Every now and then, religion-beat readers are granted a visitation from the ghost of church-state past.
In this case, we are dealing with a Washington Times report by former GetReligionista Mark Kellner, who has spent enough time inside the D.C. Beltway to understand that mass transit is the true public square for most citizens.
Thus, spot the classic church-state ghost in this headline: “Christian group, ACLU sue Metro over rejected bus ads featuring a praying George Washington.”
Need a hint? Who were some of the major players in the broad coalition that backed the near-unanimous votes in the U.S. Congress for the Religious Freedom Restoration Act in 1993?
OK, here is Kellner’s overture:
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.
Wait a minute. The ACLU and a conservative Christian group are on the same side in a First Amendment free speech/religious liberty case?
Of course, there was a time when this kind of broad church-state coalition was common, as in the RFRA era. But, these days, it’s tempting to think that this kind of First Amendment logic can only be achieved with the help of a time machine (or a case involving a small, sympathetic religious minority group).
What happened this time?
First, Kellner needs to explain why WMATA thought these images were, you know, #triggerwarning territory. Here’s another large chunk of this story, which deserves coverage from major media, even television networks.
The ads featured 19th-century painter Henry Brueckner’s depiction of George Washington kneeling in prayer or of the signing of the U.S. Constitution 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.
“Selective censorship” is another way of stating that even conservative religious groups should have First Amendment rights. The big words — “viewpoint discrimination.”
If you are an old-school liberal and want to experience a First Amendment tingle in your spine, read the following:
“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.”
Like I said earlier, this is not Kellner’s first Beltway religious-liberty rodeo. Thus, I will end with this interesting blast of relevant background material — demonstrating why this debate will have legs in this era of SCOTUS life.
You see, some judges have been divided in some relevant WMATA cases.
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 Lackawana 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.
In other words, stay tuned. Let’s hope that other journalists follow Mark’s lead in following this important old-liberalism case.
FIRST IMAGE: Uncredited art with “CAN’T TELL A LIE ABOUT GW? HISTORY DOES” feature at HistoryNet.com