418 Mass. 238 (1994), Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston

Citation:418 Mass. 238, 636 N.E.2d 1293
Party Name:IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON & others [ 1] v. CITY OF BOSTON & others. [ 2]
Case Date:July 11, 1994
Court:Supreme Judicial Court of Massachusetts
 
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418 Mass. 238 (1994)

636 N.E.2d 1293

IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON & others 1

v.

CITY OF BOSTON & others. 2

Supreme Judicial Court of Massachusetts, Suffolk.

July 11, 1994

Argued March 10, 1994.

Chester Darling, Boston, for John J. Hurley & another.

Philip M. Cronin, Boston (Mary L. Bonauto, Portland, ME, with him), for plaintiffs. [636 N.E.2d 1294] Claudia Billings McKelway, Deputy Corp. Counsel, (Krisna M. Basu, Asst. Corp. Counsel, with her), for the city of Boston.

Andrew J. McCauley, New York City, for Catholic League for Religious and Civil Rights, amicus curiae, submitted a brief.

George P. Napolitano, Special Asst. Atty. Gen., & Elizabeth S. Hendler, Boston, for Massachusetts Com'n Against Discrimination, amicus curiae, submitted a brief.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

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LIACOS, Chief Justice.

The defendants, South Boston Allied War Veterans Council (council) 3 and John J. "Wacko" Hurley (Hurley), appeal from a judgment of the Superior Court dated December 24, 1993, which, among other things, granted permanent injunctive relief to the plaintiffs. 4 , 5 On

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appeal, the defendants raise a myriad of issues: (1) whether the annual St. Patrick's Day-Evacuation Day Parade sponsored by the council and held in the South Boston section of Boston is speech protected by the First and Fourteenth Amendments to the United States Constitution and art. 1, as amended, art. 12, art. 16, as amended, and art. 19 of the Massachusetts Declaration of Rights; (2) whether the trial judge committed error when he "examined, evaluated and passed judgment on the content of the parade and deemed that content unworthy of constitutional protection, thereby enabling the court to apply statutory law to speech, in violation of the [council's] Federal and State [c]onstitutional rights of freedom of speech, expression, exercise of religion, assembly, and due process and equal protection of the laws, as enumerated in the First and Fourteenth Amendments [to] the United States Constitution, and arts. 1, 12, 16 and 19"; (3) whether a parade is a place of public accommodation, resort, or amusement under the public accommodation discrimination law, G.L. c. 272, §§ 92A, 98; (4) whether the judgment of the Superior Court constituted a "prior restraint of the [council's] Federal and State constitutional rights of freedom of speech, expression, exercise of religion, assembly, and due process and equal protection of the laws as enumerated in the First and Fourteenth Amendments ... and arts. 1, 12, 16 and 19"; (5) whether the issuance of a parade permit by operation of law converts a place of public accommodation to the exclusive use of the private permit holder; (6) whether the judgment of the Superior Court "should be reversed as to the liability of the City of Boston to the Veterans as the findings of fact by the trial judge were clearly

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against the weight of the uncontroverted evidence"; (7) whether "the City of Boston, acting under color of law, [did] threaten, intimidate, coerce, deprive and interfere with the [council's] Federal and State rights of freedom of speech, expression, exercise of religion, assembly, and due process and equal protection of the laws as enumerated in the First and Fourteenth Amendments ... and arts. 1, 12, 16 and 19 ... and in violation of the Massachusetts Civil Rights Act, G.L. c. 12, [§§ 11H, 11I], 42 U.S.C. § 1983, City of Boston Traffic Rules and Regulations Art. VIII (as amended through January 2, 1988); and City of Boston Ordinance of 1984, c. 16 (as amended by [c.] 17 and [c.] 18)"; (8) whether G.L. c. 272, §§ 92A [636 N.E.2d 1295] and 98, are unconstitutionally overbroad and vague; and (9) whether the judgment of the Superior Court should be reversed because the "finding [of the trial judge] of discrimination [perpetrated by the council] was faulty in its reasoning, unsupported by the record, and against the weight of the evidence." We discuss those issues we deem relevant to this appeal.

We state the facts found by the trial judge. 6 In January, 1992, several individuals, including the plaintiff Barbra Kay, formed the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB). GLIB is a social organization consisting of individuals who are homosexual or bisexual and their supporters. GLIB was formed to march in the annual St. Patrick's Day-Evacuation Day Parade 7 held in South Boston. GLIB's purposes are to express its members' pride in their dual identities as Irish or Irish-American persons who are also homosexual or bisexual, to demonstrate to the Irish-American community and to the gay, lesbian, and bisexual

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community the diversity within those respective communities, and to show support for the Irish-American homosexual and bisexual men and women in New York City who were seeking to participate in that city's St. Patrick's Day Parade.

GLIB submitted an application to the council to march in the 1992 parade. The council denied the application, citing "safety reasons and insufficient information regarding [the] social club." Ultimately, GLIB was allowed to march in the 1992 parade under court order, with several restrictions placed on its participation that were not applied to other participants in the parade.

The following year, GLIB sought permission to participate in the 1993 parade. The council refused to admit the group, asserting that the "decision to exclude groups with sexual themes merely formalized that the Parade expresses traditional religious and social values." The judge found that excluding groups with sexual themes was itself a form of discrimination in violation of the public accommodation law's prohibition against discrimination based on sexual orientation.

At trial, Hurley "equivocated about his reasons for excluding GLIB" but ultimately testified that he would never allow them to march in the parade. 8 The judge concluded that the inconsistent and changing explanations for excluding GLIB demonstrated the "pretextual nature" of those explanations. The judge found that GLIB was excluded from the parade because of the sexual orientation of its members. Based on our review of the record before us, we cannot say that this finding of the judge was clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 384, 607 N.E.2d 1035 (1993).

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The judge concluded also that the parade constitutes a public accommodation under G.L. c. 272, § 92A (quoted, infra at 1297). In arriving at that conclusion, the judge relied on the lack of selectivity exerted by the veterans over the parade's participants and sponsors and the parade's historical roots. The judge found that "[d]uring the first half of this century, the South Boston Citizens Association and the City of Boston organized the various Evacuation Day activities. In 1901, the City celebrated the 125th anniversary of Evacuation Day by a parade, artillery salute, concert, and fireworks display, among other events. In 1947 Mayor James Michael Curley granted the [council] authority to organize and conduct [636 N.E.2d 1296] the Parade. Since that time, the City has annually granted the [council] a parade permit. No other applicant has applied for the permit.

"Over the years, the Parade has featured as many as 20,000 participants and as many as 1,000,000 spectators. In 1992, the Parade featured about 10,000 participants and 750,000 spectators. The 1993 Parade, postponed due to inclement weather, had fewer than 10,000 participants, about 400,000 spectators, and was aired live by Boston's community access cable television channel. The Parade is one of the six largest parades held in Boston annually, and the largest New England event for Irish-Americans, their friends, and well-wishers."

The Parade has followed substantially the same route in South Boston for at least forty-seven years, "providing entertainment, amusement, and recreation to participants and spectators alike." The council has demonstrated a lack of selectivity in admitting participants and sponsors. 9 The judge

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characterized the parade by noting that "the interests and viewpoints represented are truly catholic: commercial ..., religious ..., political ..., eleemosynary ..., patriotic ..., moral ..., theatrical ..., athletic ..., public service ..., trade union ..., and so on. Indeed, since 1947 the only groups that have been excluded from the Parade besides GLIB have been the Ku Klux Klan and ROAR (Restore our Alienated Rights). Neither of these groups, however, is protected by M.G.L. c. 272, §§ 92A and 98." 10

Additionally, the judge found that there are no written procedures, criteria, or standards for selecting participants or sponsors of the parade. Participants from previous parades are sent an application for the upcoming parade. Those who have not previously participated and who inquire about participation in the upcoming parade are sent applications. Some groups receive reimbursement for their parade-related expenses. The council votes on applications for participation in "batches," and the council generally does not inquire into the message or views of each applicant. 11

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Certain groups or individuals have been allowed to participate in the parade even if they have not submitted an application prior to the parade. In 1993, members of the Boston Bruins hockey club merely showed up at the start of the parade and were permitted to march, without having filed an application. Others, such as the Massachusetts Water Pollution Control Association and several mayoral candidates, gained entrance by making a contribution to the parade without filling out an application. The judge concluded [636 N.E.2d 1297] that the...

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