Supreme Court won’t hear challenge to DC Metro ban on religious ads

The Supreme Court on Monday said it would not take up the Catholic church’s challenge to the Washington, D.C., transit authority’s policy banning religious ads, allowing the policy to remain in place.

The Archdiocese of Washington had sued the Washington Metropolitan Area Transit Authority (WMATA) after the agency refused to run one of its Christmas ads, alleging that the policy violates the First Amendment.

The case appeared to be an attractive one for the court’s conservative wing, but with Justice Brett Kavanaugh recusing himself from consideration of the case because he was involved as an appeals court judge, the faction lacked the necessary four votes to grant the Archdiocese’s petition.

Justice Neil Gorsuch issued a dissent, joined by Justice Clarence Thomas, arguing that WMATA’s policy is “viewpoint discrimination by a governmental entity and a violation of the First Amendment,” noting that the agency ran more secular Christmas-themed ads.

“The Constitution requires the government to respect religious speech, not to maximize advertising revenues,” Gorsuch wrote. “So if WMATA finds messages like the one here intolerable, it may close its buses to all advertisements. More modestly, it might restrict advertisement space to subjects where religious viewpoints are less likely to arise without running afoul of our free speech precedents.”

“The one thing it cannot do is what it did here—permit a subject sure to inspire religious views, one that even WMATA admits is ‘half’ religious in nature, and then suppress those views,” he continued. “The First Amendment requires governments to protect religious viewpoints, not single them out for silencing.”

The dissent suggests that the conservative justices are eager to take up the First Amendment issue and are receptive to similar cases that will more easily garner the four votes required to grant a case. The court did not publish the vote tally for the WMATA case.

The Archdiocese had sued after WMATA refused to run an ad around Christmas 2017 featuring the silhouette of three shepherds and their sheep with the text, “Find the Perfect Gift.”

A district judge and the D.C. Circuit Court of Appeals sided with WMATA, which has argued that its policy is entirely in line with the Constitution.

“WMATA is entitled under the First Amendment to adopt viewpoint-neutral subject matter limitations to govern advertising in its transit system,” the agency said in a Supreme Court brief last year. “WMATA’s policy is neutral on its face and neutral in its application, and therefore entirely lawful as the court of appeals correctly held.”