Menorahs One, Sacred Sheep Zero: The Eleventh Circuit rules that a ban on religious advertising in public transit is unconstitutional

by Chris Gilbert, Thompson & Horton LLP

In Young Israel of Tampa, Inc. v. Hillsborough Area Regional Transit Authority, 89 F.4th 1337 (11th Cir. 2024), the Eleventh Circuit was asked to consider whether a ban on advertisements that “primarily promote a religious faith or religious organization” in mass transit advertising violates the First Amendment.  An Orthodox Jewish synagogue wished to post an advertisement featuring both a menorah and what looks like a dancing dreidel in the Tampa, Florida metro system for a “Chanukah on Ice” program, but the transit authority rejected it under its prohibition on religious advertisements.  Both the trial court and the court of appeals found that the decision violated the First Amendment, although for slightly different reasons.

So why did I find this case interesting?  Well, partially because in 2018, the D.C. Circuit was faced with the exact same case, and ruled that a prohibition on religious advertisements in the District of Columbia metro system was not unconstitutional viewpoint discrimination, but instead appropriate subject matter (or content-based) restrictions.  In Archdiocese of Washington v. Washington Metro Area Transit Auth., 897 F.3d 314 (D.C. Cir. 2018) (“WMATA”), the D.C. Circuit ruled that the D.C. Metro could permissibly reject a holiday advertisement from the Catholic Church that featured the silhouette of three shepherds and sheep, along with the slogan “Find the Perfect Gift” and a church website address.  The Supreme Court declined to hear that case, but in a blistering dissent, Justice Gorsuch noted that “[n]o one disputes that, if Macy’s had sought to place the same advertisement with its own website address, the Washington Metropolitan Area Transit Authority (WMATA) would have accepted the business gladly.”

This means that there is a clear split between the D.C. Circuit and the Eleventh Circuit, so the Supreme Court will hear the Young Israel appeal, right?  Well, maybe. The majority opinion in Young Israel noted but dodged the difficult question of whether a restriction on religious speech is content based (probably OK) or viewpoint based (probably not), and instead invalidated the restrictions on the more narrow grounds that the policy “even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards”, relying on the Supreme Court’s decision in Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876, (2018).  I’m not sure why the “majority” opinion avoided the broader question of content versus viewpoint, since on a three-judge panel, two concurring judges wrote separately to say that they believed that the policy was viewpoint discrimination.  See id. at 1352 (“Second, and separately, HART’s policy is self-evidently – in fact, bunglingly – viewpoint-discriminatory.”) (Newsom, J. concurring); id. at 1360 (“HART’s policy constitutes unconstitutional viewpoint discrimination, and there is no change in the way its policy is administered and applied that can fix this fundamental constitutional flaw.”) (Grimberg, J. concurring).  But since Young Israel and WMATA were decided on slightly different legal grounds, the Supreme Court may not see Young Israel as the best case to pick to resolve this issue.

But what makes this case fascinating was that it began to tackle the meatier issue of how to define “religion.”  The majority found that the policy lacked “objective and workable standards” largely because it did not define what “religion” is.  The majority stopped there, but Judge Newsom, writing in concurrence, took the plunge:

“This is an easy case. Lurking just beneath the surface, though, is an almost unfathomable mystery that underlies—but if taken seriously, would seem to undermine—existing First Amendment doctrine as applied to regulations of ‘religious’ speech: What, exactly, is religion?”

He then rejected most of the “normal” criteria that courts have traditionally used as guidelines for determining what makes up a religion:

“The majority opinion says that the word “religious” has a “range of meanings.” Maj. Op. at 1347–48. That’s true, but colossally understated. Closer to the mark, I think, is the majority opinion’s recognition that the term “religious” is “inherent[ly] ambigu[ous].” Id. at 1348. Pretty much any criterion one can imagine will exclude faith or thought systems that most have traditionally regarded as religious.  Consider, for instance, one definition of “religious” that the majority opinion posits: “ ‘[h]aving or showing belief in and reverence for God or a deity.’ ” Id. at 1348 (quoting The American Heritage Dictionary of the English Language 1474 (4th ed. 2006)). That, as I understand things, would eliminate many Buddhists and Jains, among others. Or another: “‘[b]elief in and reverence for a supernatural power or powers as creator and governor of the universe.’ ” Id. at 1348 (quoting the same source’s definition of “religion”). Again, I could be wrong, but I think many Deists and Unitarian Universalists would resist that explanation. And so it goes with other defining characteristics one might propose. Belief in the afterlife? I’m pretty sure that would knock out some Taoists, and presumably others, as well. Existence of a sacred text? My research suggests that at least in Japan, Shintoism has no official scripture. Existence of an organized “church” with a hierarchical structure? Neither Hindus nor many indigenous sects have one. Adherence to ritual? Quakers don’t. Existence of sacraments or creeds? Many evangelical Christians resist them. A focus on evangelization or proselytizing? So far as I understand, Jews typically don’t actively seek to convert nonbelievers.”

Judge Newson then concluded that “I’m doubtful that policymakers can define ‘religious’ speech in a sufficiently principled and comprehensive way to satisfy Mansky.”  While ultimately none of the opinions in Young Israel give us a definition of “religion,” it will be interesting to see whether, if the Supreme Court decides to take the case, any of the new generation of Supreme Court justices decides to give it a shot.