viewpoint discrimination against private speech or inconsistently applying advertising guidelines. 

Attorneys contend that WMATA has accepted ads promoting term limits for the Supreme Court, as well as ones promoting “The Book of Mormon” musical, a play that lampoons The Church of Jesus Christ of Latter-day Saints.

“The case against WMATA is a critical reminder of what’s at stake when government entities exercise selective censorship. The First Amendment doesn’t play favorites; it ensures that all voices, regardless of their message, have the right to be heard,” said Arthur Spitzer, senior counsel at the ACLU-D.C.

He said his organization “defends these suits, regardless of whether it agrees with the underlying message because it believes in the speaker’s right to express it. The government cannot arbitrarily decide which voices to silence in public forums.”

WMATA did not immediately respond to a request for comment.

WMATA has faced such religious advertising-related lawsuits before — and won, Mr. Spitzer conceded. 

In 2017, the Archdiocese of Washington sued the transportation agency over the rejection of the church’s “Find the Perfect Gift” ads, which invited the public to consider Christmas’ spiritual meaning, consider attending a Mass for the holiday, or donate to a Catholic charity serving the poor. U.S. District Judge Amy Berman Jackson upheld WMATA’s rejection of the advertising.

Two years later, however, a three-judge panel of the Third Circuit Court of Appeals in Philadelphia ruled in favor of a lawsuit filed by the Northeastern Pennsylvania Freethought Society against the County of Lackawanna Transit System over the agency’s refusal to permit advertising for the atheist group on buses. 

In that 2-1 ruling, the majority said Judge Jackson’s ruling “put the cart before the horse because the type of forum sheds no light on  whether a policy or decision discriminates against a certain viewpoint.”

Mr. Spitzer said the Supreme Court might eventually consider the WallBuilders case on its merits, while Jeremy Dys, senior counsel at First Liberty Institute in Plano, Texas, said the split between the two judicial circuits could enhance the prospect that the high court would consider the issue.

Mr. Dys told The Washington Times that WMATA’s claim that the ads might be controversial isn’t reason enough to bar the posters.

“I don’t know of any message that can be out there on which the public would not have varying opinions,” he said in a telephone interview. “For [WMATA] to reject an advertising message because it’s religious or even that it has an issue on which there are varying opinions is just a blatant act of discrimination.”