Washington — The Supreme Court on Monday declined to take up a challenge to a ban on religious advertising by the Washington metropolitan area's public transit authority, allowing the policy to remain in place.
Justice Brett Kavanaugh declined to participate in the consideration of the case, as he heard arguments in the dispute in 2018 as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.
The legal battle over the religious advertising prohibition dates back to 2017, when the Archdiocese of Washington sought to showcase its Christmas-themed ad campaign on the outside of public buses operated by the Washington Metropolitan Area Transit Authority (WMATA). The ad featured a silhouette of three shepherds and sheep with the words "Find the Perfect Gift" and directed people to a website encouraging them to participate in service projects, give to Catholic charity and attend Mass during the Advent season, according to filings with the Supreme Court.
But WMATA declined to run the ad on the side of city buses because of its 2015 policy barring advertisements that "promote or oppose any religion, religious practice or belief." The policy, which arose from the submission of an ad featuring a cartoon depicting the Prophet Muhammad, also prohibits political and advocacy ads.
The Archdiocese of Washington filed a lawsuit, arguing the transit authority's guidelines on religious ads violated the First Amendment and the Religious Freedom Restoration Act.
A federal district court in Washington ruled against the archdiocese, and a panel of judges on the D.C. Circuit upheld the ban. While Kavanaugh participated in oral arguments before the appeals court, he did not take part in the decision because by that time he had been nominated to the Supreme Court. The full D.C. Circuit declined to review the ruling, and the archdiocese appealed to the Supreme Court last year.
In its filing with the high court, the archdiocese argued that "if Amazon or Macy's had wanted to run an advertisement with the same text and graphics or with reindeer instead of shepherds, there is no question that WMATA would have readily accepted the advertisement."
"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," attorney Paul Clement, former solicitor general under President George W. Bush, wrote for the archdiocese. "There is a word for that — two words in fact. It is called viewpoint discrimination, and the First Amendment forbids it."
But WMATA, represented by former solicitor general Donald Verrilli, who served under President Barack Obama, argued that the archdiocese was calling for a "radical reworking of the law" that would "wreak havoc with the sound administration of transit advertising programs, effectively forcing transit authorities either to accept all advertising or forego advertising revenue altogether — precisely the kind of 'all or nothing' choice that this court has said public forum law should not force upon government bodies."
"[WMATA's] guidelines are entirely neutral with regard to the viewpoint expressed by a speaker on the subject of religion," lawyers for WMATA told the court. "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 messages on those subjects. This type of restriction is quintessentially viewpoint neutral."
In an opinion respecting the Supreme Court's decision not to take up the appeal by the Archdiocese of Washington, Justices Neil Gorsuch, joined by Justice Clarence Thomas, said the case is a "poor candidate for our review" because the full court could not participate.
Still, Gorsuch wrote that the ban on religious advertising "is viewpoint discrimination by a governmental authority and a violation of the First Amendment."
"The First Amendment requires governments to protect religious viewpoints, not single them out for silencing," he said.