Appeals Court: Ban On Religious Ads Is Unconstitutional Because It’s Pretty Much Impossible To Define ‘Religion’

Things become heated and tangled when it comes to free speech, religion, and the government's attempt to control either of these things. Government entities tend to feel the best way to avoid the appearance of favoring any religion is to stay out of it completely.

A wise move by the government, but not the best move when it comes to free speech. The Hillsborough (FL) Area Regional Transit Authority (HART) has a policy that prohibits the placing of ads on its vehicles and property that primarily promote a religious faith or religious organization." The policy sounds pretty normal until you take a closer look at it.

That's what the Eleventh Circuit Appeals Court has done, affirming the lower court's ruling that this policy violated the plaintiff's (Young Israel of Tampa) First Amendment rights. The advertisement Young Israel sought to place on HART property informed riders of the organization's annual Chanukah on Ice" event. It looked like this:

HART rejected the proposed ad outright. Young Israel appealed the decision, leading to a HART's general counsel stating the ad might be ok once the menorah was removed, calling it a religious-based icon." Young Israel refused, stating the menorah was essential to the ad and the Jewish faith. HART responded by citing its policy again. Young Israel sued.

The lower court granted Young Israel a permanent injunction against the enforcement of this policy, stating that it was unconstitutional. The Eleventh Circuit [PDF] affirms this decision, for the most part.

In its appeal, HART asks us to overturn the district court's summary judgment order and hold that its policy prohibiting advertisements that primarily promote a religious faith or religious organization is a permissible content (i.e., subject-matter) regulation of a nonpublic forum, and does not constitute improper viewpoint discrimination. We decline to answer this question of first impression-which has generated a small circuit split-because we affirm the district court's alternative ruling that HART's policy, even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards.

It's that last sentence that makes this decision extremely interesting, especially since there are likely dozens, if not hundreds, of government entities in the Eleventh Circuit that have similarly worded policies.

The biggest problem with this policy is that it doesn't clearly define religion," which means advertisers can't possibly know what is or isn't permitted. Making things worse, HART itself doesn't even know what is or isn't permitted under this policy.

Significantly, HART acknowledges that there is no specific training or written guidance to interpret its . . . policy." Laurie Gage, an employee of HART's advertising contractor, testified that, outside of HART's written policy itself, there are no guidance documents, advisory opinions, or other materials available to help her implement or interpret the policy.

[...]

HART concedes that its policy allows different people in the same roles [to] have different methodologies." Although HART says that it is not part of [its] practice" to review organizational websites to determine if an advertisement is primarily religious, Ms. Gage testified that she might review a religious organization's website to determine if an advertisement is primarily religious depending on [w]hat was going on with [her] day." She explained that the application of the policy varies based on her understanding of the symbolism in an advertisement as religious. For instance, an advertisement featuring an image of Jesus Christ would result in her asking the organization whether it wanted to pursue" the matter further, because she knows that Jesus Christ is associated with religion." But if she didn't know that," then [she] probably wouldn't have a conversation, and [she] would just submit [the matter] to HART."

In other words, religion is in the eye of whatever beholder is currently handling HART's advertisement requests. If that person is only familiar with some religions, they might approve religious ads (in violation of policy) simply because they're not familiar with the subject matter.

That's a problem, says the Eleventh Circuit. And it's a problem that doesn't have a solution other than forbidding government entities from refusing to run ads government employees view as religion-based. The application of this policy by HART has been anything but sound and reasonable.

The concern about inconsistent application of the policy is not conjectural. As the district court explained, HART rejected an advertisement from St. Joseph's Hospital based on information that the Hospital was [f]ounded as a mission by the Franciscan Sisters of Allegany," but said it would accept the advertisement if the Hospital used the name of its parent company, Baycare. Yet HART ran advertisements from St. Leo University-the oldest Catholic institution of higher education in Florida (established in 1889 by the Order of Saint Benedict of Florida)-without any changes because St. Leo is an institution of higher learning, not a religious organization." By that logic, why wasn't St. Joseph's Hospital considered a medical institution rather than a religious organization?

HART's erratic application of its policy mirrors the problems identified by the Supreme Court in Mansky, 138 S. Ct. at 1891, and demonstrates that it is not capable of reasoned application. HART's reference to some undefined abstract guidance that might have been (but was not) provided is insufficient to establish reasonableness.

The concurrence digs even deeper into this. Judge Newsom says the problem isn't just the ban on religious advertisements, the problem is the term religion" is impossible to define with enough clarity to allow the government to regulate it without violating the Constitution.

The majority opinion says that the word religious" has a range of meanings." 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]." 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.'" 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.'" 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 non-believers.

Relatedly, what truly distinguishes religious" speech from speech pertaining to other life-ordering perspectives? Where does the religious" leave off and, say, the philosophical pick up? Is Randian Objectivism religious"? See Albert Ellis, Is Objectivism a Religion? (1968). My gut says no, but why? How about Social Justice Fundamentalism"? See Tim Urban, What's Our Problem?: A Self-Help Book for Societies (2023). Same instinct, same caveat. Scientology? TM? Humanism? Transhumanism? You get the picture.

Given this, it would seem impossible to enforce policies restricting religious-based" ads in any public area. If the term can't be clearly defined, it subjects protected expression to subjective interpretations by government employees, which means any decision reached cannot be considered reasonable" under the Constitution. So far, only HART is directly affected by this decision. But given what's been handed down here, I would expect more constitutional challenges of state and local policies in the near future.