Exclusion of Gays In Parade Upheld
Court lets abortion-clinic protection stand
ONE of the loudest cases taken by the Supreme Court this term ended quietly yesterday when the high court ruled unanimously that the sponsors of a popular St. Patrick's Day parade in Boston could exclude a group of Irish-American lesbians and gays who wanted to participate.
Though widely referred to as a "gay-rights" discrimination case, in fact the so-called Hurley decision was a First Amendment free-speech case asking the question: Under what terms can people or groups associate privately?
The case achieved national prominence in the early 1990s when the parade's sponsors, the South Boston Allied War Veterans Council, refused to allow gays and lesbians to participate. In 1993 a Massachusetts court ruled that the veterans council was forced to allow the gays to participate on the grounds that the parade took place in a public space.
But the Supreme Court reversed the Massachusetts court, stating, in Justice David Souter's opinion, that "the issue ... is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey."
The unanimous decision showed that the court was not prepared to revise the conflict between public accommodation and free speech, say legal scholars. "It was public accommodation v. First Amendment rights," says Georgetown University law professor Michael Seidman. "The court clearly said that free speech won. But I don't think this case portends anything for gay rights. That will be decided later."
The issue of gay rights comes up starkly in the next court term. In October, the court hears a controversial case in which the Colorado Supreme Court struck down a state legislative amendment that prohibits local governments from passing laws discriminating against homosexuals.
Some legal scholars feel the South Boston case was too difficult and contentious to frame in that manner. Were five justices to have found that the Irish-American group did have the right to march, the issue of the character of government intrusion into the rights of private groups would have been dramatically opened up.
The St. Patrick's Day parade in South Boston dates back past the turn of the century, but since 1947 it has been run by the veterans council. The council, until 1994, had set very loose rules for the types of groups participating - banning only extreme groups such as the Ku Klux Klan.
As a result of the 1993 state ruling, the veterans council adopted new guidelines and standards of participation. This year only participants commemorating the role of traditional Irish families were allowed to march.
The conflict between free speech and public accommodation will also be tested in the next few weeks when the court rules on a church-state case emerging out of the University of Virginia. Known as "Rosenberger," the court has to decide whether the regents of the university have the right to exclude a Christian fundamentalist publication from benefitting from a student activity fee that all students are required to pay.
In other decisions, the Supreme Court rejected a legal challenge to the federal law that now protects access to abortion clinics throughout the US. The justices let stand an appeals court ruling that held that the law at issue, the Freedom of Access to Clinic Entrances Act, did not infringe on free speech rights.
Opponents of the law have argued that by prohibiting the use of force and physical obstruction of abortion clinic entrances, their ability to freely speak against abortion has been chilled.
High court justices also rejected an Illinois couple's attempt to regain adoptive custody of a boy known as Baby Richard. In a widely publicized case, the Illinois Supreme Court had ruled that the child's 1992 adoption had been illegal because the natural father had not known it was imminent.