Supreme Court Declines to Take Up Challenge to Religious Advertising Ban

By Mark Walsh — April 06, 2020 3 min read
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The U.S. Supreme Court on Monday declined to take up a challenge to a public transit agency’s categorical exclusion of religious advertising, in a case in which several of the court’s decisions involving religious speech in public schools were widely cited.

Had the justices granted review of Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (Case No. 18-1455), their eventual ruling could have had significant implications for religious speech in schools.

The case stems from the 2017 Christmas season, when the Roman Catholic Archdiocese in the nation’s capital sought to run ads on the transit authority’s buses evoking the theme “Find a Perfect Gift,” which were meant to share a message of hope, welcoming people to Christmas Mass or encourage public service, court papers say.

The transit agency rejected the ads based on its guidelines against religious advertising. The Archdiocese sued under the First Amendment, alleging that the agency engaged in impermissible viewpoint discrimination since it had accepted ads from the Salvation Army and a Christian radio station.

The archdiocese lost in a federal district court and the U.S. Court of Appeals for the District of Columbia Circuit, which held that “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.”

The two-judge D.C. Circuit panel that decided the case said its view that religion could be categorically excluded was consistent with a 1999 ruling by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, holding that a school district could exclude religious messages from the advertising on a high school baseball fence.

In its appeal to the Supreme Court, the archdiocese argued that the transit agency’s “no-religious-speech policy discriminates against religious viewpoints in the exact same way as the policies invalidated” in three high court cases on religious speech in public schools.

Those cases are Lamb’s Chapel v. Center Moriches Union Free School District, a 1993 decision about a district’s refusal to open its facilities afterschool for the showing of a Christian film series; Rosenberger v. Rector and Visitors of the University of Virginia, a 1995 ruling about the funding of student religious speech; and Good News Club v. Milford Central School, a 2001 decision involving an afterschool Bible club that sought to meet in a public school.

On Monday, the Supreme Court declined to hear the archdiocese’s case, with Justice Brett M. Kavanaugh not participating in that action because he was on the three-judge D.C. Circuit panel that had first heard arguments in the case in 2018. He was nominated to the Supreme Court while the case was pending and did not participate in the decision.)

Justice Neil M. Gorsuch wrote a statement “respecting” the denial of review that was joined by Justice Clarence Thomas. Gorsuch said that because a full court could not hear the case, “it makes a poor candidate for our review.”

But he left little doubt about how important he thought the issue was and where he would likely fall.

“But for that complication, however, our intervention and a reversal would be warranted,” Gorsuch wrote. The Washington transit agency’s policy “is viewpoint discrimination by a governmental entity and a violation of the First Amendment,” he said, citing Lamb’s Chapel, Rosenberger, and Good News Club.

“Once the government allows a subject to be discussed, it cannot silence religious views on that topic,” Gorsuch said. “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.”

A version of this news article first appeared in The School Law Blog.