WASHINGTON (CN) — The Supreme Court on Monday said no thanks to taking up a debate over the right of the Catholic church to post religious advertisements on the side of Washington buses, but Justice Neil Gorsuch warned the local transit agency to tread carefully on the First Amendment.
The disputed ads included a silhouette of three shepherds and sheep with the words “Find the Perfect Gift” and listed a church website. The D.C. Circuit ruled in 2018 that the Washington Metropolitan Area Transit Authority had not violated the Archdiocese of Washington’s right to free speech when it refused to accept the advertisement encouraging people to attend Catholic mass during the 2017 Christmas season.
While the high court declined to hear the case, Gorsuch, a Donald Trump appointee, wrote a three-page statement cautioning the government transit agency that if it found religious messaging intolerable it could close its doors to advertisements altogether, or reserve limited ad space for those with religious viewpoints.
“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. The First Amendment requires governments to protect religious viewpoints, not single them out for silencing,” Gorsuch wrote.
In the course of litigating the case, WMATA had admitted that Christmas is a national holiday that bears both a secular half and a religious half.
However, the conservative justice chided the government for misinterpreting Supreme Court precedent. The high court does allow the government to minimize religious speech by “reasonably limiting” forums like bus ads to subjects where religious views are “unlikely or rare.” But Gorsuch argued that the transit agency cannot censure religious topics once it has allowed them to be discussed.
“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,” Gorsuch wrote. “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.”
The D.C. Circuit ruling in favor of the transit agency back in 2018 had swung in part on the concession by the archdiocese that advertising space on buses does not amount to a public forum.
“The Archdiocese’s position would eliminate the government’s prerogative to exclude religion as a subject matter in any non-public forum,” U.S. Circuit Judge Judith W. Rogers wrote at the time.
Justice Brett Kavanaugh, who sat on the D.C. Circuit panel that decided the case two years ago, took no part in the decision to deny the archdiocese’s petition for writ of certiorari.
Gorsuch noted his colleague’s absence from consideration of the case.
“Because the full court is unable to hear this case, it makes a poor candidate for our review,” Gorsuch wrote. “But for that complication, however, our intervention and a reversal would be warranted.”