In a statement, the Archdiocese of Washington expressed disappointment that the U.S. Supreme Court on April 6 declined to review a lower court’s ruling that the Washington Metropolitan Area Transit Authority’s prohibition of religious advertising did not violate the First Amendment. In 2017, the archdiocese filed a legal action in federal court challenging the transit system’s advertising guidelines after WMATA rejected an advertisement promoting the archdiocese’s annual “Find the Perfect Gift” initiative during the Advent and Christmas seasons.
“The Archdiocese of Washington is disappointed that the U.S. Supreme Court declined to grant our petition to review the Washington Metropolitan Area Transit Authority’s refusal to allow ‘Find the Perfect Gift’ advertisements to appear on Metro buses in the region,” the archdiocese’s statement said, later noting, “We will continue to be a voice on the importance of religious freedom and expression and hope that other matters pending before the Supreme Court will underscore these important constitutional issues.”
In the case of the Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, et al., the Supreme Court announced that it was denying the archdiocese’s petition to review the ruling of the United States Court of Appeals for the District of Columbia Circuit, which upheld WMATA’s ban on religious advertisements on its buses and trains. In 2015, the D.C. area transit agency adopted a policy prohibiting ads that promoted or opposed religions or religious beliefs or practices.
In denying the petition to review the case, the Supreme Court noted that Associate Justice Brett Kavanaugh “took no part in the consideration or decision of this petition.” Justice Kavanaugh had recused himself from taking part because he had earlier served on the lower court that heard the case, and he was nominated to the Supreme Court before it ruled on that matter. The Washington Post’s reporting on the issue noted that during oral arguments in that case before that lower court, then-Judge Kavanaugh had called WMATA’s ban of religious advertisements “pure discrimination.”
Supreme Court Associate Justice Neil Gorsuch issued a statement joined by Associate Justice Clarence Thomas in criticizing the Court’s decision not to review the lower court ruling, writing, “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.”
Justice Gorsuch’s statement noted, “At Christmastime a few years ago, the Catholic Church sought to place advertisements on the side of local buses in Washington, D.C. The proposed image was a simple one -- a silhouette of three shepherds and sheep, along with the words ‘Find the Perfect Gift’ and a church website address. No one disputes that, if Macy’s had sought to place the same advertisement with its own website address, the Washington Metropolitan Area Transit Authority (WMATA) would have accepted the business gladly. Indeed, WMATA admits that it views Christmas as having ‘a secular half ’ and ‘a religious half,’ and it has shown no hesitation in taking secular Christmas advertisements. Still, when it came to the church’s proposal, WMATA balked. That is viewpoint discrimination by a governmental entity and a violation of the First Amendment.”
The statement by Justice Gorsuch also said, “…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.”
The Archdiocese of Washington’s statement noted, “While considerations of the full court’s ability to hear the case may have impacted the decision, it is heartening to hear two justices stating that the denial of the ‘Find the Perfect Gift’ advertisement ‘is viewpoint discrimination by a governmental entity and a violation of the First Amendment.’ As these justices stated, ‘The First Amendment requires governments to protect religious viewpoints, not single them out for silencing.’”
WMATA in a statement praised the Supreme Court’s decision against reviewing the ruling by the lower court that the transit agency’s guidelines did not violate the U.S. Constitution.
After the Archdiocese of Washington filed its legal action in 2017 against WMATA’s prohibition on religious advertisements, Kim Fiorentino, the archdiocese’s chancellor and general counsel, said, “We believe rejection of this (‘Find the Perfect Gift’) ad to be a clear violation of fundamental free speech and a limitation on the exercise of our faith.”
Also when that legal action was filed, Paul Clement of Kirkland & Ellis LLP, who was serving as counsel for the archdiocese in the case, noted, “WMATA’s rejection of the archdiocese’s speech amounts to a violation of the First Amendment, plain and simple. We are bringing this complaint to vindicate the basic principle that the government may not allow a wide variety of speech in a forum and then turn around and deny the archdiocese access because of the religious nature of its speech.”
The archdiocese’s petition to the Supreme Court to review the lower court ruling noted that before the transit agency adopted its prohibition on religious advertising, “For years WMATA allowed advertising from religious and non-religious groups alike,” and “…as recently as 2015, WMATA ran advertisements for the archdiocese’s Lenten campaign, ‘The Light is On for You’ on the backs of 85 buses throughout the D.C. metropolitan area without reported complaint…”
And in another brief to the Supreme Court on the case, the archdiocese contended “WMATA’s no-religious speech policy plainly discriminates against religious viewpoints.”
In an April 6 email to the Catholic Standard newspaper and website of the Archdiocese of Washington, Anthony Esser, the coordinator of parish evangelization for the archdiocese, summarized the purpose of its Christmas campaign: “Find the Perfect Gift encourages parishes and individual Catholics to reach out to those looking for a spiritual home during Christmas and not only invite them to Mass but to engage with the richness of Catholic community. This effort is important for our community because it turns our celebration of God’s perfect gift, Jesus, into a mission, to spread the Good News that Jesus has come and offers us all new life in Him.”
The website for Find the Perfect Gift (FindThePerfectGift.org) includes Mass times, daily reflections, videos featuring Advent and Christmas traditions in different cultures, a “ways to give” section that includes charitable and volunteer activities, and parish resources for families, teachers and catechists.
