Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston

Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, Case citation 515 U.S. 557 (1995), is a landmark decision of the Supreme Court of the United States regarding the right to assemble and for groups to determine what message is actually conveyed to the public. Generally, the Court ruled that private organizations, even if they were planning on and had permits for a public demonstration, were permitted to exclude groups if those groups presented a message contrary to the one the organizing group wanted to convey. More specific to the case, however, the Court found that private citizens organizing a public demonstration may not be compelled by the state to include groups who impart a message the organizers do not want to be included in their demonstration, even if such a law had been written with the intent of preventing discrimination.

Background
The city of Boston, Massachusetts had, until 1947, directly sponsored the public celebrations of St. Patrick's Day and Evacuation Day, both on March 17 of that year. After 1947, Mayor James Michael Curley gave authority to the South Boston Allied War Veterans Council, a group of unincorporated private citizens that had been elected from a variety of Boston veterans' groups, to conduct the parade themselves. This arrangement went relatively without incident&mdash;the South Boston Allied War Veterans Council ("Council") being the only other group to ever apply for a parade permit&mdash;until 1992.

In 1992, the Irish-American Gay, Lesbian and Bisexual Group of Boston ("GLIB") requested that it be allowed to march in the parade alongside the usual attendees. GLIB argued that they were not primarily a group aimed at conveying a "gay, lesbian, and bisexual message"; rather, they said they were Irish descendants who happen to be gay, lesbian, and bisexual, and who are proud of both their sexual orientation and their Irish ancestral nationality. The Council refused to allow GLIB to march in the parade. GLIB sought a court order compelling the Council to allow them to march, citing a Massachusetts law that forbade "discrimination or restriction on account of... sexual orientation... relative to the admission of any person to, or treatment in any place of public accommodation, resort or amusement." The court order was granted, and GLIB marched in the parade "uneventfully."

Despite the court order in 1992, the Council again denied GLIB's admission to participating in the parade in 1993. The state trial court found that GLIB's argument was valid, reasoning that the parade had traveled roughly the same route for decades, that it frequently (if not always) accepted involvement and participation from the general public, and that it rarely, if ever, required formal submissions to entry into the parade, sometimes permitting groups to enter the proceedings the day of the event. In essence, GLIB stated that it must be permitted to march in the parade because the Council employed no uniform screening process of other groups that had previously been permitted to march with them. While the Council had prohibited certain groups (such as the Ku Klux Klan) from joining the parade, the trial court believed that these were not significant or germane to the facts presented. In short, the trial court determined that the parade was less a private event and more of an "open recreational event"; thus, the First Amendment to the United States Constitution did not even come into play. Because the statute did not demand that GLIB be allowed in the parade, merely that the Council could not forbid groups based on sexual orientation, the infringement on the Council's right of expressive association was "incidental."

On appeal, the Supreme Judicial Court of Massachusetts affirmed the trial court's decision against the Council. They reasoned that the law was not overbroad and that it did not unduly infringe upon the Council's First Amendment rights. It agreed with the trial court's finding that the parade, as it had been run, was subject to the "public accommodations" law and that it did not seem to have any obvious or specific message to convey. The Supreme Court granted certiori and heard oral arguments on April 25, 1995.

The Decision
Justice David Hackett Souter delivered the unanimous opinion of the court on June 19, 1995. The Court reasoned that, even though the Council did not have a narrow, set message that it was intending to convey, the parade nevertheless constituted a message that the Council had a right to protect. Noting that, while the Council had been fairly lenient in its guidelines for who they chose to allow in their parade, the Court said this did not necessarily mean that the Council waived its right to present its message in a way it saw fit. Of primary concern to the Court was the fact that anyone observing the parade (which regularly gained a large number of spectators) could rationally believe that those involved in the parade were all part of an overriding message the Council was seeking to provide. In this vein, the unanimous Court said that the Council could not statutorily be prohibited from excluding the messages of groups it did not agree with. Effectively, the Council could not be forced to endorse a message against its will.