Archdiocese of Washington v. Washington Metropolitan Transit Authority, No. 18-1455. Petition for Certiorari denied on April 6, 2020.
In connection with the Court’s denial of the petition for certiorari, Justice Gorsuch, joined by Justice Thomas, issued a statement which leaves no doubt that the two would conclude that the transit authority’s current ban on religious advertising on its buses violates the First Amendment as it is reflects government engagement in impermissible viewpoint discrimination.
Certiorari was denied because Justice Kavenaugh was involved in the case when he served on the U.S. Court of Appeals for the District of Columbia Circuit. As he could not participate in reviewing a case he was involved in, deciding the case with less than a full complement of justices appeared unwise.
The decisions below violate Supreme Court precedent, Justice Gorsuch noted, as the Court has determined that “religion” includes both subject matter and viewpoint. Once subjects are opened for discussion, religious views cannot be suppressed:
…[O]nce the government allows a subject to be discussed, it cannot silence religious views on that topic…[O]nce 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 government] cannot do is what it did here—permit a subject sure to inspire religious views…and then suppress those views. The First Amendment requires governments to protect religious viewpoints, not single them out for silencing.
–Statement respecting denial of certiorari at pp. 2- 3.
JustLawful aside: The great benefits of opinions accompanying denials of certiorari is that they not only serve to foretell the future, at least as to some justices’ views, but they also offer a brevity that is scarce in current jurisprudence.