In arriving at its tidy, little unanimous decision to uphold the exclusion of a gay, lesbian and bisexual group from Boston’s St. Patrick’s Day parade, the Supreme Court sends a timely message:
Like Voltaire, the high court says it may not agree with what you say, yet it will defend your right to say it.
But then it takes Voltaire a further step: It will defend your right to say it, but not necessarily the manner or place in which you want to say it.
The central question is whether Boston’s venerable St. Patrick’s Day parade, which at times has included as many as 20,000 marchers and drawn up to a million watchers, is a private march or a “public accommodation.”
If it is a private march, it is protected by the 1st Amendment as a form of free expression. But if it gets public support or is offered as an activity that is open to the community, it may fall into the category of a public accommodation, which makes it a civil rights matter.
Definitions of “public accommodations” have changed over the years to where they can include country clubs and other ostensibly private organizations, if they provide public services and meals for occasionally public events.
A 1994 ruling by the Supreme Judicial Court of Massachusetts held that the city’s St. Patrick’s Day parade fell within the state’s definition of a “public accommodation” and therefore could not discriminate on the basis of “sexual orientation.” A lower state court had similarly ruled.
But the U.S. Supreme Court shrugged off the civil rights question and focused on the 1st Amendment, pure and simple. With that, they made a relatively simple matter out of an issue that has vexed Boston and New York, where the Ancient Order of Hibernians also had been engaged in a long-running battle with its local gay Irish.
By analyzing the parade as a private event, the court moved the matter to the organizers’ home turf. As Justice David H. Souter said in the court’s ruling, government cannot interfere in private expression, even for the “enlightened” purpose of preventing discrimination.
As the court noted, gays, lesbians and bisexuals were not excluded if they wanted to participate in the parade as individuals. It was only their demand to march as a group (an Irish-American group organized, Souter noted, for the express purpose of marching in the parade) carrying a banner to announce who they were.
Further, the group was not the first group with a controversial theme to be excluded. In the past, so had the Ku Klux Klan and a local anti-school busing group.
Most important, 1st Amendment law obliged the city to cooperate with homosexuals on an equal opportunity basis if they wanted to organize their own parade, in which their message would be protected the same way the St. Patrick’s Day parade message is being “protected” from their message.
That’s a decision civil libertarians should love, even though to arrive at it the Supreme Court followed an adage adored by lawyers and pundits everywhere: Don’t let facts get in the way of a good argument.
For example, Souter mentions facts that make this private parade sound very much like a public event. The city formally sponsored the parade until 1947 and, at the time the gay Irish group began its crusade, the city still allowed the parade to use the city’s official seal. It also provided printing services and “direct funding,” although Souter does not mention how much.
Does that much official blessing make the ostensibly private parade a public event? Souter does not say. After dropping that little nugget in his opinion’s early pages, he does not revisit it.
Perhaps a resolution of that issue will come another day, like perhaps the day the court decides the still-unresolved issue of whether “public accommodations” law obliges the Boy Scouts of America to admit atheists and homosexuals.
In what may be a harbinger of future rulings, Souter’s opinion significantly and respectfully uses the terms “gay,” “lesbian” and “bisexual” throughout, a far cry from the hostile language laid down by Chief Justice Warren Burger who, in a 1986 gay-rights opinion slammed “homosexual sodomy” as “infamous,” “heinous” and inimical to “millennia (thousands of years) of moral teachings.” Perhaps the high court is gaining respect, if ever so gradually, for the rights of gays and lesbians.
In the meantime, gay and lesbian rights leaders might take a hint from the Congregation Beth Simchat Torah, a gay and lesbian New York synagogue that has decided to use “lobbying and education,” not a court fight, to get into the annual Salute to Israel parade.
Good idea. It may not be as quick or dramatic as a court decision, but its positive impact lasts longer.
