Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995)

2012-07-13 07:14:30

March 17 in Boston is St. Patrick’s Day and Evacuation Day, marking Washington’s military victory over the British in 1776 and their departure from South Boston. Until 1947, the city formally sponsored the St. Patrick’s Day-Evacuation Day parade; the city then officially turned sponsorship over to an informal group, the South Boston Allied War Veterans Council, although through 1992 the city also allowed the group to use the official city seal and provided direct monetary support for the parade.

In 1992, the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) was formed to march in the parade. GLIB’s members sought.

to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals, to demonstrate that there are such men and women among those so descended, and to express their solidarity with like individuals who sought to march in New York’s St. Patrick’s Day Parade.

Although rejected by the Council, GLIB marched peacefully under their own banner pursuant to a court order, but the Council again rejected their application to march the next year.

GLIB again filed suit against the Council and John J. ‘‘Wacko’’ Hurley, a representative of the Council whom the trial court found made the decisions as to who would march. The court concluded that the parade, a huge event attracting up to a million observers and as many as 20,000 marchers, was a place of public accommodation within the meaning of Massachusetts antidiscrimination statutes, and that the defendants had unlawfully excluded GLIB on the basis of its members’ sexual orientation. The state supreme court affirmed, rejecting the defendants’ argument that forcing it to accept GLIB violated its rights to free speech or expressive association under the First Amendment to the U.S. Constitution.

The defendants sought review of this decision from the U.S. Supreme Court, which unanimously reversed, holding that applying the state public accommodations law to the parade violated the Council’s First Amendment rights. Because GLIB did not challenge the trial court’s conclusion that there was insufficient government involvement to count as ‘‘state action’’ and trigger GLIB’s own rights under the U.S. Constitution, the only issue was whether the statute as applied violated the parade organizers’ First Amendment rights.

The U.S. Supreme Court held that it did. Independently reviewing the factual record because First Amendment rights were at stake, the Court held that parades such as the South Boston St. Patrick’s Day- Evacuation Day parade were inherently expressive. It did not matter that the organizers could not show a precise message with which GLIB’s participation as a unit would conflict; ‘‘a narrow, succinctly articulable message is not a condition of constitutional protection.’’ As coordinators of the parade’s message or messages, the Council were in effect the ‘‘editors’’ of the parade, with a First Amendment right to choose to include only those messages of which they approved. The Council would let GLIB’s members march with other units; it was only GLIB’s efforts to march under their own message or banner that the Council resisted, and that choice was constitutionally protected. This notion of editorial or speaker autonomy was supported by precedent, and in turn was controversially extended in Boy Scouts of America v. Dale (2000).

DAVID B. CRUZ

References and Further Reading

Hutchinson, Darren Lenard, Accommodating Outness: Hurley, Free Speech, and Gay and Lesbian Equality, University of Pennsylvania Journal of Constitutional Law 1 (1998): 85.
Madigan, James P., Questioning the Coercive Effect of Self- Identifying Speech, Iowa Law Review 87 (2001): 75.
Sunder, Madhavi, Authorship and Autonomy as Rites of Exclusion: The Intellectual Propertization of Free Speech in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Stanford Law Review 49 (1996): 143.
Yackle, Larry W., Parading Ourselves: Freedom of Speech at the Feast of St. Patrick, Boston University Law Review 73 (1993): 791.

Cases and Statutes Cited

Boy Scouts of America v. Dale, 530 U.S. 640 (2000)