An opinion upholding a Washington Metropolitan Area Transit Authority rule that prohibits all religious advertisements on its buses won’t be reheard by the entire U.S. Court of Appeals for the District of Columbia Circuit.

The Archdiocese of Washington wanted to place ads on buses that have an image of shepherds and sheep with the caption “Find the Perfect Gift.” The ad also contains a link to a webpage with a banner stating “JESUS is the perfect gift. Find the perfect gift of God’s love this Christmas.”

A D.C. Circuit three-judge panel said recently the side of a bus is a non-public forum and the rule doesn’t violate the First Amendment. WMATA may restrict advertising access as long as the restriction is reasonable and isn’t an effort to suppress expression because it opposes the speaker’s views, the panel said.

But Judge Thomas B. Griffith, joined by Judge Gregory G. Katsas, dissented from the denial of en banc review.

Griffith argued the panel opinion is contrary to U.S. Supreme Court precedent. Like other bans struck down by the Supreme Court, the transit agency’s rule bars the Archdiocese from speaking on subjects from a religious viewpoint, he said.

Walmart can advertise about its view of the perfect Christmas gift, so why can’t the Archdiocese, Griffith said.

Kirkland & Ellis LLP represents the Archdiocese. Munger, Tolles & Olson LLP represents WAMATA.

The case is Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 2018 BL 475952, D.C. Cir., No. 17-7171, rehearing en banc denied 12/21/18.