The Supreme Court just rejected a “religious freedom” case, but not without commentary from two of the most conservative justices.

Back in November of 2017, the Archdiocese of Washington sued the Washington Metropolitan Area Transit Authority (WMATA) because it wouldn’t accept a simple ad that said “Find the perfect gift” that encouraged people to give God a try this Christmas. Instead, the Catholic Church was told the ad violated WMATA’s guidelines.

This wasn’t some anti-Catholic sentiment. For the WMATA, this was the equal application of a policy prohibiting all “issue-oriented advertising” from buses and trains. The policy was originally adopted to prevent an anti-Muslim hate group from putting ads up, but blocking otherwise acceptable ads from atheists, Catholics, non-profit groups, and others seemed like a bridge too far. At least that’s what the other side was arguing: There was no good reason to block ads involving religion, certainly not ads that weren’t provocative or hateful.

The odd thing is that the ad would’ve been acceptable if the Church was selling, say, a plastic cross because that would’ve been seen as marketing. But urging people to try religion was seen as advocacy — and therefore a violation of the rules. The Archdiocese said in the lawsuit that the policy had “established a regime that is hostile to religion.”

A federal judge didn’t agree with that assessment. By his logic, WMATA’s rules were applied to all groups equally. Maybe the rules overreached, but they weren’t discriminatory.

The Archdiocese appealed the ruling, and in August of 2018, we got a decision from the D.C. Circuit Court of Appeals. (Interestingly enough, Brett Kavanaugh was one of the three judges assigned to hear the case, but because he had been nominated to the U.S. Supreme Court after the oral arguments, he didn’t play a role in the decision.)

The two remaining judges, Judith W. Rogers and Robert L. Wilkins, both ruled that the earlier decision was correct and WMATA did nothing wrong.

The Archdiocese has not shown… that WMATA is impermissibly suppressing its viewpoint on an otherwise permitted subject, and its claim of discriminatory treatment is based on hypothesis. … Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices. Because the Archdiocese has not demonstrated a likelihood of prevailing on the merits or that the equities weigh favorably, it has not met the demanding standard for a mandatory preliminary injunction.

The judges also noted that the WMATA was not a public forum. They had the right to set their own rules, as long as the rules were applied fairly. That’s what happened here.

Naturally, there was another appeal to the Supreme Court. This was one of those “religious freedom” cases that’s red meat for the SCOTUS conservatives, so there was a possibility that the justices would overturn the earlier rulings and make sure religious ads could appear on all city buses and trains, despite rules intended to prevent controversy. Had they done that, it would have also opened the door to ads from atheists, Satanists, and everyone else who doesn’t belong to the Christian majority but loves raising hell.

But that’s not what happened this morning. The Court declined to take up the case, leaving the earlier rulings in place.

Normally, you need four judges to accept a case. Kavanaugh didn’t play a role in debating or deciding this one. With him out, those four votes weren’t there. We won’t know what the majority’s reasoning was, but Justices Neil Gorsuch and Clarence Thomas released this statement disagreeing with the decision:

… The Constitution requires the government to respect religious speech, not to maximize advertising revenues. So if WMATA finds messages like the one here intolerable, it may close its buses to all advertisements. More modestly, it might restrict advertisement space to subjects where religious viewpoints are less likely to arise without running afoul of our free speech precedents. 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.

Again, the rejection of advocacy ads altogether means the WMATA isn’t singling out religious speech specifically. But those two justices say that rejecting advocacy ads — the kind where religion may pop up as a subject — is a form of discrimination that shouldn’t be allowed. Hard to see how the WMATA could craft a workable advertising policy without saying no to the kinds of ads intended to generate controversy even if the Catholic one is question wasn’t a problem.

Anyway, those two were outnumbered. This case is over. The Supreme Court has chipped away quite a bit at the wall between church and state, but they won’t do any more damage with this case.

(Large portions of this article were published earlier)

