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Supreme Court Declines Request that it Police Subway Ads

The Supreme Court Building - Supreme Court of the United States


Well, there is this:

https://www.reuters.com/article/us-usa-court-religion/u-s-supreme-court-declines-to-hear-religious-clash-on-washington-transit-ads-idUSKBN21O1S3

The Catholic Archdiocese of Washington had sought to buy ad space on the subways. The ad would have featured an image of three shepherds and two sheep -- the shepherds looking at a star, with a verse from Matthew, "Behold, I proclaim to you good news of great joy." Beneath this was a URL, FindthePerfectGift.org

The phrase "find the perfect gift" could of course be used by a mall or department store or by amazon.com. But if you go to the URL, you'll find that the "perfect gift" you are being asked to find is God's love.

Back in 1974, in the LEHMAN v. SHAKER HEIGHTS case, the US Supreme Court spoke to the decisions of transit authorities on such matters. The Lehman decision said that a bus or the like "is not a park or sidewalk or other public place for discussion." It is for riders a convenient way to get to work and to get back.  Because no "public forum" is involved, the agencies responsible can restrict access/ ad space “as long as the restrictions are ‘reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view."

The DC Circuit Court dismissed the lawsuit by the Archdiocese, saying that the Washington subway had followed the rule of reasonableness set out in that decision.

Now the Supreme Court has decided not to hear the case. So LEHMAN remains the law. Given recent decisions about bakers, wedding cakes, etc., this one might well have seemed up for grabs for the Archdiocese.

Personally, I don't have any strong feelings about it, but I find it interesting in a behavioral-sciences sort of way that the Justices backed off of this one. There may be more to their backing off than has yet been let on.


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  1. HenryApril 16, 2020 at 6:53 AM

    Christopher,

    The Reuters article to which you link states why the justices backed off, and it had nothing to do with the behavioral "sciences." Kavanaugh would have had to recuse himself, leaving a 4-4 split between the liberals and the right-wing justices, so there was no point to hearing the case. Most interesting was Gorsuch's comment that, if Kavanaugh had participated “our intervention and a reversal would be warranted."

    It is shocking and perhaps unprecedented that Gorsuch would state how he would rule, even though the Court did not hear the case. If a comparable case comes to the Court (and it well may, because other municipalities no doubt prefer to keep politics and religion out of their public transport), then Gorsuch would apparently not have an open mind and ought to recuse himself, though he no doubt would not.

    But it is not surprising that the five right-wing justices would overturn precedents -- both the precedent of Lehman and that of not expressing an opinion before a case is heard. That is why I do not call them "conservatives." In fact, they are not even justices anymore, in the sense that they do not decide cases on the basis of the U.S. Constitution and federal law. They are Republican Party activists. The very fact that Gorsuch apparently felt that he could speak for the other four right-wing justices (he implied that, if Kavanaugh had participated, the five of them would have reversed Lehman) is evidence of that.

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    Replies
    1. ChristopherApril 16, 2020 at 9:32 AM

      The Reuters article provides what I call in my last line, what has been "let on." I suspect there is more to it. Admittedly, I don't explain why here.

      Delete

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