Monday, April 06, 2020

Supreme Court Denies Review In Bus Ad Case

The U.S. Supreme Court today denied certiorari in Archdiocese of Washington v. Washington Metropolitan Transit Authority, (Docket No. 18-1455, cert. denied 4/6/2020).  (Order List [scroll to end]).  In the case, the D.C. Circuit Court of Appeals rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads.  The ban includes ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese of Washington wished to purchase space on the exterior of buses for its Christmas season "Find the Perfect Gift" ad. (See prior posting.) The Circuit denied en banc review, over a dissents in an opinion written by Judge Griffith. (See prior posting.)

Justice Kavanaugh was part of the panel that heard the original arguments in the case in the D.C. Circuit, so he recused himself from considering the petition for review.  While the Supreme Court denied review, Justice Gorsuch joined by Justice Thomas filed a statement saying in part:
Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted for reasons admirably explained by Judge Griffith in his dissent below and by Judge Hardiman in an opinion for the Third Circuit....
... [T]he government may minimize religious speech incidentally by reasonably limiting a forum like bus advertisement space to subjects where religious views are unlikely or rare. But once the government allows a subject to be discussed, it cannot silence religious views on that topic.... 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.