South Boston Allied War Veterans Council v. Boston, Civ. A. No. 94-11402-MLW.
| Decision Date | 17 January 1995 |
| Docket Number | Civ. A. No. 94-11402-MLW. |
| Citation | 875 F. Supp. 891 |
| Parties | SOUTH BOSTON ALLIED WAR VETERANS COUNCIL, et al., Plaintiffs, v. The CITY OF BOSTON, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
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Chester Darling, Boston, MA, for plaintiffs.
John J. Hurley, pro se, and for the members of the association.
Susan M. Weise, City of Boston Law Dept., Claudia B. McKelway, Davis, Malm & D'Agostine, P.C., Boston, MA, for defendants.
Philip M. Cronin, Elsie B. Kappler, Peabody & Arnold, John Ward, Zalkind, Rodriquez, Lunt & Duncan, Mary L. Bonauto, Boston, MA, for G.L.I.B.
In July 1994, the South Boston Allied War Veterans Council (the "Veterans"), which has traditionally sponsored the annual St. Patrick's Day Parade in Boston (the "Parade"), instituted this action against the City of Boston (the "City") and its Mayor. The Veterans request a declaratory judgment and injunction to compel the City to issue the Veterans a permit for a Parade to be held on March 19, 1995, without the special condition that the Veterans allow the Irish-American Gay, Lesbian and Bisexual Group of Boston ("GLIB") to participate in the Parade. In November, 1994, GLIB agreed to the City's motion that it be joined as a necessary party and it became a defendant.
In addition to incorporating the Veterans' usual themes of honoring St. Patrick, and celebrating the traditional Irish family and family values as the Veterans define them, the 1995 Parade is being planned to protest the decisions of the courts of the Commonwealth of Massachusetts that compelled the inclusion of GLIB in prior Parades, thus prompting the Veterans to cancel the 1994 Parade. On March 20, 1994, the date for which the cancelled Parade had been scheduled, a motorcade of over 800 vehicles travelled the Parade route, displaying black flags, to protest those decisions. In order to register the Veterans' dissent and to honor those who protested last year, the 1995 Parade will begin with a motorcade of vehicles exhibiting black flags, Parade officials will wear black armbands, rather than the traditional green attire, and each of the several divisions in the Parade will be led by a black flag.
Neither the City nor GLIB claim, and the court does not find, that the Veterans' planned protest is merely a pretext to invoke the jurisdiction of the federal courts and evade the permanent injunction, issued by the Superior Court of the Commonwealth of Massachusetts, which prevents the Veterans from excluding GLIB from the annual Parade based on its members' sexual orientation. Rather, after trial, this court has found that the Veterans' protest is a sincere and significant part of the planned 1995 Parade.
The decisions of the courts of the Commonwealth which resulted in the issuance of the injunction were based on their finding that the 1993 Parade had no discernible expressive purpose and was, therefore, a public accommodation subject to the Massachusetts anti-discrimination law, rather than conduct protected by the First Amendment. Both the Superior Court and the Supreme Judicial Court, however, expressly recognized that the relevant facts could change materially and a future Parade might be entitled to constitutional protection.
The Veterans exercised their right to initiate this action in federal court. If either the City or GLIB had moved to reopen the Superior Court case to seek a ruling that its injunction should operate to bar GLIB's exclusion from the 1995 Parade, this court would have abstained, as it did in 1993, and allowed the courts of the Commonwealth to decide the issues presented in this case. Neither defendant chose to do so. Indeed, in August 1994, GLIB declined a virtual invitation from the Superior Court to seek relief in that forum. Because there is not an ongoing state proceeding which a decision by this court will disrupt, and because the Veterans are now entitled to a ruling from some court on the merits of some of their constitutional claims concerning the 1995 Parade, there is not a proper basis for this court to abstain from deciding this case.
On January 6, 1994, the United States Supreme Court granted the Veterans' request to review the decision of the Supreme Judicial Court which held that the 1993 Parade was a public accommodation, rather than an exercise of the Veterans' First Amendment rights, and prohibited the exclusion of GLIB. The Supreme Court's action, however, has not relieved this court of the responsibility of deciding the instant case. The protest theme makes the 1995 Parade materially different than the 1993 Parade with regard to the Veterans' rights to associate for expressive purposes and to free speech. Thus, the Veterans could prevail on those claims with regard to the 1995 Parade, but not with regard to the 1993 Parade. Furthermore, the Supreme Court will not hear, let alone decide, the case concerning the 1993 Parade before March 19, 1995. If the Veterans have a First Amendment right to exclude GLIB from the 1995 Parade, the Veterans will be irreparably harmed if that right is not recognized and respected in time for the 1995 Parade to proceed.
Accordingly, the court has considered the issues presented by this case. The City has correctly contended that no controlling facts have changed since the Supreme Judicial Court's decision with regard to the alleged violation of the Veterans' right not to be compelled to express or foster a view that they find morally objectionable. Therefore, collateral estoppel operates and this district court does not have the power to decide that claim ?€” on which the Veterans' counterparts prevailed in the litigation concerning the St. Patrick's Day Parade in New York City. The Supreme Court alone has the authority to address the Veterans' forced speech claim.
The sincere and significant protest which will be part of the 1995 Parade, however, gives the 1995 Parade the expressive purpose the courts of the Commonwealth previously found lacking and is, therefore, a new controlling fact concerning the Veterans' First Amendment rights to associate for expressive purposes and to free speech. Thus, collateral estoppel does not bar consideration of whether those rights would be violated by the compelled inclusion of GLIB in the 1995 Parade.
For the reasons described in detail in ? IV.C of this Memorandum, conditioning the issuance of a permit for the 1995 Parade on the inclusion of GLIB would violate the Veterans' right to associate for expressive purposes; it is, therefore, not necessary, or on the present record appropriate, to decide whether their right to free speech is also infringed. The 1995 Parade will protest the decisions of the courts of the Commonwealth, which are matters of public concern. Speech addressing such matters is at the core of expression that the First Amendment is intended to protect. If GLIB's inclusion in the 1995 Parade were compelled, the Veterans' protest would be confused and muted; indeed, the Veterans' protest would be silenced because they would again cancel the Parade.
The right to associate for expressive purposes is important, but not absolute. Therefore, as prescribed by the Supreme Court, this court has also considered the degree to which the compelling public interest in combating discrimination based on sexual orientation would be served by requiring GLIB's inclusion in the 1995 Parade.
In contrast to the cases decided by the Supreme Court, this matter does not involve the exclusion of members of GLIB from equal access to publicly available goods or services, or from opportunities for commercial success or professional advancement. Rather, exclusion from the 1995 Parade would deprive members of GLIB of an opportunity to proclaim that they are men and women who are Irish as well as gay, lesbian, or bisexual. There are, however, alternatives available to GLIB to accomplish this objective. The evidence does not indicate that they could not march in other St. Patrick's Day parades throughout Massachusetts. In addition, another St. Patrick's Day event could be organized in Boston. In New York City, after the exclusion of a gay and lesbian group from the 1992 St. Patrick's Day parade was upheld by the federal court, that group held its own event, which attracted virtually all of New York City's elected officials.
The court recognizes, and regrets, that exclusion from the 1995 Parade will be personally painful to members of GLIB. This injury, however, is not sufficient to trump the Veterans' exercise of their First Amendment rights to associate in order to engage in symbolic speech. Speech found by the courts to be protected by the First Amendment is usually offensive to many who must endure it. Inoffensive speech rarely generates controversies requiring judicial intervention. The First Amendment has been held to protect the rights of protesters to burn the American flag and of Nazis to march through a community of Jewish Holocaust survivors. It also protects the right of the Veterans to protest the decisions of the courts of the Commonwealth, and to exclude GLIB as part of that protest.
As this case is, in meaningful measure, about messages, it is appropriate for this court to explicate certain messages which should not be received as a result of this decision. This decision should not be interpreted as a judicial endorsement of the Veterans' protest or of their decision to exclude GLIB from the 1995 Parade. It is axiomatic that the First Amendment protects speech without regard to the truth or social utility of the ideas expressed. Courts in our democracy are not empowered to assess the validity or value of particular speakers or speech. We depend on the competition of ideas and the ultimate wisdom of a free people for those judgments.
This decision also should not be construed as a suggestion that the gay, lesbian, and bisexual men...
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