Paul Clement, left, and Michael Williams, right.

As the U.S. Supreme Court considered a monumental case about whether a baker can be forced to make a cake for a gay wedding Tuesday, another battle over religious freedom brewed in a federal district court down the street.

U.S. District Judge Amy Berman Jackson of the District of Columbia seemed unconvinced in a hearing that the Washington, D.C., transit system violated the Archdiocese of Washington’s First Amendment rights by refusing to run Christmas-themed ads on city buses. The Archdiocese sued the Washington Metropolitan Area Transit Authority, known locally as Metro or WMATA, last month, alleging the system illegally declined to run its “Find the Perfect Gift” ad. The ad is part of a campaign to encourage individuals to return to church during the Christian Advent season and give charitably.

WMATA argues its policy of declining all ads that “promote or oppose any religion, religious practice or belief” is legal because it was enacted in 2015 to stymie a flow of complaints over other controversial ads, which stressed its resources and caused security issues.

Kirkland & Ellis partner Michael Williams told Jackson during the hearing that WMATA’s ban on religious speech in ads was not reasonable, and therefore violates the First Amendment. Paul Clement, the former solicitor general, is also on the case, though he did not appear in court Tuesday. 

In addition, Williams argued WMATA’s system for deciding what counts as religious speech is arbitrary since some other ads were allowed to reference religion. While other ads that encourage shopping during the Christmas season are allowed, the Archdiocese’s ad was rejected solely because it offers a religious view of the holiday, Williams said.

But Jackson said Williams was trying to “mesh” two arguments together, because he argued that the ad in question was covered by religious First Amendment protections, and that Metro could not deny the ad under existing policy because it did so arbitrarily since it allows ads that speak to the “secular meaning” of Christmas, like shopping and presents.

“I certainly felt that they were trying to have it both ways,” Jackson told Akin Gump Strauss Hauer & Feld’s Rex Heinke, who represents the transit system, when he took the stand after Williams.

When Williams appeared again before the judge for his rebuttal, they sparred over the difference between ads for the Salvation Army, with Metro has allowed, and the Archdiocese’s. Williams said the ads were not different because the Salvation Army is also a Christian organization that promotes service attendance and other activities, and that its ad also encourages people to give money.

Jackson said the stated purpose of the Archdiocese’s ads is that people should be charitable because of religious reasons, but the Salvation Army ads do not indicate why money should be given.

“There is no ‘because,’” Jackson said. “That’s the point.”

Jackson said she would try to issue a ruling soon. The Archdiocese hopes to get a win before the end of the Advent season, though Williams said the case will continue even without a preliminary injunction because there may be other seasons when the church may want to advertise.