The Supreme Court on Monday rejected an appeal from the Archdiocese of Washington in a case that would determine whether or not the Roman Catholic Church would be allowed to place religious ads on public transportation.
The case, which arose in 2017 after the archdiocese tried to place banner ads on the outside of public buses, was appealed several times after lower courts consistently sided with the Washington Metropolitan Area Transit Authority. The proposed ads were Christmas-themed, depicting silhouettes of three shepherds and sheep with the caption, “Find the Perfect Gift,” in reference to Jesus Christ.
The Washington, D.C., appeals court decided in 2018 that the ads were “avowedly religious” and in violation of the Metro’s ban on issue-oriented ads. This ban was instated in 2015 amid fears that ads encouraging safety would disparage Islam and Muslims.
“Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices,” Judge Judith Rogers wrote in the court’s opinion.
Rogers added that WMATA’s practice of allowing Christmas-themed ads from corporations did not conflict with its decision to prohibit church-sponsored Christmas ads.
“Ads promoting Christmastime sales are not expressing a view on Christmas any more than a McDonald’s ad expresses a view on the desirability of eating beef that demands the acceptance of a contrary ad from an animal rights group, or than a Smithsonian Air and Space Museum ad for a special stargazing event expresses a view on the provenance of the cosmos that demands a spiritual response,” she said.
The archdiocese appealed to the Supreme Court on the grounds that the 2015 ban violated the First Amendment and was unconstitutional.
Justice Brett Kavanaugh, who was serving on the appeals court before the case was decided, took part in hearing the opinions, but did not participate in delivering the ruling because of his nomination to the Supreme Court. Kavanaugh did not participate in the Supreme Court’s consideration of taking up the case, because he had to recuse himself from its discussion.
In his opinion on why the court would not consider the case, Justice Neil Gorsuch wrote that it was a “poor candidate” because the full court would not be able to hear the case. But, had Kavanaugh been in a position to participate, he wrote, “our intervention and a reversal would be warranted.”
Gorsuch wrote he believes WMATA’s admission in previous cases that it considers there to be a difference between “secular” and “religious” Christmas ads is an example of “viewpoint discrimination by a governmental entity and a violation of the First Amendment.”
“Once the government declares Christmas open for commentary, it can hardly turn around and mute religious speech on a subject that so naturally invites it,” he wrote.
