WASHINGTON -- NEAR THE END of the hour allotted for oral argument in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston -- the St. Patrick's Day parade case -- Supreme Court Justice John Paul Stevens compressed the dispute to its essence.
He was quizzing John Ward, the lawyer for the gay group (known as GLIB for short). "They agree," said Stevens, referring to the South Boston Allied War Veterans Council that organizes the annual parade -- "that they can't exclude anyone because of sexual orientation, right? And you agree that a group can be excluded because of its message."
So which was it?
That's the nut of this case: When the veterans turned down GLIB's request to march in the 1992 and 1993 St. Pat's Day parades with a banner bearing its name and decorated with pink triangles and green shamrocks, what -- in the eyes of the law -- was taking place? Discrimination against homosexuals, which Massachusetts forbids? Or an exercise of free speech (in this case, the freedom not to promote an unwelcome message), which the First Amendment secures?
The answer isn't self-evident. How the Supreme Court rules will depend on what it sees when it looks at the veterans' parade and what it hears when it listens to GLIB.
Ward pushed the justices to see the South Boston parade as a nonexpressive "place of public accommodation . . . or amusement" -- the term used in Mass. General Laws, Chapter 272, Section 92A -- and not as the veterans' privately organized forum for celebrating their own religious, social and civic values. It was a weak argument, especially since the veterans have more than once kept out marchers whose message they didn't like -- including an antibusing group, the Ku Klux Klan, Noraid, even a truck bearing antigay signs.
But Ward had no choice; his case was riding on the point. If the St. Patrick's Day parade isn't a "place of public accommodation . . . or amusement," then it isn't covered by the antidiscrimination statute, and without that statute, GLIB cannot claim it is entitled to march.
And so GLIB, in its brief, analogized the parade to: July 4th festivities on a mall, Ollie's Barbeque, the Cheers Bar, Fenway Park, and First Night -- all of them open venues or events, none of them a vehicle for expression. In a colloquy with Justice Antonin Scalia, Ward even compared it to the once-segregated Topeka public schools that provoked Linda Brown's celebrated lawsuit. Not letting GLIB march, he insisted, was discrimination pure and simple -- his clients merely wanted to be in the parade, not to communicate anything by their presence. When they were rejected, it could only have been because they were gay.
But the justices weren't buying it.
"Your clients wanted to be in the parade," Justice Anthony Kennedy asked Ward bluntly, "to express a message, right?"
Scalia spelled it out. "GLIB wasn't there to recreate," he said. "Their purpose is to express gay pride -- they're there to promote a message."
No, said Ward, no message. The gay/lesbian marchers only wanted to identify themselves.
Hold on, retorted Justice Ruth Ginsburg. "The trial court listed three expressive purposes of GLIB."
Indeed it had. In December 1993, Superior Court Judge Harold Flannery found that GLIB's messages were: (1) to express its members' pride in their dual identities as Irish-Americans who are also homosexual, (2) to demonstrate diversity within the Irish and gay communities, and (3) to show support for the Irish-American homosexuals in New York who sought to march in the St. Patrick's Day parade there.
True, admitted Ward, GLIB has its messages -- but its members didn't carry signs spelling them out in the South Boston parade.
Justice David Souter leaned forward. "Are you taking the position that unless you literally carry signs expressing a message, the rule doesn't apply?"
And on it went. Ward was nimble, Ward was quick, but in the end Ward couldn't jump over an obvious logical hurdle. Ever since this fractious business began, no one has ever doubted that GLIB was formed, and pushed its way into the Southie parades, in order to make a statement. So how could it hope to come before the US Supreme Court and persuade the justices that its desire to march was devoid of any message or expressive character?
There was a humorous moment during the hearing. Chief Justice Rehnquist had asked Chester Darling, the veterans' attorney, whether one of the parade's mesages was "It's great to be Catholic."
Darling: "It certainly is, your honor."
Stevens: "Then why do they let the Baptist Bible Trolley in?"
Darling: "Well, my clients are ecumenical."
Stevens, grinning: "To a point."
Yes, to a point. And that is the point. If Southie's veterans decide that the Baptist Trolley people are in but the gay-pride people are out, no one has the right to second-guess them. No one has the right to force them to include, in their parade, messages they don't agree with.
From the outset, GLIB chose to press this fight in court. But it always had another option: It could have held its own parade.
(Jeff Jacoby is a columnist for The Boston Globe).
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