NY CTY. ANCIENT ORDER OF HIBERNIANS v. Dinkins

• Decision Date: 26 February 1993
• Docket Number: No. 93 Civ. 0281 (KTD).,93 Civ. 0281 (KTD).
• Citation: 814 F. Supp. 358
• Parties: NEW YORK COUNTY BOARD OF ANCIENT ORDER OF HIBERNIANS, Plaintiff, v. David N. DINKINS, individually and in his Capacity as Mayor of New York City; The City of New York, The Police Department of the City of New York, Raymond Kelly, as Police Commissioner of the City of New York, and St. Patrick's Day Parade Committee, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

814 F. Supp. 358

NEW YORK COUNTY BOARD OF ANCIENT ORDER OF HIBERNIANS, Plaintiff, v. David N. DINKINS, individually and in his Capacity as Mayor of New York City; The City of New York, The Police Department of the City of New York, Raymond Kelly, as Police Commissioner of the City of New York, and St. Patrick's Day Parade Committee, Inc., Defendants.

No. 93 Civ. 0281 (KTD).

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

February 26, 1993.

Gleason & Mathews, New York City (Ernest L. Mathews, Jr., Maura R. Cahill, Paul H. Hugel, of counsel), for plaintiff.

O. Peter Sherwood, Corp. Counsel of the City of New York, New York City (Florence A. Hutner, Lorna B. Goodman, Asst. Corp. Counsels, of counsel), for defendants David N. Dinkins, The City of New York, The Police Dept. of the City of New York, and Raymond Kelly.

Gilroy Downes Horowitz & Goldstein, New York City (Lawrence C. Downes, of counsel), for defendant St. Patrick's Day Parade Committee, Inc.

Shearman & Sterling, New York City (R. Paul Wickes, Clare O'Brien, of counsel), for intervenors Irish Lesbian and Gay Organization.

New York Civil Liberties Union Foundation, New York City (Norman Siegel, Arthur N. Eisenberg, of counsel), for amicus curiae.

Burlingham Underwood, New York City (John G. Ingram, Philip A. Nemecek, of counsel), for amicus curiae St. Patrick's Society of Brooklyn, St. Patrick's Society of the Borough of Queens, United Irish Counties Ass'n of New York, Inc. and The Grand Council of United Emerald Societies, Inc.

Wilmer, Cutler & Pickering, Washington, DC (Thomas Clark, Gary Born, of counsel), for amicus curiae Religious Coalition and Parade Coalition.

Putney, Twombly, Hall & Hirson, New York City (Norman Fassler, of counsel), for amicus curiae Religious Coalition and Parade Coalition.

Center for Constitutional Rights, New York City (Joan P. Gibbs, Suzanne L. Shende, of counsel), for amicus curiae.

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

This is one of those unusual cases where the issue presented by all counsel has remained constant and clear. It is the facts surrounding the issue that seem to be in a total state of flux.

Broadly stated, the issue is whether the City of New York ("City") can compel the Ancient Order of Hibernians ("AOH")¹, a private and long-standing sponsor of New York's St. Patrick's Day Parade, to alter the message that it wishes to convey in the Parade by requiring it to include, in the Parade and under their own banner, the Irish Lesbian and Gay Organization ("ILGO"), an organization whose tenets are allegedly inconsistent with the message of the Parade's sponsors.

At my request, counsel for the parties, prepared and filed an agreed statement of uncontested facts after I held a conference on Tuesday, February 2, 1993. I have adopted as many of these agreed upon facts as possible. I scheduled argument on Monday, February 22, 1993, and was apprised that certain facts had changed. At that hearing I advised the parties not to change the facts again. No matter what protestations of good will the parties offered on that date, the facts have changed once again.

Indeed, one of the most difficult tasks in this matter is to get a handle on the facts and the real position of the parties. At times it seemed that the attorneys were acting as navigators attempting to get a fix on their location while aboard a melting ice flow in the midst of a tempest. Counsel for the City, for example, argued at one point, that the City would be willing to permit, without conditions, the AOH to march in a parade on some city street other than Fifth Avenue on March 17th at 11:00 a.m. See City Defendants' Memorandum of Law In Opposition to Plaintiff's Motion for Summary Judgment and In Support of City Defendants' Cross-Motion for Summary Judgment ("City's Mem.") at 13; Hutner Affidavit ¶ 4 and Exh. A, dated Feb. 11, 1993. The City's latest position, however, is that the City would deny the AOH the Parade permit unless AOH "includes the Irish Lesbian and Gay Organization in the parade under its own banner." See Letter to this court from Corporation Counsel, dated Feb. 17, 1993.

At one point, over a year ago, the AOH argued to Judge Pierre Leval of this court that there was a waiting list of organizations who wanted to participate in the St. Patrick's Day Parade and that ILGO would have to wait its turn to be considered for inclusion in the Parade. Judge Leval denied relief to ILGO for various reasons including, in part, because he believed the AOH had a valid waiting list and ILGO could not jump in front of other organization applicants who precede it on the list. ILGO v. N.Y. State Board of Ancient Order of Hibernians, 788 F.Supp. 172, 179 (S.D.N.Y.1992). Yet, it may well be that the "waiting list" was merely a sham and an "attempt to diffuse the situation," because the AOH has now stated that under no circumstances would they allow ILGO to march. Transcript, Argument held February 22, 1993 ("Tr.") at 7-8.

Within the last two weeks, ILGO protested to the state court that the dispute as presented there was moot. Yet, in argument to this court on February 22, 1993, ILGO took the position, without any change of facts, that this court should abstain in deference to the state court. Tr. at 59.

STATEMENT OF FACTS

The St. Patrick's Day Parade has been a fixture of the New York City scene for well over two hundred years. The first New York St. Patrick's Day Parade took place in 1762. The AOH has sponsored the Parade virtually every year out of the last one-hundred and fifty-three years, and in the years that the AOH has not conducted the Parade, an affiliated Hibernian group has done so. For over seventy years, the Parade has taken place on Fifth Avenue starting at 11:00 a.m. on the day of the Roman Catholic liturgical celebration of the feast day of St. Patrick. This day generally is March 17th, but the liturgical celebration is changed when March 17th falls on a Sunday.

The AOH is an organization comprised of Roman Catholic men of Irish descent who comply with the Roman Catholic rite's requirement that every adult must receive communion at least once during the Easter Season. The AOH has apparently set out other strictly religious requirements for membership. Every year, under the guidance of the AOH, each contingent that marches in the St. Patrick's Day Parade selects two delegates to be part of the "St. Patrick's Day Parade and Celebration Committee" ("Parade Committee"). This Parade Committee is responsible for taking care of the myriad details and arrangements inherent in running the Parade.

The AOH and the Parade Committee privately finance the Parade exclusively by means of private donations. The only public assistance received by AOH is for the police and sanitation services, which the City affords to every public gathering in the City.

The AOH, the Grand Marshal of the Parade, and members of the Parade Committee start the St. Patrick's day celebration by attending mass at St. Patrick's Cathedral on Fifth Avenue. The Roman Catholic Archbishop of New York reviews the Parade from the steps of the Cathedral. Various units in the Parade carry banners depicting St. Patrick and other saints of the Roman Catholic Church. Notwithstanding this connection to the Roman Catholic Church, it is abundantly clear that some of the marchers participating in the St. Patrick's Day Parade are neither members of the AOH nor members of the Roman Catholic Church. Indeed, anyone who has watched the St. Patrick's Day Parade can attest to the fact that not everyone in the Parade is Irish, although at times it has been said that on St. Patrick's day, everyone in New York is Irish. The Parade marchers generally number in the vicinity of 150,000, with between one and two million on-lookers. The New York St. Patrick's Day Parade is carried by at least one local television station and quite often parts of it are shown on national television.

The St. Patrick's Day Parade is billed as the largest annual civilian Parade in the world. The Parade celebrates, inter alia, freedom and Irish culture and heritage. Traditionally, elected officials have marched in the Parade regardless of their religious or political affiliation or of their position on any issue. Joint Statement of Uncontested Facts ("Jt.Stmt.") at ¶ 13.

The AOH has applied for and received a Parade permit from the New York City Police Department ("NYPD") authorizing it to conduct the St. Patrick's Day Parade on Fifth Avenue for more than seventy years. Jt. Stmt. at ¶ 9. The NYPD maintains a list of organizations that traditionally conduct annual Parades in the city and has, in the past, had the practice of granting permits to the organizations on that list. The AOH has been the organization on that list which conducts the St. Patrick's Day Parade. Jt. Stmt. at ¶ 10.

The AOH has adopted rules for the Parade to prevent any group or person from using the Parade as a vehicle or forum to pursue any political, social or commercial agenda inconsistent with the message, values and viewpoint of the AOH², or whose purposes, principles or agenda are inconsistent with the teachings of the Roman Catholic Church. Jt. Stmt. at ¶ 12. It is the position of the AOH that the determination of whether a particular purpose, principle or agenda is inconsistent with the teachings of the Roman Catholic Church rests within the discretion of the AOH.

In October, 1990, ILGO requested that the Parade Committee allow it to march under its own banner as an affiliated unit in the 1991 Parade. The Parade Committee denied ILGO's request for various reasons. AOH now maintains that the denial of ILGO's request was occasioned by the AOH's "policy against the inclusion of groups advocating messages contrary to the parade sponsor's message and the Catholic Faith." Jt.Stmt. at ¶ 14.

Thereafter, the City administration urged the AOH to admit ILGO to the 1991 Parade. When AOH refused to do so, a compromise was struck...