- The Washington Times - Monday, April 6, 2020

The Supreme Court on Monday refused to hear the Catholic Church’s demand to display pro-Christmas ads in the D.C. metro system, but one justice warned that this would not be the high court’s last word on this religious speech issue.

Justice Neil M. Gorsuch said it was a clear-cut case of viewpoint discrimination when the Washington Metropolitan Area Transit Authority put the kibosh on the church’s Christmas ad. He said the ad would have been allowed without question had Macy’s sponsored it.

“Once the government allows a subject to be discussed, it cannot silence religious views on that topic,” Justice Gorsuch wrote in a statement joined by Justice Clarence Thomas.

If Macy’s or Amazon wanted to run a Christmas ad with silhouettes of reindeer and the words “Find the Perfect Gift,” that would have been permitted, the archdiocese argued while noting that its 2017 advertisement depicting shepherds could not be placed on the sides of buses.

Justice Gorsuch reasoned that the government can’t permit a forum for art and music but then forbid Handel’s “Messiah” or Michelangelo’s “David.”

“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,” he said.

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The Archdiocese of Washington brought the case after WMATA rejected its 2017 ad with the shepherds and sheep. The transit agency cited a policy that barred it from promoting or opposing religion through advertisements.

The church argued that the transit system ran ads touching on religion for some ad buyers despite its policy.

In court documents, the archdiocese noted that WMATA permitted ads from Christian radio station WGTS 91.9 FM and allowed the Salvation Army’s Christmas-related ads to be depicted in advertisements.

The church also pointed to cases in which the Supreme Court struck down policies allowing a government to ban all religious speech from a forum that was otherwise open to secular views.

“Viewpoint discrimination is always a matter of grave concern, but viewpoint discrimination against religious speech is particularly pernicious,” the archdiocese’s attorneys argued in court papers.

The advertisement’s mission, from the Catholic Church’s perspective, was to share a website where people could find charitable opportunities and times for church services.

WMATA once allowed religious and nonreligious advertisements to help fund the city’s bus system, but it imposed a restriction in 2015 after a survey found that 58% of riders didn’t approve of “issue-oriented advertising.”

The transit system made the change after rejecting an ad depicting a cartoon of the Prophet Muhammad sponsored by Pamela Geller, whose American Freedom Defense Initiative has been accused of promoting anti-Muslim bias. Ms. Geller had hosted a competition for cartoon submissions featuring the founder of Islam, but creating images depicting Muhammad runs afoul of Muslim tenets.

Metro did not say whether Ms. Geller’s submission caused the policy change, according to reports at the time.

The court’s refusal to hear the Catholic Church’s appeal leaves in place the ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which found no conflict with the First Amendment in banning such advertisements.

The appeals court reasoned that the transit system ads promoting the Salvation Army and a Christian radio station were different from the church’s Christmas advertisement because WMATA’s focus wasn’t targeted at religious groups but at religious messages.

The archdiocese needed four justices to vote to hear its challenge.

Justice Brett M. Kavanaugh did not weigh in on whether or not to grant its petition for review. He participated in the dispute while he sat on the D.C. Circuit before he was nominated to the high court.

A spokesperson for WMATA said officials were “pleased” that the Supreme Court decided not to take up the case.

“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,” the spokesperson said.

The D.C. Circuit’s ruling conflicts with the 7th U.S. Circuit Court of Appeals, which ruled that a government can’t separate Christmas speech into religious versus secular matters.

But like the D.C. federal court, the 9th U.S. Circuit Court of Appeals has allowed the government to restrict an ad featuring the Ten Commandments at a school ballfield.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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