Two justices said the lower-court decision was wrong. But because Justice Brett M. Kavanaugh was recused after earlier work on the case, “it makes a poor candidate for our review,” wrote Justice Neil M. Gorsuch, who was joined by Justice Clarence Thomas.
Nonetheless, Gorsuch wrote, “the First Amendment requires governments to protect religious viewpoints, not single them out for silencing.”
The Washington Metropolitan Area Transit Authority was sued by the Archdiocese of Washington for rejecting a proposed advertisement around Christmas 2017. The planned “Find the Perfect Gift” ads featured a biblical Christmas scene and a link to a website that encouraged people to attend Mass or donate to a Catholic charitable group.
A circuit panel of judges sided with Metro in 2018. The archdiocese’s “claim of discriminatory treatment is based on hypothesis,” wrote Judge Judith W. Rogers. “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.”
Rogers was joined by Judge Robert L. Wilkins, who wrote in a separate concurrence that the policy was reasonable and within the bounds of the First Amendment because it “does not take sides” when it comes to religion.
The third judge on the panel was Kavanaugh. At oral argument in the case, Kavanaugh referred to Metro’s ban as “pure discrimination.” But he was nominated to the high court before the decision was reached, and he had to recuse himself from discussion of the case at the Supreme Court.
Metro, in a statement, said the transit agency was pleased the justices “decided not to review the well-reasoned decision of the D.C. Circuit upholding WMATA’s advertising guidelines,” referring to the lower court ruling.
“The D.C. Circuit said that WMATA’s guidelines did not violate the U.S. Constitution, and found that the Archdiocese’s claims were contrary to Supreme Court precedent and would undermine the First Amendment values that precedent protects,” Metro said.
Paula Gwynn Grant, a spokeswoman for the archdiocese, said that while the full court’s inability to hear the case may have impacted the decision Monday, it was “heartening” to have two justices state that WMATA’s rejection of the advertisement was “viewpoint discrimination by a governmental entity and a violation of the First Amendment.”
“We will continue to be a voice on the importance of religious freedom and expression,” Grant said in a statement.
For decades, Metro allowed a range of advertisements, including political satire and criticism of the Catholic Church. But in 2015, the agency banned issue-oriented messages as well as any related to religion or politics because of security concerns over anti-Muslim-themed ads.
The policy limits ads to commercial products and services, which bring in more than $20 million for the agency that relies on funding from the District, Maryland, Virginia and the federal government.
Under Metro’s policy, “advertisements that promote or oppose any religion, religious practice or belief are prohibited.”
The full D.C. Circuit declined to review the panel’s decision. Two of the 10 judges reviewing the Catholic Church’s request said they would have taken another look at the case and said the panel ruling was at odds with Supreme Court precedent.
“The government in this case violated the First Amendment by prohibiting religious speakers from expressing religious viewpoints on topics that others were permitted to discuss,” Judge Thomas B. Griffith wrote in a dissent joined by Judge Gregory G. Katsas.
Gorsuch endorsed Griffith’s dissent.
The government is free to “minimize” religious speech by limiting advertising space to subjects where religious views are rare, Gorsuch wrote.
“But once the government allows a subject to be discussed, it cannot silence religious views on that topic,” he wrote. “So the government may designate a forum for art or music, but it cannot then forbid discussion of Michelangelo’s ‘David’ or Handel’s ‘Messiah.’ And 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.”
The archdiocese was represented by former George W. Bush administration solicitor general Paul Clement, who asked the Supreme Court to reverse the lower court’s decision.
“WMATA has candidly explained that it views Christmas as having ‘a religious half’ and ‘a secular half,’ and that it will accept advertisements that address the latter, but not the former,” Clement wrote. “There is a word for that — two words, in fact. It is called viewpoint discrimination, and the First Amendment forbids it.”
Metro was represented by former Obama administration solicitor general Donald Verrilli, who said the decision was perfectly in line with Supreme Court precedent.
The transit agency’s guidelines “are entirely neutral with regard to the viewpoint expressed by a speaker on the subject of religion,” Verrilli said in his brief. “WMATA’s advertising space is closed to such speech whether the speech supports or opposes religion, religious practice, or religious belief, or seeks to express any other message on those subjects. This type of restriction is quintessentially viewpoint neutral. ”
The case is Archdiocese of Washington v. WMATA.