The Archdiocese of Washington sued the Washington Metropolitan Transit Authority (“WMATA”) after WMATA refused to run one of the Archdiocese’s ads on the outside of city buses at Christmastime.  (We previously blogged about this case last August.)  The ad depicts a starry night and the silhouettes of three shepherds and sheep on a hill facing a bright shining star high in the sky along with the words “Find the Perfect Gift.” 

WMATA rejected the ad, saying it violated WMATA’s “Guidelines Concerning Commercial Advertising.” Specifically, the Guidelines prohibit, among other things, ads that “promote or oppose any religion, religious practice or belief.” WMATA had updated its Guidelines in 2015 to prohibit all issue-oriented ads, including ads related to religion.  The D.C. Circuit court held that WMATA was within its rights to establish rules that limit the types of advertising it accepts, so long as the rules are reasonable and don’t suppress a particular viewpoint. Here, the court said that WMATA’s rules were both reasonable and viewpoint neutral.  Responding to an argument from the Archdiocese that it wasn’t proper to accept ads for Christmas sales, but not for Christmas itself, the court wrote, “ads promoting Christmastime sales are not expressing a view on Christmas any more than a McDonald’s ad expresses a view on the desirability of eating beef that demands the acceptance of a contrary ad from an animal rights group.”

The Archdiocese sought to appeal the case, but earlier this month the Supreme Court denied cert (with Justice Kavanaugh taking no part in the decision).  Interestingly, however, Justices Gorsuch and Thomas issued a statement in connection with the denial of cert, which gives some insight into (at least) their thinking about the First Amendment issues raised by this case.  

Justices Gorsuch and Thomas said that since the full court could not hear the case (due to Justice Kavanaugh recusing himself), it made the case a poor candidate for the Supreme Court's review.  They said, however, that if they had heard the case, they would have reversed the D.C. Circuit's decision.  Here's why. 

The Justices said that WMATA's actions were unconstitutional because, as a government entity, WMATA engaged in viewpoint discrimination in violation of the First Amendment.   Noting that WMATA would have accepted essentially the exact same ad if it had been submitted by Macy's, Justices Gorsuch and Thomas simply did not buy the distinction, accepted by the D.C. Circuit, that there was a difference between ads for shopping at Christmas and ads promoting religion at Christmas. 

The Justices' position here is that, once government allows a subject to be discussed, "it cannot silence religious views on the subject."  Therefore, "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." 

It will be interesting to see whether this warning from Justices Gorsuch and Thomas will cause transit authorities (and other quasi-governmental entities that run advertising) around the country to take a less restrictive view about accepting religious and other issue advertising.  Or, if they feel so strongly about avoiding religious and issue advertising, will some ban Christmas-themed ads completely?