For a period of three years it was a violation of law in Massachusetts to refuse to celebrate homosexuality in a parade conducted anywhere in the state. This case marked the first time in legal history that the government compelled private parade organizers to celebrate a gay life style or be prosecuted under a state penal statute. Massachusetts became the first and last state in the nation to strip such parades of constitutional protection and interpret a public accommodations statute in such a constitutionally offensive manner.
The lone dissent at the Supreme Judicial Court, Associate Justice Joseph Nolan, began his dissent with the stinging words: "Today will be regarded as a sad and frustrating day in the history of the First Amendment to the United States Constitution... The majority acquiesces in a judge's order instructing a private group that if it wishes to express itself at all, it must include in its expression a particular idea, one with which the group does not agree. One must strain to recall or even to imagine such an obvious violation of the revered right of free speech."
The struggle pitted a group of aging World War II and Korean War veterans and their sole practitioner attorney, Chester Darling, against a well-funded array of major law firms, state court judges, a state anti-discrimination agency, academe, the Gay and Lesbian Advocates and Defenders (GLAD), the Massachusetts state chapter of the Civil Liberties Union, the American Civil Liberties Union, various amici, two city administrations, the state attorney general's office and private attorneys.
The struggle wound its way not only through the state court system of Massachusetts, but at the federal district level as well, where the Veterans had to overcome GLIB's procedural and jurisdictional claims based on the principles of federalism and comity, and the Younger abstention, and Rooker-Feldman doctrines and collateral estoppel. They also had to defend against application of the full faith and credit statute, a contempt action and a permanent state court injunction to win their parade back in 1995. But this was only a prelude to a much larger fight which was yet to come before the United States Supreme Court, where the Veterans confronted and overcame an attempt to moot their case out of the Court. GLIB's legal strategy shifted when they went before the U.S. Supreme Court. There, GLIB argued it had no message of its own, but merely wanted to self identify, a new position which was contrary to what was stated at trial and in various submissions.
This book examines topical issues involving freedom of speech, religious expression and freedom of association, as well as the use of the court's equity powers and the reach of public accommodation laws. Read the U.S. Supreme Court's decision in, John J. Hurley and South Boston Allied War Veterans Council v. Irish American Gay, Lesbian and Bisexual Group of Boston, et. Al., 515 U.S.- 132 L.Ed. 2d 487, 115 S Ct. 2338 (1995). Press here for the full Hurley decision. Headings: top of page.
(1) Whether the state could compel private citizens to include in their traditionally-themed parade, a protected class (gay, lesbian and bisexuals) marching behind a banner proclaiming their sexual orientation. Repeatedly, the state courts held that the state's public accommodation law, prohibiting discrimination in a place of public accommodation, a public street, applied to the Veterans' annual parade which the Veterans viewed as their speech; and
(2) Whether the Veterans' refusal to comply could be prosecuted under a Massachusetts penal statute. The state courts said it could. Headings: top of page.
"Confronted with the state courts' conclusion that the factual characteristics of petitioner's activity placed it within the realm of non-expressive conduct, this Court has a constitutional duty to conduct an independent examination of the record as a whole, without deference to those courts, to assure that their judgment does not constitute a forbidden intrusion on the field of free expression. See, e.g. New York Times Co. v. Sullivan, 376 U.S. 254, 285 pp. 8-10"
The United States Supreme Court, in a rare 9-0 decision, ruled that parades are protected under the First Amendment, and as such, the state could not compel organizers to include groups with messages the organizers disfavored. Justice Souter, writing for the Court, noted, "The state court's application [of the public accommodation law] however, had the effect of declaring the sponsor's speech itself to be the public accommodation."
"Under the free speech guarantees of the Federal Constitution's First Amendment, (1) the law is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government, and (2) disapproval of a private speaker's statement does not legitimize use of the government's power to compel the speaker to alter the message by including one more acceptable to others."
The Court also observed, "Assuming a parade to be large enough and to be a source of public benefits, apart from the parade's expression, that would normally justify application to the parade of a mandated access provision, a group can nonetheless, consistent with the free speech guarantee of the First Amendment, be refused admission to the parade as an expressive contingent with its own message just as readily as a private club can exclude an applicant whose manifest views are at odds with a position taken by the club's existing members."
Held: "The state courts' application of the Massachusetts public accommodation law to require that citizens who organize a parade include among marchers a group imparting a message that the organizers do not wish to convey violates the First Amendment." Headings: top of page.
Although the American Civil Liberties Union eventually entered the case at the Supreme Court level, it was forced to file its amicus without the Veterans' consent. Incredibly, the ACLU briefed in favor of neither party, arguing (a) that private parades are inherently expressive and are entitled to full First Amendment protection, but that (b) in this case the entire controversy should be sent back to state court for further examination of the state action argument, an argument fully developed at the lower court level, and one which, having been examined and dismissed, was not appealed. [The Veterans on the other hand did appeal the ruling of no state action against them to the state Supreme Judicial Court, but the state SJC dismissed that argument, upholding the trial court's finding that there was no violation since the parade was not a protected First Amendment activity in the first place.]
Conversely, the state action argument, raised repeatedly by GLIB, was repeatedly refuted at trial. To this day, defenders of GLIB's failed state action claim contend the parade was a city/private venture. Not only was there no credible evidence of this at trial, but GLIB and its attorneys had every opportunity to exploit this allegation at trial, but didn't, and for good reason. The relationship did not exist.
The ACLU has a well-developed home page, including, as of this writing, its curious position on this case. If you would like to review this page, press here and follow the links to Hurley. Headings: top of page.
For three years Attorney Darling represented the Allied War Veterans Council of South Boston without fee, against a well-financed political force, which saw in this case, an opportunity to advance an activist agenda at the expense of our treasured free speech rights. When Attorney Darling filed a motion in state court to proceed in forma pauperis GLIB opposed, and the court refused his request. When Darling pleaded with the court to lift the awarding of attorneys' fees against his clients, Judge Flannery, in a mean-spirited rebuke in open court invited Darling to pay the attorneys' fees himself. Darling was near broke because of this case and could not fulfill such an offer. What was most troubling was the fact that GLIB did not pay attorneys' fees itself. GLIB was always represented by law firms at no cost to GLIB members.
Attorney Darling stood by his clients when the courts refused to even consider the possibility that the Veterans may be engaged in a First Amendment activity. To his credit, he dug his heels in and fought tenaciously when it became evident that the state courts, working in tandem with the state bureaucracy and a string of pro-bono, politically correct law firms, including the state chapter of the ACLU, intended to railroad his clients, trample the First Amendment, and silence opposition under the cover of the raw exercise of judicial power. Chester Darling is, in the truest sense, an American Hero, who confronted the political zeitgeist against him, and through his brave, unselfish action, fought to preserve the First Amendment for all Americans. It is through his efforts, not those of the ACLU, that the First Amendment right of free speech was not trampled in this case.
This book tells the story of that legal fight, and of the courage of one attorney who put it all on the line for his clients and the First Amendment. Headings: top of page.
"[T]he Supreme Court collaborated in creating a fictional parade so that it could issue an easy First Amendment decision... How much better it would have been for the Constitution, and for this community, if the Court had told the truth."
So concluded Attorney Gretchen Van Ness, who clerked for the United States District Court for Massachusetts and the United States Court of Appeals for the First Circuit. Writing in the Spring edition of the New England Law Review, in an article: Parades and Prejudice: The Incredible True Story of Boston's St. Patrick's Day Parade and the United States Supreme Court, Vol. 30, No.3, p625, Van Ness, a cooperating attorney with the Gay & Lesbian Advocates and Defenders (GLAD) could barely conceal her contempt for the Supreme Court's unanimous decision. Her attack on the integrity of the court, her parody of the subtitle of our book: (The incredible inside story behind the theft of the St. Patrick's Day Parade) as well as her numerous gross misrepresentations of facts, might be viewed by some as an embarrassment to New England School of Law's editorial board, as well as to the Federal District and Circuit Court of Appeals which previously employed her.
For example, she writes: "At no point did the Veterans Council say that it sought to exclude GLIB from the Parade because the group espoused a message that conflicted with the message that the Veterans Council sought to convey in the Parade." Van Ness, as usual, is selective in her recollection of the facts. Even Judge Zobel, the first judge to hear the case, summed up the dispute this way: "Defendants want a 'traditional parade' expressing their 'values'. They regard Plaintiff's views as antithetical to those values and to the ethnic-religious component of the parade. Thus, allowing Plaintiff's to participate in the parade would impermissibly conflict with Defendants' right of expression under the federal and Massachusetts Constitutions."
Van Ness' law review article is so fundamentally flawed, so filled with errors of fact and so blatantly misleading that it cannot be taken as a serious work on the subject. Indeed, one wonders what infectious political agenda possibly could have driven the law school to even print it. Headings: top of page.
Headings: top of page.