(the 2005 parade, from Flickr user rcolonna)
While working on a First Amendment paper here in law school I dug up the case of Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston. The background of the case is as follows: in 1947 Boston City Council has ceased to directly sponsor the St. Patrick’s Day / Evacuation Day parade (which is going on as I write this), and gave the South Boston Allied War Veterans Council the right to conduct the parade themselves. From 1948 to 1991, they were the only group each year to apply for a permit for the parade route. In 1992 GLIB, the Irish-American Gay Lesbian, and Bisexual Group of Boston, applied to be part of the parade. GLIB cited Massachusetts public accommodation laws which prevent such discrimination, and said their sexual orientation was only incidental to the primary focus of the group: Irish heritage. GLIB marched in the parade that year without incident, and in 1993 the South Boston Allied War Veterans Council filed suit to block their entry for the following year.
In 1995, the Supreme Court unanimously held that parades are a form of public expression under First Amendment, and the Commonwealth could not force a private group applying for a public demonstration permit to include members of a group contrary to the private group’s expression (presumably, the Council thought GLIB’s marching was contrary, though this is where many take serious issue with the case). The critical language from the case states:
Since every participating unit affects the message conveyed by the private organizers, the state courts’ application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade. Although the state courts spoke of the parade as a place of public accommodation . . . once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts’ application of the statute had the effect of declaring the sponsors’ speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners’ speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State’s power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. [515 U.S. 557, 572-73.]
While it’s very easy (for me, anyway) to loathe the application of the decision in this case to ban a group of proud Irish-Americans the right to march in the single largest St. Patrick’s Day parade this side of the Atlantic, the holding does have merit. Say for example, if I were to organize an anti-war demonstration: I wouldn’t want the state to have the power to force a pro-war group onto may parade out of some fairness argument. Nor, for example, would I want the KKK to be in the Southie parade (the Wikipedia page for the case alleges they tried, and the Council denied them).
That said, the direct consequence of the case is deplorable. This parade is so large and such a part of Boston’s observances of the day, it certainly doesn’t feel right at all to allow this quasi-state-sponsored discrimination to continue. Aren’t we supposed to be the beacon of hope and tolerance in gay rights? Where’s the empathetic, egalitarian Massachusetts outrage on this issue? Or do we check our political rage at the door when we drink green Budweiser?
And what exactly is the communicative element of this parade that GLIB’s participation so offends? I hear and read a lot of talk about “Irish family values” come up in defending this action. How does letting Star Wars Stormtroopers march in the parade further that message? It seems as the Council would seek to have it both ways in this one: a sufficiently vague expression to allow every group they think would be fun into the parade, but a sufficiently communicative and specific expression to find GLIB’s participation as offensive to the message and thus have a legally valid reason for exclusion. I’m not saying Stormtroopers shouldn’t be in the parade (they should), I’m saying GLIB should be in there, too.
John Drake at the Globe noted the political implications of Boston mayorial candidates marching in the parade (Menino is doing his usual breakfast-but-not-the-parade, Yoon and Flaherty will march, McCrea will not). I wonder if someone has a rundown of which City Counselors decided to march as well. I won’t lie; I’ve been to the parade myself several times, but I think it’s sad that the organizers include every single group that has a marginal interst in St. Pat’s into the parade and block these true Irish-Americans simply because being gay somehow means you are contrary to the message of the parade. And until this is fixed, I’m far from inclined to return to the celebrations. Drake notes that longtime parade organizer John “Wacko” Hurley (the Hurley in the case caption above) is retiring this year. Perhaps this will usher in some well-needed change?
Why are you liberals always trying to ruin a a great traditional parade, just let things be. Its a traditional neighborhood with traditional values.
Comment by Concerned Boston Resident — 28 April 2009 @ 2:10 am |
9-0 Supreme Court decision …… Why are you liberals always lookign to change things. Its a traditional neighborhood with traditional values. They wanta parade of family nature… Just let things be and move on
Comment by Concerned Boston Resident — 28 April 2009 @ 2:12 am |
As I stated above, the Supreme Court decision is not really about whether gays should be allowed to march in the parade – it’s about compelled speech, and thus really could only go one way. Inasmuch as we have a right to free speech under the First Amendment, the Court has held that we have a right to not speak.
However, I reject the premise of that argument as it applies to the St. Patrick’s Parade: I would argue (in a way it seems those who argued this did not) that this is a not a private event. Were this a wholly privately organized parade there’s no question that a party can include and exclude as they so choose. This however is a public – or as you say, “community,” event – and thus is an action of the people. The parade uses city and state resources, is financially supported if not sanctioned by the city, the parade relies on the city’s sanction and transit to operate, and the city foots the bill when the million people come and trash Broadway each year. In fact, for the first several decades of the parade the city itself did organize it. This no longer feels like the right of free speech or free association as it applies to private parties. This begins to feel like Roberts v. United States Jaycees, or Bd. of Directors of Rotary International v. Rotary Club of Duarte, or other cases in which the Court held that discriminatory action was not excused when dealing with the right of freedom of association. If anything, this is like Boy Scouts of America v. Dale, which is a highly disputed, viciously fought 5-4 decision on whether a group can so loosely define its message as both Hurley and the BSA did. Given this recent ruling, I am far from certain certain that the court would go the same way this time as it did last.
I categorically reject the premise that this is a “family values parade.” I also categorically reject the idea that “family values” means non-gay, but that’s a whole other issue. As for “traditional neighborhood” argument, I think any half-respectable Boston resident who can remember back to the era of ROAR and the busing incidents would think twice before trying to claim that we should be proud of South Boston’s xenophobia. The history of the Boston St. Patrick’s day parade is not one of a quiet neighborhood looking to express itself. It is an 150-year old parade which has occupied all different corners of Boston, and for 100 of those years was hosted by the city itself.
Comment by Andy — 28 April 2009 @ 8:30 pm |