Irish Lesbian & Gay Org. v. ANCIENT O. OF HIBERNIANS

• Decision Date: 16 March 1992
• Docket Number: No. 92 Civ. 1498 (PNL).,92 Civ. 1498 (PNL).
• Citation: 788 F. Supp. 172
• Parties: IRISH LESBIAN AND GAY ORGANIZATION, Plaintiff, v. NEW YORK STATE BOARD OF ANCIENT ORDER OF HIBERNIANS, New York County Board of Ancient Order of Hibernians, and the New York City Police Department, Defendants.
• Court: U.S. District Court — Southern District of New York

788 F. Supp. 172

IRISH LESBIAN AND GAY ORGANIZATION, Plaintiff, v. NEW YORK STATE BOARD OF ANCIENT ORDER OF HIBERNIANS, New York County Board of Ancient Order of Hibernians, and the New York City Police Department, Defendants.

No. 92 Civ. 1498 (PNL).

United States District Court, S.D. New York.

March 16, 1992.

Shearman & Sterling (R. Paul Wickes, Clare O'Brien, of counsel), New York City, for plaintiff.

Thomas W. Gleason (Ernest L. Mathews, Jr., Kevin Marrinan, Harvey S. Mars, of counsel), New York City, for defendant New York County Bd. of Ancient Order of Hibernians.

McKernan & Gatins (Patrick C. Gatins, Kevin P. McKernan, of counsel), Staten Island, N.Y., for defendant New York State Bd. of Ancient Order of Hibernians.

O. Peter Sherwood, Corp. Counsel of the City of New York (Florence A. Hutner, Asst. Corp. Counsel, of counsel), New York City, for defendant New York City Police Dept.

New York Civ. Liberties Union Foundation (Norman Siegel, Arthur Eisenberg, of counsel), Pollet & Pollet (Michael N. Pollet, Sybil H. Pollet, of counsel) New York City, amicus curiae in Opposition to Plaintiff's Motion for a Preliminary Injunction.

OPINION AND ORDER

LEVAL, District Judge.

This is an action brought by the Irish Lesbian and Gay Organization ("ILGO") against the organizers of New York City's Saint Patrick's Day Parade. ILGO alleges that the New York State and the New York County Boards of the Ancient Order of Hibernians ("AOH") have violated the plaintiff's First Amendment free speech rights under the Constitution by failing to grant ILGO's application to march under its banner as an affiliated unit in the 1992 parade. It is apparently undisputed that the individual members of ILGO are free to march in the parade as guests of any affiliated participating unit. Under such circumstances, however, the parade rules would forbid them from carrying signs or banners, as only very limited categories of signs are permitted in the parade, consisting primarily of the flags of Ireland, the United States, and the banners of the recognized affiliated marching units. ILGO moves for a preliminary injunction ordering the Hibernians to allow ILGO to march in the parade on March 17, 1992, under their banner as an affiliated unit.

The controversy began in October 1990 when ILGO applied to the Parade Committee, appointed by the AOH County Board, for permission to march as an affiliated unit in the 1991 parade. It appears that access to participate in the parade is in most cases granted only to organizations, rather than to individuals, and that organizations which are granted affiliation may then invite individual participants to march in their unit. By letter dated January 25, 1991, ILGO's request was denied. ILGO was advised that there was a waiting list of applicant organizations and that ILGO's application would take its place as a new request at the bottom of the list. The parade is so large and time-consuming that it is difficult to get it completed before dark. For this reason, the organizers limit the number of units permitted to participate. The organizers maintain a waiting list of applications in order of receipt. This waiting list at present includes nearly 60 organizations whose applications date back to December 1987. ILGO is approximately 40th on the list.

Shortly before the parade in 1991, Mayor David N. Dinkins undertook to negotiate a settlement that would provide for ILGO's inclusion in the parade. The Mayor proposed that the parade permit would extend the parade for an hour and that small representative groups from each of the organizations on the waiting list would be included. The Mayor also offered to provide volunteers and funding to help run the parade on this basis. The Parade Committee rejected the Mayor's offer. Eventually a compromise was reached under which the ILGO members were invited to march with Manhattan Division 7 of the A.O.H.

There is controversy over what happened at the 1991 parade. Witnesses for ILGO testified that when the ILGO participants reached the reviewing stand at 5th Avenue and 67th Street, members of the review committee in the grandstand turned their backs in a gesture of insult. Witnesses on behalf of the Hibernians testified that ILGO participants engaged in insulting anti-Catholic and provocative conduct both in front of St. Patrick's Cathedral and in front of the reviewing stand at 67th Street. The Parade Committee received numerous complaints about the conduct of the ILGO members.

In the fall of 1991, ILGO wrote to the Chairman of the Parade Credentials Committee to verify that ILGO's application was still on file. The letter requested information "on the status of our application." ILGO received no reply. On December 4, 1991, ILGO wrote again. No reply was issued. The Mayor once again undertook efforts to secure ILGO's admission to the parade. Discussions were held during December and January.

On January 21, 1992, the Hibernian National and State Boards issued a joint statement asserting that

The organizers of the parade are in full agreement, of one mind of one heart and of one determination ... that no organization or organizations are allowed to use New York City's 231st Annual St. Patrick's Day Parade on March 17, 1992 as a vehicle to publicly insult any person or group watching or reviewing the parade.

The outrageous behavior and conduct of the Irish Lesbian and Gay Organization (ILGO), and its several well known, non-Irish support groups, on Fifth Avenue and particularly in front of St. Patrick's Cathedral and at the Parade Reviewing Stand, during the 1991 Parade, mandated that ILGO not be permitted to participate in the 1992 Parade.

The statement concluded that the Ancient Order of Hibernians "is and has been for the past 156 years, steadfastly committed to one of its main founding purposes: to uphold, defend and protect the Roman Catholic Church, its priests and bishops, its teachings and tenets." A release issued by the Parade Chairman to the Irish Echo stated that "no group that has a position contrary to the teachings of our Catholic faith has a place in our Parade."

On January 23, 1992, the New York City Human Rights Commission issued a complaint against the parade organizers charging violation of the Administrative Code of the City of New York by unlawful discrimination against ILGO on the basis of sexual orientation. ILGO intervened in the proceedings of the Human Rights Commission and a hearing was scheduled. On March 2, 1992, fifteen days before the parade, ILGO filed this action.

On March 10, counsel met with the court and agreed that, in view of the lack of time, the evidence to be offered on this preliminary injunction motion would consist of portions of the transcript taken at the City Human Rights Commission hearing plus whatever affidavits were appended to the parties' moving and opposing papers. Submissions were completed by 6:30 p.m. on Wednesday evening, March 11, and argument was heard by the court at 9:30 a.m. on March 12.

On the afternoon of March 13, 1992, Chief Administrative Law Judge Rosemarie Maldonado issued a Recommended Decision and Order in the City Human Rights Commission Proceeding. Her opinion recommends denial of an order requiring inclusion of ILGO in the St. Patrick's Day Parade on the grounds that such an order would violate the Hibernians' right of free expression.

Standard of Proof

The standard for grant of a preliminary injunction in the Second Circuit requires the applicant to show irreparable harm and either likelihood of success on the merits or a fair question for litigation with the balance of hardships tipping decidedly in favor of the applicant. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). There is, however, strong reason to doubt whether the traditional test for preliminary injunction is properly applied to this case, as that test is designed for circumstances quite different from these. The test envisions an applicant who claims the right to eventual, permanent injunctive relief and asserts that he will suffer irreparable harm if temporary injunctive relief is not given for the interim period before final adjudication becomes available. The test is designed to provide the fairest standard for regulating the interim period prior to final trial and judgment on the merits. For these reasons, if the applicant will suffer irreparable harm in the waiting period (and especially if the harm faced by the applicant prior to the grant of an injunction would markedly exceed the harm that would be suffered by the adversary from the grant of a temporary injunction), the law permits such temporary relief to be granted on a lesser showing than will ultimately be necessary to secure a final injunction.

Two reasons militate against the traditional standard in this case: First, because the lawsuit concerns ILGO's claimed right to march tomorrow before final trial can be held, the grant of a preliminary injunction would not merely govern the holding pattern pending final adjudication; it would award entire victory, at least with respect to the 1992 parade, to ILGO. By the time final trial can be reached, the court's injunctive power will no longer be able to affect whether plaintiff does or does not march in the 1992 St. Patrick's Parade, as it will have passed. Secondly, defendants have made a strong showing that plaintiff is chargeable with laches. It was evident to ILGO last December that defendants were unwilling to admit it to the parade as an affiliated unit. If there was any doubt in December, this became unmistakably clear on January 21, 1992, when defendants issued their joint statement of "one mind, one heart, one determination on a matter of major concern and great importance to all who love New York City's historic landmark St. Patrick's Day Parade." At that point eight weeks remained before the parade. Had ILGO promptly initiated its lawsuit, there would have been...