Parades and Prejudice: The Incredible True Story of Boston's St. Patrick's Day Parade and the United States Supreme Court

Gretchen Van Ness^*

  Introduction

On June 19, 1995, in the case of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,⁽¹⁾ the United States Supreme Court handed down this unremarkable ruling: under the First Amendment, the state may not require private citizens who organize a parade to include in that parade a group imparting a message the organizers do not wish to convey.⁽²⁾ The Court's unanimous pronouncement, presented in fewer than twelve pages of text,⁽³⁾ sidestepped the most compelling issues raised by the case⁽⁴⁾ and brought to an end a historic, even epic, three-year civil rights struggle that had occupied the attention of numerous courts of the Commonwealth of Massachusetts,⁽⁵⁾ the Massachusetts Commission Against Discrimination (MCAD),⁽⁶⁾ the United States District Court for the District of Massachusetts,⁽⁷⁾ and, of course, the court of public opinion.⁽⁸⁾

In the course of over three years of litigation, two different stories were told about this Evacuation Day/St. Patrick's Day Parade (Parade). The state court decisions tell one story,⁽⁹⁾ about an annual civic celebration, open to the public generally, that fell within the reach of the Massachusetts public accommodations law.⁽¹⁰⁾ Unwilling to give effect to the state's anti-discrimination law, however, the United States Supreme Court decision tells a different story,⁽¹¹⁾ about a private event and private actors fighting off gay extremists and government-imposed speech. What is the truth about this Parade? Perhaps it no longer matters, as the Supreme Court has spoken, and its words now tell the official history of this Parade.

The parade upon which the Supreme Court based its decision is not the parade in which my clients participated,⁽¹²⁾ nor is it the parade that served as New England's premiere celebration of Evacuation Day⁽¹³⁾ and St. Patrick's Day for over a century.⁽¹⁴⁾ I agreed to write this Article in order to ensure that this other story, and the extraordinary courage of those Irish-American Gay, Lesbian & Bisexual Group of Boston (GLIB) members who marched in the Parade in 1992 and 1993 will not be forgotten.

This Article examines Boston's unique St. Patrick's Day celebration and GLIB's historic efforts to take part in that celebration, and it makes the modest suggestion that prohibiting discrimination in public celebrations such as this Parade, does no violence to the First Amendment⁽¹⁵⁾ and, in fact, enhances both the constitutional principles at issue and our nation's understanding of and commitment to ending discrimination.⁽¹⁶⁾

  The Legal Argument

While the Supreme Court chose to cast this case as a straightforward First Amendment dispute,⁽¹⁷⁾ it was tried in the state courts primarily as a public accommodations case.⁽¹⁸⁾ The plaintiffs were the Irish-American Gay, Lesbian & Bisexual Group of Boston (GLIB) and three individual GLIB members.⁽¹⁹⁾ The defendants were Parade organizers John J. "Wacko" Hurley, the South Boston Allied War Veterans Council (Veterans or Veterans Council), the City of Boston, and then Boston Mayor Raymond A. Flynn.⁽²⁰⁾ In its amended complaint, GLIB charged that the Evacuation Day/St. Patrick's Day Parade was an open recreational event, taking place on the public streets and boardwalks of Boston,⁽²¹⁾ and that the defendants had discriminated against GLIB in violation of the public accommodations law and the First Amendment by excluding it from this public event.⁽²²⁾ The Veterans Council countered by asserting that the Parade was a private event, and therefore protected by the First Amendment.⁽²³⁾ The City of Boston argued that it was simply the permitting authority and had not aided and abetted the Veterans Council's discrimination against GLIB, violated GLIB's First Amendment rights, or violated the Veterans Council's First Amendment rights by issuing a Parade permit in 1993 that obligated the Veterans Council to conduct the Parade according to law.⁽²⁴⁾

At the heart of this dispute were two not-so-simple questions: (1) What is the Evacuation Day/St. Patrick's Day Parade, and (2) why was GLIB excluded?⁽²⁵⁾ These were the questions answered by the trial court,⁽²⁶⁾ and in order to understand why the trial court ruled for GLIB and why that ruling was upheld by the SJC,⁽²⁷⁾ it is necessary to look honestly at the Parade--what it was and what it was not--and at the conduct of the parties in this case.⁽²⁸⁾ When the true story is known, it is clear that GLIB prevailed in the state courts not because Massachusetts judges are overly sensitive to "political correctness," as some have charged,⁽²⁹⁾ but because GLIB proved first, that a parade can be, and this Parade in fact was, a place of public accommodation,⁽³⁰⁾ and second, that the only reason it was excluded from this Parade was because of its members' sexual orientation.⁽³¹⁾

  The Event

It is safe to say that before the Hurley litigation began, most residents of Massachusetts had only a vague sense of the significance of Evacuation Day.⁽³²⁾ Massachusetts recognizes several so-called "Suffolk County" holidays, such as Patriots Day⁽³³⁾ (which coincides with the running of the Boston Marathon) and Bunker Hill Day⁽³⁴⁾ (which commemorates the Revolutionary War battle which occurred there). Evacuation Day⁽³⁵⁾ was officially made a holiday in 1938,⁽³⁶⁾ and it marks the first major victory of the Revolutionary War when, on a dark night in March 1776, General George Washington arrayed his troops and artillery on Dorchester Heights in South Boston, overlooking the old Boston Harbor where the British fleet was anchored.⁽³⁷⁾ When the sun rose and the British saw the canons trained down on them, they evacuated the Harbor.⁽³⁸⁾ Not a shot was fired.⁽³⁹⁾ Tellers of the tale say that the password that fateful night on Dorchester Heights was "St. Patrick."⁽⁴⁰⁾

For most of its history, Evacuation Day was celebrated primarily as a commemoration of this military victory.⁽⁴¹⁾ Early Evacuation Day programs show that the Evacuation Day Parade in South Boston was just one of numerous events, including an essay contest for public school children, a paid holiday for City of Boston "nonessential" employees, a wreath-laying ceremony, and fireworks.⁽⁴²⁾ In the twentieth century, as Boston's Irish community ascended to political power, the Parade began to do double duty as the region's premiere celebration of St. Patrick's Day.⁽⁴³⁾ By the time an Irish gay, lesbian and bisexual group sought participation in the Parade, the event had grown into one of the largest celebrations of St. Patrick's Day outside of New York City.⁽⁴⁴⁾ The Parade was still called the "City of Boston Evacuation Day/St. Patrick's Day Parade," however, and its basic structure and organization continued to reflect its military roots.⁽⁴⁵⁾

While Evacuation Day activities once were sponsored, funded, and organized exclusively by the Boston City Council,⁽⁴⁶⁾ in the early half of this century the Boston Citizens Association joined in as a co-sponsor of the celebrations with the City of Boston.⁽⁴⁷⁾ Following World War II, Boston Mayor John Curley wished to honor returning veterans and enlisted the South Boston Allied War Veterans Council as the co-sponsor and co-organizer of the City's celebrations, replacing the Citizens Association.⁽⁴⁸⁾ In the years preceding the litigation, it is undisputed that the City of Boston helped finance the Parade.⁽⁴⁹⁾ Additionally, evidence offered at trial showed that City officials assisted in organizing and administering the Parade.⁽⁵⁰⁾

During their decades of partnership, the Veterans Council and the City of Boston sought to make the Parade a large and entertaining event.⁽⁵¹⁾ Participants came from all over the world⁽⁵²⁾ in order to traverse the historic four and one-half mile Parade route through South Boston.⁽⁵³⁾ The Parade boasted 20,000 participants and one million spectators.⁽⁵⁴⁾ Cable television broadcast the entire event live.⁽⁵⁵⁾

And what did the Parade look like? Although it was organized into "divisions" and "units" and organizers sported titles such as "Chief Marshal" and "Parade Adjutant,"⁽⁵⁶⁾ it was not simply a gathering of veterans and military equipment.⁽⁵⁷⁾ Although it celebrated St. Patrick's Day in addition to Evacuation Day, not just Irish and Irish-Americans joined in the festivities,⁽⁵⁸⁾ and the presence of identifiably Catholic participants was minimal.⁽⁵⁹⁾ Although its route twice traversed the length of South Boston, not just South Boston businesses, schools and citizens comprise its ranks.⁽⁶⁰⁾ Judge Flannery's findings captured the essence of the Parade: "the interests and viewpoints represented are truly catholic: commercial (Budweiser), religious (Southie Baptists), political (Councilor O'Neil), eleemosynary (Leukemia Society), patriotic (Vietnam Veterans), moral (Massachusetts Citizens for Life), theatrical (Joey Clowns), athletic (Boston Bruins), public service (Massport), trade union (AFL-CIO), and so on."⁽⁶¹⁾ Thus the record showed that the Parade organizers welcomed participants of every stripe and that the Parade truly embodied the old axiom that "everyone is Irish on St. Patrick's Day."⁽⁶²⁾

While the identity of participants was one aspect of determining what this Parade was, the other crucial part of the equation was the mechanism for how individuals and groups actually got into the Parade.⁽⁶³⁾ If the Veterans Council and the City, during their decades of partnership, had made discernible choices about who was allowed to participate in the Parade, or if they exercised some measure of selectivity over groups and individuals, this seemingly open event may have in fact been a private affair.⁽⁶⁴⁾

Members of the Veterans Council testified at trial that there were several different ways to become a participant in the Parade.⁽⁶⁵⁾ The 1992 Parade Adjutant, Eugene Vaillancourt, testified that he solicited participants based on suggestions from the City of Boston's Office of Business and Cultural Development⁽⁶⁶⁾ and that he looked through rosters from past Parades and contacted past participants.⁽⁶⁷⁾ Mr. Hurley testified that some participants simply showed up on the day of the Parade and were allowed to participate.⁽⁶⁸⁾ Before this litigation began, no formal "application" as such existed.⁽⁶⁹⁾ In their communications with potential participants, Parade organizers sent a "registration form" and form letter welcoming the group to the Parade.⁽⁷⁰⁾ The Chief Marshal then presented the names of the participants who had returned their registration forms to the Veterans Council, which "approved" the participants en masse.⁽⁷¹⁾ Neither the Veterans Council nor the City had written criteria or an operations manual which established or guided this process.⁽⁷²⁾

The core organizing principle of the Parade appeared to be that everyone was welcome, and the more participants, the better.⁽⁷³⁾

  The Statute

While the Evacuation Day Parade was evolving into its late-twentieth century form,⁽⁷⁴⁾ so was the Massachusetts public accommodations law.⁽⁷⁵⁾ First enacted in 1865,⁽⁷⁶⁾ and thus pre-dating the adoption of the 14th Amendment to the United States Constitution,⁽⁷⁷⁾ the Massachusetts public accommodations statute was one of the nation's first attempts to combat racial discrimination.⁽⁷⁸⁾ The original language was straightforward: "No distinction, discrimination or restriction on account of color or race shall be lawful in any licensed inn, in any public place of amusement, public conveyance or public meeting in this commonwealth."⁽⁷⁹⁾

In the years since 1865, the statute has been amended numerous times.⁽⁸⁰⁾ Several amendments either expanded the definition of "place of public accommodation, resort or amusement,"⁽⁸¹⁾ increased the penalties for impermissible discrimination in such places,⁽⁸²⁾ or expanded the types of prohibited discrimination.⁽⁸³⁾ The statute now prohibits discrimination on the basis of religion,⁽⁸⁴⁾ national origin,⁽⁸⁵⁾ sex,⁽⁸⁶⁾ deafness and blindness,⁽⁸⁷⁾ physical or mental disability,⁽⁸⁸⁾ and sexual orientation.⁽⁸⁹⁾

By 1992, when this litigation began, the statute's "definition of place of public accommodation, resort or amusement" read as follows:

A place of public accommodation, resort or amusement within the meaning hereof shall be defined as and shall be deemed to include any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public and, without limiting the generality of this definition, whether or not it be (1) an inn, tavern, hotel, shelter, roadhouse, motel, trailer camp or resort for transient or permanent guests or patrons seeking housing or lodging, food, drink, entertainment, health, recreation or rest; (2) a carrier, conveyance or elevator for the transportation of persons, whether operated on land, water or in the air, and the stations, terminals and facilities appurtenant thereto; (3) a gas station, garage, retail store or establishment, including those dispensing personal services; (4) a restaurant, bar or eating place, where food, beverages, confections or their derivatives are sold for consumption on or off the premises; (5) a rest room, barber shop, beauty parlor, bathhouse, seashore facilities or swimming pool, except such rest room, bathhouse or seashore facility as may be segregated on the basis of sex; (6) a boardwalk or other public highway; (7) an auditorium, theatre, music hall, meeting place or hall, including the common halls of buildings; (8) a place of public amusement, recreation, sport, exercise or entertainment; (9) a public library, museum or planetarium; or (10) a hospital, dispensary or clinic operating for profit . . . .⁽⁹⁰⁾

The plain language of the statute makes two principles abundantly clear. The statute is intended to cover every "place"--even a highway or boardwalk--where the public is welcome,⁽⁹¹⁾ and the "places" enumerated in the statute are not intended to be an exhaustive or definitive list.⁽⁹²⁾ The SJC has reiterated this principle, stating that the statute has a "broad, remedial purpose" and that it should be given "a `broad, inclusive interpretation.'"⁽⁹³⁾ The SJC has indicated that a close review of the facts is necessary in order to determine when a "place" is considered a public accommodation.⁽⁹⁴⁾

This was the state of the law on the eve of the trial. The most recent amendment to the public accommodations law, prohibiting discrimination on the basis of sexual orientation, had yet to be tested.⁽⁹⁵⁾ A New York State court had determined that an event taking place on a public highway could be considered a place of public accommodation,⁽⁹⁶⁾ and there was no clear United States Supreme Court precedent concerning this type of festivity. Was this Parade like the New York or Boston Marathon,⁽⁹⁷⁾ or was it more like the Great Pumpkin Festival⁽⁹⁸⁾ or a Ku Klux Klan rally?⁽⁹⁹⁾ The answer to that question would determine the outcome of this case.

Meanwhile, a federal district court had found New York City's annual St. Patrick's Day Parade to be a private event, protected by the First Amendment.⁽¹⁰⁰⁾ The federal judge found that "[a] parade is, by its nature, a pristine form of speech,"⁽¹⁰¹⁾ even as he distinguished the Boston Evacuation Day/St. Patrick's Day Parade.⁽¹⁰²⁾ The path marked by the New York St. Patrick's Day Parade case foreshadowed how GLIB would lose everything it had won in the state courts.⁽¹⁰³⁾

  The Plaintiffs

It was no accident that the Massachusetts public accommodations law was amended in 1989 to prohibit discrimination on the basis of sexual orientation.⁽¹⁰⁴⁾ The passage of this legislation marked the growing political clout of the gay, lesbian and bisexual community and its supporters.⁽¹⁰⁵⁾ It also marked the success and mainstreaming of a civil rights struggle that first appeared as the "gay liberation" movement in the 1960s.⁽¹⁰⁶⁾ Boston's annual Gay Pride Parade, which began as a gathering of just a few hundred people in 1971,⁽¹⁰⁷⁾ is now the largest parade and celebration of any type in New England.⁽¹⁰⁸⁾

With the growing acceptance of the idea of protecting the basic human rights of all persons, regardless of sexual orientation, organizing in the gay, lesbian and bisexual community branched out into new areas. In New York, the Irish Lesbian and Gay Organization (ILGO) was formed.⁽¹⁰⁹⁾ ILGO launched the first effort by an Irish gay and lesbian group to openly celebrate St. Patrick's Day with its community.⁽¹¹⁰⁾ Inspired by ILGO's struggle in New York, in 1991, gay, lesbian and bisexual Irish-American Bostonians began to organize.⁽¹¹¹⁾ Barbra Kay, Patrick Ward, Ellie Rudolph and Cindy Toombs founded the Irish-American Gay, Lesbian & Bisexual Group of Boston (GLIB).⁽¹¹²⁾ GLIB's purpose, as Ms. Kay testified at trial, was to serve as a vehicle for expressing its members' pride in their dual identities as gay, lesbian or bisexual persons who are also Irish or Irish-Americans,⁽¹¹³⁾ to show the diversity in both the Irish and the gay communities,⁽¹¹⁴⁾ to support ILGO in its efforts in New York City,⁽¹¹⁵⁾ and to participate in Boston's annual Evacuation Day/St. Patrick's Day Parade.⁽¹¹⁶⁾ GLIB was a social organization whose main activities included monthly potlucks and a newsletter.⁽¹¹⁷⁾ In addition to the Evacuation Day/St. Patrick's Day Parade, GLIB participated in Gay Pride celebrations throughout New England,⁽¹¹⁸⁾ raised money for the AIDS Action Committee through its annual fundraising walk,⁽¹¹⁹⁾ and, in 1993, participated in the Dorchester Day Parade.⁽¹²⁰⁾ GLIB's members were male and female, young and old. They shared no single religious belief, although some were devoutly Catholic. Some GLIB members were veterans.⁽¹²¹⁾ Some lived in South Boston. The group had no single political viewpoint or agenda. Some members had been active politically prior to joining the group,⁽¹²²⁾ but for many, their membership in GLIB and their participation in the Boston Evacuation/St. Patrick's Day Parade was the first time they came "out" publicly or were involved in any public controversy. What they all had in common was that they considered themselves part of the Irish family.⁽¹²³⁾

  GLIB Joins the Parade

Late in 1991, Barbra Kay, one of GLIB's founders, contacted John Meunier, the Mayor's liaison to the gay and lesbian community, in order to find out how to participate in the City's St. Patrick's Day Parade.⁽¹²⁴⁾ Mr. Meunier put Barbra Kay in contact with Tom Lyons, then Director of the City of Boston's Office of Veterans Affairs and Chief Marshal of the 1992 Parade.⁽¹²⁵⁾ Mr. Lyons mailed Ms. Kay the standard registration form and letter welcoming GLIB to the 1992 Parade.⁽¹²⁶⁾ Ms. Kay returned the completed registration form and GLIB's registration fee of two hundred dollars to Mr. Lyons.⁽¹²⁷⁾ It seemed, at first, that Boston would avoid the controversy that had plagued the New York City St. Patrick's Day Parade.

  GLIB Is Banned from the Parade

As was then the custom, at the next meeting of the Veterans Council in January 1992, Mr. Lyons announced the names of the latest batch of groups that had registered for the 1992 Parade, including GLIB.⁽¹²⁸⁾ For the first time in the history of the Veterans Council's administration of the Parade, the Council voted to revoke the registration of a group admitted to the Parade.⁽¹²⁹⁾

When pressed to explain why GLIB's registration had been revoked, the Veterans Council came up with various explanations.⁽¹³⁰⁾ The Veterans Council complained that GLIB had applied "too late" for the 1992 Parade,⁽¹³¹⁾ although neither the registration form nor the form letter contained a deadline.⁽¹³²⁾ The Veterans Council complained that it did not know anything about GLIB, yet it had revoked GLIB's registration without asking the Chief Marshal or Ms. Kay to provide further information. The Veterans Council complained that Ms. Kay had refused to "guarantee" GLIB's good behavior during the Parade, yet no other group was asked for such a guarantee.⁽¹³³⁾ The Veterans Council accused GLIB of being a front for the direct-action groups ACT-UP and Queer Nation, who only sought to disrupt the Parade.⁽¹³⁴⁾ GLIB denied these accusations.⁽¹³⁵⁾ Eventually, Tom Lyons returned the registration form to Ms. Kay with the following handwritten notation: "Dear Ms. Kay, Your application has been denied for safety reasons and insufficient information regarding social club."⁽¹³⁶⁾ At no point did the Veterans Council say that it sought to exclude GLIB from the Parade because the group espoused a message that conflicted with the message that the Veterans Council sought to convey in the Parade.⁽¹³⁷⁾

Efforts to negotiate a resolution of this dispute failed dramatically.⁽¹³⁸⁾ Representatives of the Mayor's Office and the Community Disorders Unit of the Boston Police Department acted as mediators between the Veterans Council and GLIB.⁽¹³⁹⁾ Attempting to address the Veterans Council's stated reasons for excluding the group, GLIB agreed to a number of conditions on its participation in the Parade: its "unit" would consist of no more than twenty-five persons;⁽¹⁴⁰⁾ each GLIB member would wear insignia identifying her or him as a member of the group;⁽¹⁴¹⁾ the group would carry just a single cloth banner at waist level;⁽¹⁴²⁾ no other banners or signs of any type would be displayed by the group;⁽¹⁴³⁾ no member of the group would distribute any leaflets, objects or materials;⁽¹⁴⁴⁾ all members of the group would obey the appropriate orders of the Boston Police;⁽¹⁴⁵⁾ all members of the group would conduct themselves in a peaceful and orderly manner;⁽¹⁴⁶⁾ all terms and conditions which bound other Parade participants would also bind GLIB;⁽¹⁴⁷⁾ and any violation of the agreement would be grounds for immediate expulsion of individual members or of the group from the Parade.⁽¹⁴⁸⁾ Despite GLIB's concessions, the Veterans Council refused to reconsider.⁽¹⁴⁹⁾ Represented by Gay & Lesbian Advocates & Defenders (GLAD) and the Civil Liberties Union of Massachusetts (CLUM),⁽¹⁵⁰⁾ GLIB filed suit seeking a preliminary injunction allowing it to participate in the Parade just days before the 1992 Parade was scheduled to take place.⁽¹⁵¹⁾

Suffolk Superior Court Judge Hiller Zobel immediately scheduled argument on GLIB's request for injunctive relief.⁽¹⁵²⁾ When questioned by Judge Zobel at this hearing, the Veterans Council's attorney voiced various reasons for his clients' decision to exclude GLIB, including its assertion that GLIB's participation in the Parade violated the values the Veterans Council sought to express in the Parade.⁽¹⁵³⁾ Judge Zobel pressed Chester Darling, the Veterans Council's attorney, to define these values, and to explain how all the various businesses and performers and politicians who participated in the Parade expressed these values, while GLIB did not.⁽¹⁵⁴⁾ Mr. Darling voiced the refrain that carried him all the way to the Supreme Court: that the Parade expressed his clients' "traditional family values" and that, under the First Amendment, he needed to say nothing more. Unable to define "traditional family values" and finding only evidence of a public festival, Judge Zobel entered a preliminary injunction ordering the Veterans Council and the City of Boston to permit GLIB to participate in the 1992 Parade.⁽¹⁵⁵⁾ The injunction incorporated the terms and conditions of GLIB's earlier offer in compromise to the Veterans Council.⁽¹⁵⁶⁾

On March 13, 1992, with a court order in hand and surrounded by police--threatened, heckled, cursed, bombarded by rocks, bottles, cans, and smoke bombs, and doused with beer, coffee, and spit--twenty-five members of GLIB made history.⁽¹⁵⁷⁾ They marched the four and one-half mile Parade route through South Boston carrying a simple cloth banner, at waist level, containing the words "Irish-American Gay, Lesbian and Bisexual Group of Boston," in green letters on a white background, with green shamrocks and pink triangles scattered about⁽¹⁵⁸⁾--the first openly gay, lesbian and bisexual group ever to participate in Boston's annual Evacuation Day/St. Patrick's Day Parade.⁽¹⁵⁹⁾

VIII.  The Aftermath

In the months following the 1992 Parade, the Veterans Council began to take steps to "privatize" the Parade.⁽¹⁶⁰⁾ Approximately one-third of the Parade's funding historically had come from the City of Boston.⁽¹⁶¹⁾ In 1993, the City's Office of Business and Cultural Development again set aside $9,000 for the Parade.⁽¹⁶²⁾ The Veterans Council, however, vowed not to use the City's money as it began to sever its ties with the past.⁽¹⁶³⁾ For the first time, the Veterans Council, rather than the City of Boston's Printing Department, produced the Parade Roster.⁽¹⁶⁴⁾ For the first time, the City of Boston seal was missing from the Parade Roster and Parade correspondence.⁽¹⁶⁵⁾ Although still called the "Evacuation Day and St. Patrick's Day Parade," for the first time, the 1993 Parade Roster was printed in green and sported several shamrocks.⁽¹⁶⁶⁾ For the first time, Parade participants were required to submit an "application form" rather than a "registration form" in order to take part in the Parade.⁽¹⁶⁷⁾

Other aspects of the Parade remained unchanged. As in the past, the Parade was organized according to military marching orders.⁽¹⁶⁸⁾ Each division was headed by a major contributor to the Parade and the marching band that the contributor sponsored.⁽¹⁶⁹⁾ Each division comprised various "units," and these units included politicians, military groups, local and national businesses, public officials, public employees, public interest groups, political groups, church groups, high school marching bands, and performers from all over the world.⁽¹⁷⁰⁾ As in the past, with the exception of certain politicians and community leaders, only "units" could participate in the Parade.⁽¹⁷¹⁾

GLIB's efforts to participate in the 1993 Parade were once again rebuffed by the Veterans Council.⁽¹⁷²⁾ This time there was a new twist in the Veterans Council's reasoning. It claimed that GLIB was excluded because the Veterans Council had determined that it would not permit "sexual themes" in the Parade.⁽¹⁷³⁾ GLIB returned to court and Judge Zobel, finding no significant change in the facts since 1992,⁽¹⁷⁴⁾ again ordered the Veterans Council and the City of Boston to allow GLIB to participate under the same terms and conditions as the court had ordered in 1992.⁽¹⁷⁵⁾ In his written order, Judge Zobel made the following findings:

1. The history of the parade shows it to be a secular event, without theme beyond an association with the coincidence that the British troops left Boston (Evacuation Day) on March 17, 1776 (St. patrick's [sic] Day).

2. The parade is in reality a civic event, attracting some 700,000 spectators, and requiring detailed participation by city agencies in planning and execution. . . . [T]he parade is in every rational sense a municipal celebration, a public festival.

. . . .

5. Defendants, as permit holders, are thus merely the custodians of a civic celebration. They are not the owners of a private parade.⁽¹⁷⁶⁾

The Parade was twice postponed because of snow,⁽¹⁷⁷⁾ and the Veterans Council used the time to appeal Judge Zobel's order to the Massachusetts Appeals Court⁽¹⁷⁸⁾ and the SJC.⁽¹⁷⁹⁾ Both appeals were denied.⁽¹⁸⁰⁾ The Veterans Council also instituted a separate action in the federal district court,⁽¹⁸¹⁾ naming, inter alia, each of the state court judges and Commissioner of the Massachusetts Commission Against Discrimination as defendants, seeking to have all rulings against it overturned.⁽¹⁸²⁾ Noting that the federal court does not sit in review of state court proceedings, Judge Wolf dismissed the Veterans Council's complaint.⁽¹⁸³⁾

The 1993 Parade finally took place on March 28, 1993.⁽¹⁸⁴⁾ Because of the postponements, the number of both participants and spectators was greatly reduced.⁽¹⁸⁵⁾ GLIB once again marched under police protection through a gauntlet of smoke bombs, invective, and spit.⁽¹⁸⁶⁾ Along the entire route, however, there could be found smiling faces and supporters, and the occasional "Welcome to South Boston!" could be heard.⁽¹⁸⁷⁾

The case came to trial before Superior Court Judge J. Harold Flannery on November 15, 1993.⁽¹⁸⁸⁾ Twelve witnesses testified; 113 exhibits were received in evidence.⁽¹⁸⁹⁾ On December 15, 1993, Judge Flannery announced his decision.⁽¹⁹⁰⁾ Judge Flannery's detailed ruling answered the two questions posed earlier in this Article:⁽¹⁹¹⁾ (1) this Parade was, indeed, a place of public accommodation,⁽¹⁹²⁾ and (2) GLIB had been excluded on the basis of sexual orientation.⁽¹⁹³⁾ Judge Flannery ordered the Veterans Council not to exclude GLIB because of its members' sexual orientation, and to allow it to participate on the same terms and conditions as all other participants.⁽¹⁹⁴⁾ Inspired, as Massachusetts Appeals Court Judge Brown had been,⁽¹⁹⁵⁾ by the civil rights struggle played out in his court, Judge Flannery ended his opinion with a call for the community to come together: "History does not record that St. Patrick limited his ministry to heterosexuals or that General Washington's soldiers were all straight. Inclusiveness should be the hallmark of their Parade."⁽¹⁹⁶⁾ The SJC affirmed this decision without opinion on March 11, 1994.⁽¹⁹⁷⁾ In response to the SJC's affirmance, the Veterans Council canceled the 1994 Parade.⁽¹⁹⁸⁾

On January 6, 1995, the United States Supreme Court granted certiorari in the case⁽¹⁹⁹⁾ and on June 19, 1995, reversed the state court ruling.⁽²⁰⁰⁾

  The Supreme Court's Opinion

Justice Souter, writing for the unanimous Court, framed the issue this way: "The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment."⁽²⁰¹⁾ The Supreme Court's description of the case was devoid of all of the difficult, fact-sensitive questions about what this Parade was, and why GLIB was excluded; questions that had properly occupied the state courts.⁽²⁰²⁾ The Supreme Court simply redefined the case and decided to answer the noncontroversial question of whether private citizens can organize private parades.⁽²⁰³⁾ If indeed the City of Boston's Evacuation Day/St. Patrick's Day Parade were a private parade, and its organizers--the Veterans Council and the City of Boston--were private citizens, there would never have been a case.⁽²⁰⁴⁾ If the facts had been as the Supreme Court described them, GLIB would not have brought this case, because GLIB clearly has no right to march in someone else's private parade.⁽²⁰⁵⁾ But private citizens and private parades were not the issues in this case.⁽²⁰⁶⁾

The real issue in this case was whether a group of private citizens who help a city administer a public event commemorating a public holiday, an event first established by the City which has received public funding and support throughout its long history and which takes place on the public streets of that city, can exclude a group of city residents because of the sexual orientation of the group's members.⁽²⁰⁷⁾ Now this is a tougher question, in part because the event is called a "parade" and we associate parades with expression and expression with the First Amendment, and in part because the group being excluded is a gay, lesbian and bisexual group, and any public statement of one's sexual orientation is viewed as political expression (rather than status), and we associate political expression with the First Amendment. Rather than honestly wrestle with this politically more difficult question and its inevitable answer (under the Massachusetts public accommodations law, a group cannot be excluded from a public event simply because of its members' protected status⁽²⁰⁸⁾), the Court constructed a refuge in the First Amendment. In order to make this case into a simple First Amendment matter, however, the Court had to ignore certain critical facts. This was not the independent review of the record required in First Amendment cases by Bose Corp. v. Consumers Union of United States, Inc.⁽²⁰⁹⁾ or New York Times Co. v. Sullivan.⁽²¹⁰⁾ The Court made findings for which there are no supporting facts in the record, misinterpreted critical findings of the trial court, and ignored facts that did not fit with its theories. I call these "The Seven Errors," and they are described below.⁽²¹¹⁾

A.  Sponsorship of the Parade

The Court's first error appears in its recitation of the facts of the case.⁽²¹²⁾ Contrary to specific evidence in the record documenting the City of Boston's official co-sponsorship of the Parade through 1992, and its continuing involvement in the 1993 Parade,⁽²¹³⁾ Justice Souter stated that "[t]he tradition of formal sponsorship by the city came to an end in 1947 . . . when Mayor James Michael Curley himself granted authority to organize and conduct the St. Patrick's Day-Evacuation Day Parade to the petitioner."⁽²¹⁴⁾ In truth, in 1947, the tradition of co-sponsorship between the City of Boston and the Veterans Council was just beginning.⁽²¹⁵⁾ The partnership between the City and the Veterans Council was key to the Parade's size and success. The City of Boston suggested participants to the Veterans Council, helped lay out the marching order of the Parade, printed the Parade Roster and Parade stationery, and in 1992 and 1993, budgeted $9,000 toward the cost of the Parade.⁽²¹⁶⁾ Every year City workers erected the "Mayor's Viewing Stand" on the Parade route.⁽²¹⁷⁾ For the decades leading up to and including 1992, the Parade was described as the annual "City of Boston Evacuation Day/St. Patrick's Day Parade" and the Parade Roster listed the City of Boston as the official sponsor of the Parade.⁽²¹⁸⁾ Evidence was introduced at trial that in 1993, Boston Mayor Raymond Flynn sponsored a fundraising event for the Veterans Council's Parade Committee on City-owned property, using invitations stamped with the City of Boston seal, and sent from his office listing his office telephone number for the R.S.V.P.⁽²¹⁹⁾ The "formal sponsorship" and involvement of City officials was much more extensive and more immediate in time than the Supreme Court acknowledged.⁽²²⁰⁾ This crucial error allowed the Supreme Court to describe the Veterans Council as "private citizens"⁽²²¹⁾ rather than as trustees of a public, municipal event, as they had been described by the state courts.⁽²²²⁾

B.  GLIB's Purpose

The Court's second factual error was to conflate GLIB's purpose in forming--that is, its purpose in existing as a group--with its purpose in participating in the annual Evacuation Day/St. Patrick's Day Parade. Justice Souter described GLIB's purpose as follows:

GLIB was formed for the very purpose of marching in [the Parade], as the trial court found, in order to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York parade.⁽²²³⁾

The problem is, the trial court made no such finding. A careful reading of the trial court opinion shows that Judge Flannery was, in reality, talking about two different things: first, GLIB's reasons for existing as a group, and second, the fact that GLIB wished to participate in the Parade:

As the name tells it, GLIB is an organization of Irish-Americans who are gay, lesbian and bisexual, and their supporters. A social organization, GLIB was formed to march in the St. Patrick's/Evacuation Day Parade. GLIB's purposes were threefold: to express its members' pride in their dual identities; to demonstrate to the Irish-American and to the gay, lesbian, and bisexual communities the diversity within those respective communities; and to show support for the Irish-American gay, lesbian, and bisexual men and women in New York City ("ILGO" members) who were seeking to participate in the New York St. Patrick's Day Parade.⁽²²⁴⁾

Justice Souter adapted the passage above in his discussion of GLIB's purpose for participating in the Parade,⁽²²⁵⁾ but his editorial changes altered Judge Flannery's meaning. By changing the periods to commas, Justice Souter converted the trial court's finding about GLIB's purposes to a finding that GLIB had a distinct message it sought to convey in the Parade.⁽²²⁶⁾ In reality, Judge Flannery was simply stating that GLIB wished to march in the Parade, period.⁽²²⁷⁾ In a new sentence, Judge Flannery explained that, as a group, GLIB members sought to express their pride in their dual identities as gay, lesbian or bisexual Irish and Irish-American persons, to express their solidarity and support with their brothers and sisters in New York City, and to show the endless diversity of the human community.⁽²²⁸⁾ Judge Flannery never made a factual finding that GLIB had a message it sought to convey in the Parade, much less that it contained all of these various elements.

Why is the question of GLIB's message so important? Because the Supreme Court was searching for a way to avoid the trial court's finding of discrimination in this case. If the Parade is private expression, as the Court stated, then "messages" can be excluded without impermissible discrimination.⁽²²⁹⁾ Like everything about this case, however, this question is not so simple. Even if GLIB's participation in the Parade conveyed some message,⁽²³⁰⁾ that message was no different from the messages communicated by other participating groups. Consider, for a moment, the Boston Firefighters. Why do they want to be in the Parade, marching behind a banner? As a group, the members may have many purposes: to fight fires, to gather together socially, to support each other, and to show their pride.⁽²³¹⁾ In the St. Patrick's Day Parade, however, their "purpose" is not to fight fires, but rather to celebrate the holiday. The Baptist Bible Trolley does not travel the Parade route conducting church services, but rather is there wishing everyone a "Happy St. Patrick's Day." Like these and other groups, GLIB wished to be in the Parade because "everyone is Irish on St. Patrick's Day." Unlike these other groups, however, the Supreme Court viewed GLIB's participation as fraught with messages and meaning that were somehow inappropriate for the Parade.⁽²³²⁾

By misrepresenting the trial court's findings, the Supreme Court was able to miscast GLIB's purposes and impugn GLIB's motives in wishing to participate in the Parade. This error is a crucial piece in the reversal of the state court's ruling.

C.  The "Application" Form

The Court's third error was its bold assertion that "the Council denied GLIB's application to take part in the 1992 parade."⁽²³³⁾ As the previous discussion has shown, however, no such "application" existed in 1992; all groups simply registered for the Parade.⁽²³⁴⁾ In fact, GLIB's registration form was approved in 1992, only to be revoked once the Veterans Council learned that an openly gay, lesbian and bisexual Irish group had been registered in the Parade.⁽²³⁵⁾ This factual error masks a more complex reality: the Veterans Council had no set criteria or means for investigating or approving groups seeking to participate in the Parade,⁽²³⁶⁾ and that criteria only began to slowly develop after this litigation began and the Veterans Council sought ways to avoid the operation of the court's orders.⁽²³⁷⁾ By ignoring this truth, the Supreme Court dismissed key evidence that points to this Parade being a public festival, and not a private event.

D.  Individual Participants

The Court's fourth factual error was its assertion that no individual gay, lesbian or bisexual person, or member of GLIB, had been excluded from the Parade.⁽²³⁸⁾ Justice Souter appeared puzzled that the public accommodations law had been applied to GLIB as a group:

In the case before us, however, the Massachusetts law has been applied in a peculiar way. Its enforcement does not address any dispute about the participation of openly gay, lesbian, or bisexual individuals in various units admitted to the parade. The petitioners disclaim any intent to exclude homosexuals as such, and no individual member of GLIB claims to have been excluded from parading as a member of any group that the Council has approved to march.⁽²³⁹⁾

In this peculiar passage, it is almost as if the Court had never seen discrimination before. Individuals may claim the protection of anti-discrimination laws if they are members of a group protected by statute.⁽²⁴⁰⁾ If every African-American, Jewish and female employee in a company were fired on the same day, leaving an entirely white, Christian and male workforce, would the Court say that because the employer fired a group of people, there had been no discrimination against the individual employees?

Closer to home, imagine this hypothetical scenario. The Veterans Council has decided that the Jewish War Veterans cannot participate in the Parade as a group, nor can they carry a banner identifying their group. The Veterans Council insists it has no objection to individual Jews participating in the Parade without a banner; it just does not want to inject religious themes into the Parade. Jewish veterans and their families are free to tag along with other groups, as individuals, if anyone will take them. If these were the facts, would the Court say that there had been no discrimination because no individual Jewish veteran had been denied entrance into the Parade? It simply is illogical. And if the Veterans Council had excluded the National Association for the Advancement of Colored People (NAACP) as a group, would there be no racial discrimination because the NAACP also has members who are not African-American?

Equally as important, the factual error at the heart of Justice Souter's argument shows how fundamentally the Court misunderstood this Parade. Unless you are the president of the Massachusetts Senate, a member of Congress, a City Councilor, or a candidate for public office and you have sponsored a marching band or a float, you cannot participate in this Parade as an individual.⁽²⁴¹⁾ The entire Parade is organized into divisions and units, and every unit carries an identifying banner.⁽²⁴²⁾ In this regimented organization, the Court proposes that the solution for exclusion is for GLIB's members to participate with "any group that the Council has approved to march."⁽²⁴³⁾ Which group did the Court have in mind--the Troy High School marching band, the Joey Clowns, the Boston Bruins, the Cycling I, or McGruff the Crime Dog?⁽²⁴⁴⁾ Second-class citizenship is not the answer to discrimination.

This factual error allowed the Court to overturn the trial court's finding of discrimination.⁽²⁴⁵⁾ It is perhaps the saddest, most tortured section of the Court's decision, as it also ignores this basic truth: Barbra Kay, Timothy Daley, and Cathleen Finn, all brave members of GLIB who marched in the Parade, are the individually named plaintiffs in the case.⁽²⁴⁶⁾ When GLIB was excluded from the Parade, these persons were excluded from the Parade.

E.  GLIB's Own Parade

The Court's fifth error was the blind eye it turned to the record showing the historic importance and the unique public character of this Parade.⁽²⁴⁷⁾ There is no St. Patrick's Day Parade like it anywhere in New England;⁽²⁴⁸⁾ it is the place to be in Massachusetts on St. Patrick's Day. Justice Souter was not impressed:

True, the size and success of petitioners' parade makes it an enviable vehicle for the dissemination of GLIB's views, but that fact, without more, would fall far short of supporting a claim that petitioners enjoy an abiding monopoly of access to spectators. Considering that GLIB presumably would have had a fair shot (under neutral criteria developed by the city) at obtaining a parade permit of its own, respondents have not shown that petitioners enjoy the capacity to "silence the voice of competing speakers," as cable operators do with respect to program providers who wish to reach subscribers.⁽²⁴⁹⁾

GLIB never argued that the City of Boston had denied it a parade permit or that it was not able to participate in other parades or events.⁽²⁵⁰⁾ What GLIB did argue is that there is one Evacuation Day, one St. Patrick's Day, one historic Parade route through South Boston, and one historic, municipal Parade.⁽²⁵¹⁾ The Veterans Council had been granted the permit for this Parade for forty-seven years running;⁽²⁵²⁾ in 1994, when the Veterans Council feared that it may not get the permit again, it sued the City of Boston, and won a declaratory judgment granting it the permit.⁽²⁵³⁾ This certainly looks like a monopoly.

In the same spirit as the Court's suggestion that the solution to GLIB's exclusion as a group from the Parade was to have its members tag along as individuals with other "approved" groups,⁽²⁵⁴⁾ here the Court said that GLIB should have its own City of Boston Evacuation Day/St. Patrick's Day Parade.⁽²⁵⁵⁾ But when and where does the Court think this alternative Evacuation Day/St. Patrick's Day Parade can occur? It cannot happen in South Boston at Dorchester Heights on St. Patrick's Day because there is already a parade happening there. And if it cannot happen then and there, can it be the same Parade? As a nation, we long ago rejected the concept of "separate but equal" as a solution to discrimination.⁽²⁵⁶⁾ It is beneath the dignity of our nation's highest court to raise this specter again.

F.  The Veterans Council's Speech

The Court's sixth error was its total failure to define the Veterans Council's message. The Court's entire decision rests on its determination that the Veterans Council uses the Parade as expression and that GLIB's "message"--which the Court does define and discuss in great detail--conflicts with the Veterans Council's "message."⁽²⁵⁷⁾ But what is the Veterans Council's message? What does the Parade express? The most that the Court was able to say was:

Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression . . . .⁽²⁵⁸⁾

Here the Court admits first, that the Veterans Council failed to communicate a "particularized message" in the Parade, and second, that in order to reach its decision in this matter, the Court adopted a view of the Parade's message that may "give[] the Council credit for a more considered judgment than it actively made" concerning the message it sought to convey in the Parade.⁽²⁵⁹⁾ On the dubious strength of these thin analytical strands, the Court insists that this "private" Parade had a "message," and that GLIB was excluded only because its message was "disfavored" by the Veterans Council.⁽²⁶⁰⁾ Never has the Supreme Court so casually dismissed discrimination, and never has it so utterly abandoned the rigorous analysis demanded both by the facts of the case at bar, and by its own precedent. In the New York State Club Association v. New York City⁽²⁶¹⁾ decision, Justice White wrestled with the truly difficult issues raised by the conflict between persons seeking an end to discrimination, on the one hand, and others seeking a full participation in public institutions and protection in the First Amendment's guarantee of freedom of association.⁽²⁶²⁾ It is a painful struggle, touching on competing values we all hold dear. Justice White looked that struggle straight in the eye. Justice Souter turned away.

When a party claims that its conduct is protected by the First Amendment, the courts do not simply pack up and call it a day. The Supreme Court has carefully laid out the appropriate analysis: the factfinder's task is not to judge the validity of the beliefs; instead it must determine whether those beliefs are sincerely held.⁽²⁶³⁾ In other words, it is appropriate for the factfinder to determine whether the claimed First Amendment belief is sincere, or whether it is a pretext for impermissible conduct.⁽²⁶⁴⁾ And even if the belief is sincere, that does not end the matter.⁽²⁶⁵⁾ In certain circumstances, it is inevitable that eradicating discrimination will work some slight burden on an individual's First Amendment rights.⁽²⁶⁶⁾ In certain circumstances, such a slight burden is allowed.⁽²⁶⁷⁾

When the Veterans Council claims that this Parade is its private expression, and that GLIB must be excluded because this Parade expresses "traditional family values," the Court can and must probe both the meaning of this expression,⁽²⁶⁸⁾ and the sincerity with which it is held.⁽²⁶⁹⁾ Every state court judge who heard a part of this case labored heroically to understand and credit the Veterans Council's "message."⁽²⁷⁰⁾ And every state court judge came to the same conclusion: it was impossible to find a "particularized message" in this Parade, because the Veterans Council let virtually everyone participate in the Parade, exercising no genuine selectivity regarding participants, and because the messages expressed by participating groups were so varied.⁽²⁷¹⁾ Because there was no identifiable "message" in the Parade, and because of the Veterans Council's shifting explanations for its exclusion of GLIB,⁽²⁷²⁾ the state courts determined that GLIB's exclusion amounted to discrimination.⁽²⁷³⁾

The Supreme Court turned this record on its head and found that the Veterans Council's decision to exclude GLIB proved that the Parade did, indeed, have a message, and was, therefore, a private event.⁽²⁷⁴⁾ It did not matter that neither the Veterans Council nor the Court could define that message; it was enough that GLIB was not welcome. The implications of this ruling are staggering. Let us say that a restaurant which has been open to the public for forty-seven years one day puts a sign in the window that says "No Irish" and refuses to serve any Irish person. Under the Court's reasoning, this act is not evidence of discrimination at all; it is evidence that the restaurant is really a private club, as the restaurant owner, no doubt, would argue.⁽²⁷⁵⁾

The Court also ignored the significance of the fact that the Veterans Council, as a group, does not participate in the Parade or carry a banner.⁽²⁷⁶⁾ Consistent with its long co-sponsorship of the Parade with the City of Boston, it is clear that there is a good reason for this expressive and associational absence: the Veterans Council understood that it was being asked by the City of Boston to administer this Parade, to serve in a fiduciary capacity with the City in organizing and nurturing this unique public institution.⁽²⁷⁷⁾ The Veterans Council was content to function in this capacity until a gay, lesbian and bisexual group took up its open invitation to participate. Then, like the Supreme Court, it started rewriting the record.

G.  GLIB's Speech

As we have seen above,⁽²⁷⁸⁾ the Supreme Court went out of its way to find that GLIB had been excluded from the Parade because of its message or speech, and not because of the sexual orientation of its members. From the tone of the Court's discussion of GLIB's message, one would expect to find on its banner any number of offensive and inflammatory slogans. The truth is, GLIB's banner contained just eight words: "Irish-American Gay, Lesbian and Bisexual Group of Boston." These eight words proved to be something of a Rorschach test for both the Veterans Council and the Supreme Court.

In this banner, the Veterans Council saw an anti-Catholic, anti-South Boston, anti-Veteran, anti-Parade, and anti-family message. The Supreme Court waxed positively eloquent in its description of the various messages GLIB sought to convey with this banner.⁽²⁷⁹⁾ But in the context of this Parade, where every group and politician and business carries a self-identifying banner, GLIB's self-identifying banner had no more or less significance than any other banner in the Parade. GLIB's banner no more injected a "sexual theme" in the Parade than did the banners carried by the Colonial Boys of Norwood or Miss Junior Ice-O-Rama.

  Conclusion

There is no such thing as "a parade." In New York City, Judge Duffy proclaimed that "a parade is, by its nature, a pristine form of speech,"⁽²⁸⁰⁾ yet then explained why the Boston Evacuation Day/St. Patrick's Day Parade, by its nature, was not speech.⁽²⁸¹⁾ The Supreme Court also attempted to broadly define parades as speech,⁽²⁸²⁾ yet simple common sense indicates that the Court's definition, like Judge Duffy's, is inadequate.

According to the Supreme Court, "[p]arades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration."⁽²⁸³⁾ Far from compelling the conclusion that most parades, including Boston's Parade, should therefore be considered speech, this passage illustrates exactly why some parades may in fact be places of public accommodation. Every parade is different. The term "parade" encompasses events as different as political demonstrations to Mardi Gras, from solemn commemorations of such holidays as Memorial Day to festive events such as First Night. Some parades are large; some are small. Some parades are organized by private sponsors; some are spontaneous; some are civic. A parade can be less than a block long; it can go on for miles. It can contain people, animals, and machines. We all grew up watching parades and participating in parades; we know that there is no single definition of a parade.

Parades are integral to our public life and institutions. They are places where we come together, both as participants and as spectators. GLIB never sought to destroy Boston's Evacuation Day/St. Patrick's Day Parade, and the Veterans Council never heard the real compliment or the message, if you will, implicit in all of GLIB's efforts to join this Parade: "Hey, you guys throw a great party and we want to celebrate with you."

The Veterans Council succeeded, as a matter of law, in making the City of Boston's annual Evacuation Day/St. Patrick's Day Parade a "private" event.⁽²⁸⁴⁾ In the process, the Supreme Court collaborated in creating a fictional parade so that it could issue an easy First Amendment decision. The First Amendment needs no such propping up; it has survived countless attempts at subversion in the name of justifying discrimination. How much better it would have been for the Constitution, and for this community, if the Court had told the truth.

* Gretchen Van Ness is a 1988 graduate of Boston College Law School. Ms. Van Ness clerked for the United States District Court for Massachusetts and the United States Court of Appeals for the First Circuit. She also served as a special clerk to Judge A. David Mazzone on the United States Sentencing Commission prior to entering private practice in 1991.

As a cooperating attorney with Gay & Lesbian Advocates & Defenders (GLAD), Ms. Van Ness served as a member of the legal team representing the Irish-American Gay, Lesbian & Bisexual Group of Boston (GLIB) from 1993 through the Supreme Court's decision in 1995. The Supreme Court legal team was led by John Ward, of counsel to Zalkind, Rodriguez, Lunt & Duncan, who argued the Respondents' case to the Supreme Court, and Mary Bonauto, Director of Civil Rights at GLAD. The team also included Professor Larry W. Yackle of Boston University Law School, Gary Buseck of McDonough & Hacking in Boston, and Charles S. Sims of Proskauer Rose Goetz & Mendelsohn in New York. Philip M. Cronin, assisted by Elsie Kappler of Peabody & Arnold in Boston, led the trial team.

1. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 2338 (1995). The GLAD Supreme Court team was ably assisted by Jeremy Cattani, Eric Dupré, Dorothy Fernandez, Mari Garcia, Jason Handler, Laurie Hurtt, Michael D. Lewis, Tim Overholt, and Scott Weiner--students from Boston College Law School, Harvard Law School, and Northeastern University Law School. Particular thanks are due my legal intern, Nina Keaney, of Boston College Law School, whose contributions to our effort far exceeded those of an ordinary third-year law student.

2. Id. at 2343.

3. See id. at 2340-51.

4. See infra notes 211-19 and accompanying text.

5. See Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, 418 Mass. 238, 636 N.E.2d 1293 (1994) [hereinafter GLIB II], cert. granted sub nom. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 714, rev'd, 115 S. Ct. 2338 (1995); Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, No. 93-J-138 (Mass. App. Ct. Mar. 1, 1993) (Brown, J., single justice affirming preliminary injunction of Feb. 19, 1993); Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, 1 Mass. L. Rptr. No. 18 370 (Jan. 29, 1994) [hereinafter GLIB I], reprinted in Petition for Writ of Certiorari Appendix B, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 2338 (1995) (No. 94-749); Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, CIV. No. 92-1518 (Suffolk Super. Ct. Feb. 19, 1993) (order granting preliminary injunction, Zobel, J.).

6. See Michael Rezendes, Gays Gain Ground for Saint Pat's Parade, Boston Globe, Dec. 24, 1992, at 15 (discussing MCAD proceedings); see also Ward v. South Boston Allied War Veterans Council, 15 M.D.L.R. 1702 (1992), aff'd, 15 M.D.L.R. 1991 (1993); South Boston Allied War Veterans Council v. Massachusetts Comm'n Against Discrimination, CIV. No. 93-3169 (Suffolk Super. Ct. June 23, 1994) (order dismissing Veterans Council's complaint for failure to state a claim, Flannery, J.).

7. See South Boston Allied War Veterans Council v. City of Boston, 875 F. Supp. 891 (D. Mass. 1995); South Boston Allied War Veterans Council v. Zobel, 830 F. Supp. 643 (D. Mass. 1993).

8. See, e.g., A Parade of Troubles, Boston Globe, Mar. 6, 1992, at 10 (Editorial); David Armstrong & Judy Rakowski, South Boston Pride Takes to the Street, Boston Globe, Mar. 21, 1994, at 1; Kevin Cullen, City Scenes, Boston Globe, Jan. 15, 1993, at 21; Kevin Cullen, Southie Celebrates--Parade or Not, Boston Globe, Mar. 17, 1994, at 1; Jeff Jacoby, A GLIB Excuse to Crash the St. Pat's Day Parade in Southie, Boston Globe, Mar. 10, 1994, at 19 (Editorial); Jeff Jacoby, Whose Parade? Whose Message?, Boston Globe, June 20, 1995, at 15 (OP-ED); Parade and Prejudice, Boston Globe, June 20, 1995, at 18 (Editorial); The Southie Parade Route, Boston Globe, Mar. 17, 1992, at 16 (Editorial).

9. See generally GLIB II, 418 Mass. at 240-52, 636 N.E.2d at 1294-1300; GLIB I, 1 Mass. L. Rptr. No. 18 at 371-79.

10. Mass. Gen. L. ch. 272, §§ 92A, 98 (1994).

11. See generally Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 2338 (1995).

12. See infra part IX.A.

13. For a discussion of Evacuation Day, see text accompanying infra notes 35-40.

14. See GLIB II, 418 Mass. at 243, 636 N.E.2d at 1295-96 (quoting GLIB I, 1 Mass. L. Rptr. No. 18 at 373).

15. See infra part IX.

16. See infra part IX.

17. Hurley, 115 S. Ct. at 2340-41.

18. GLIB II, 418 Mass. at 243-48, 636 N.E.2d at 1295-98; GLIB I, 1 Mass. L. Rptr. No. 18 at 372-73.

19. Barbra Kay, Timothy Daley, and Cathleen Finn. See GLIB II, 418 Mass. at 238 n.1, 636 N.E.2d at 1293 n.1.

20. GLIB II, 418 Mass. at 238 n.2, 636 N.E.2d at 1293 n.2.

21. GLIB I, 1 Mass. L. Rptr. No. 18 at 371-72.

22. See GLIB II, 418 Mass. at 242, 246-47, 636 N.E.2d at 1295, 1297.

23. Id. at 249-50, 636 N.E.2d at 1298-99.

24. GLIB I, 1 Mass. L. Rptr. No. 18 at 373-76. GLIB's claims against the City were dismissed by the trial court, id. at 377, and were not raised on appeal. GLIB II, 418 Mass. at 245 n.12, 636 N.E.2d at 1297 n.12.

25. See infra notes 192-98 and accompanying text.

26. GLIB I, 1 Mass. L. Rptr. No. 18 at 371-73. The trial court found that the Parade was a public recreational event and that GLIB was excluded because of sexual orientation. See id. at 379 n.5.

27. GLIB II, 418 Mass. at 251, 636 N.E.2d at 1300.

28. See infra parts V, VII.

29. See Bruce Fein, A Commentary Excluding the Interlopers, Wash. Times, Jan. 24, 1995, at A14; Shelley Murphy & Geeta Anand, US Decision is Hailed in South Boston, Boston Globe, June 20, 1995, at 1 (quoting South Boston native, Massachusetts State Senator William Bulger).

30. GLIB II, 418 Mass. at 243-45, 636 N.E.2d at 1295-97 (citing GLIB I, 1 Mass. L. Rptr. No. 18 at 373).

31. Id. at 242 n.8, 636 N.E.2d at 1295 n.8 (quoting GLIB I, 1 Mass. L. Rptr. No. 18 at 379 n.5).

32. See infra notes 41-54 and accompanying text.

33. Mass. Gen. L. ch. 6, § 12J (1994).

34. Mass. Gen. L. ch. 6, § 12C (1994).

35. Mass. Gen. L. ch. 6, § 12K (1994).

36. See Larry W. Yackle, Parading Ourselves: Freedom of Speech at the Feast of St. Patrick, 73 B.U. L. Rev. 791, 834 n.199 (1993).

37. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 2338, 2341 (1995).

38. South Boston Citizens' Association Official Program, Evacuation Day, March 17th, 1926 (1926) [hereinafter 1926 Program] (Program in the collection of the Boston Public Library) (copy on file with the New England Law Review).

39. Yackle, supra note 36, at 834 (citing John Barker, The British in Boston, Being the Diary of Lieutenant John Barker of the King's Own Regiment from November 15, 1774 to May 31, 1776, at 71 (Humphrey Milford ed., 1924)).

40. Hurley, 115 S. Ct. at 2341.

41. See id. (citing Celebration of the Centennial Anniversary of the Evacuation of Boston by the British Army (George E. Ellis ed., Boston, Rockwell & Churchill 1876)).

42. See Celebration of the One Hundred and Twenty-Fifth Anniversary of the Evacuation of Boston by the British Army, March 17, 1901 (1901) [hereinafter 1901 Booklet] (Booklet in the collection of the State Library of Massachusetts) (copy on file with the New England Law Review); 1926 Program, supra note 38.

43. Yackle, supra note 36, at 834-35.

44. See id. at 837-38.

45. The 1992 Official Roster of the Parade, for example, stated that the Evacuation Day and St. Patrick's Day Parade was "Coordinated by Hon. Raymond L. Flynn, Mayor of Boston, Mayor's Office of Business and Cultural Development, Rosemarie E. Sansone, Director, and the Allied War Veterans Council of South Boston." Official Roster Evacuation and St. Patrick's Day Parade Sunday March 15, 1992 [hereinafter 1992 Official Roster] (copy on file with the New England Law Review). The Roster lists the Parade's "General Orders" and names the Chief Marshal, the Chief of Staff, the Adjutant, and the Officers of the Day, among numerous others. Id. Under "Parade Formation," the participants in the Parade are organized according to "units." Id. There are four "divisions": the Staff and Military Division, led by Boston Fire Department and EMS vehicles; the First Division, led by the Colonial Boys of Norwood (sponsored by former Massachusetts Senate President William M. Bulger); the Second Division, led by the Douglas High School Band (sponsored by Hub Video); and the Third Division, led by the Whitman-Hanson High School Band (sponsored by the Irish-American Society of South Boston). Id. Additionally, Parade Adjutant Gene Vaillancourt included his thanks to

all the residents and merchants, who through their support, made this parade possible. . . . A special thanks to Domenic D'Ambrosio of Business and Cultural Development Department, City of Boston, for months of dedicated service to the parade. Without his efforts we could not have the parade we have today.Id. At the end of the Roster, almost as an afterthought, appears the theme of the Parade: "Say `No' to Drugs, and We All Pray for World Peace." Id.

46. See 1901 Booklet, supra note 42.

47. See 1926 Program, supra note 38.

48. Hurley, 115 S. Ct. at 2341.

49. See GLIB I, 1 Mass. L. Rptr. No. 18 at 373, 375; see also Trial Exhibits 87, 89-90, GLIB I (CIV. No. 92-1518) (City of Boston Budgets for civic events) (copies on file with the New England Law Review).

50. See Trial Transcript at A-198 to -207, GLIB I (CIV. No. 92-1518) (testimony of Domenic D'Ambrosio, official in Mayor of Boston's Office of Business and Cultural Development); see also id. at A-280 (testimony of Eugene Vaillancourt).

51. See GLIB II, 418 Mass. at 243, 243-44 n.9, 636 N.E.2d 1296, 1296 n.9.

52. Trial Transcript at A-305 to -306, GLIB I (CIV. No. 92-1518) (testimony of John "Wacko" Hurley) (noting the participation of a band from Ireland).

53. The route has remained essentially unaltered for decades. See Yackle, supra note 36, at 834-35.

54. See GLIB II, 418 Mass. at 243, 636 N.E.2d 1296; Yackle, supra note 36, at 837. Professor Yackle, a member of GLIB's Supreme Court team, offers an excellent detailed history of the Parade and the early stages of this litigation, in addition to a thoughtful discussion of the issues of identity and community raised by this conflict. See generally Yackle, supra note 36, at 834-37.

55. See Hurley, 115 S. Ct. at 2345; 1992 Official Roster, supra note 45 (thanking BNN Television Cable for televising Parade). A video tape of the cable television broadcast of the 1993 Parade was introduced at trial. Hurley, 115 S. Ct. at 2345.

56. See supra note 45.

57. GLIB II, 418 Mass. at 243-44 n.9, 636 N.E.2d at 1296 n.9 (listing 1992 Parade participants including politicians, civic organizations, corporations, governmental entities, and various entertainers).

58. Id.

59. In the 1992 Parade Roster, these participants included just the Parade Chaplain and Assistant Parade Chaplains, the Ancient Order of Hibernians, the Immaculate Heart of Mary Band, and the Holy Name Band. 1992 Official Roster, supra note 45. The 1993 Parade Roster lists just the Parade Chaplain and Assistant Parade Chaplains, the South Boston Ancient Order of Hibernians, and the Immaculate Heart of Mary Band. Official Roster Evacuation Day and St. Patrick's Day Parade Sunday, March 14, 1993 [hereinafter 1993 Official Roster] (copy on file with the New England Law Review).

60. The Troy High School Marching Band from Troy, New York, the St. Joseph's Bag Pipe Band from County Down, Ireland, the Boston Public School Nurses, the New York Police Department, the National Park Service Rangers, WSSH Radio, the United States Army Color Guard, and the Nashua, New Hampshire Marching Band all appear in the 1993 Official Roster. 1993 Official Roster, supra note 59. Sponsors of the 1993 Parade included Budweiser, Massport, Pepsi, the South Boston Savings Bank, Schubert's Smoke Shop, and Hub Video. Id.

61. GLIB I, 1 Mass. L. Rptr. No. 18 at 372-73.

62. Id.

63. See GLIB II, 418 Mass. at 244-45 n.11, 636 N.E.2d at 1296 n.11.

64. See Concord Rod & Gun Club, Inc. v. Massachusetts Comm'n Against Discrimination, 402 Mass. 716, 524 N.E.2d 1364 (1988). In Concord Rod & Gun Club, the SJC rejected a rod and gun club's argument that it was private, and could, therefore, exclude women from membership. Id. at 720-21, 524 N.E.2d at 1366-67. The court noted that the club admitted into its membership only men over the age of 21 living in Concord or in abutting towns. Id. at 719, 524 N.E.2d at 1366. In order to be admitted, a man had to complete an application, have three sponsors, and be voted on by the membership. Id. Despite these procedures for admission, however, the court noted that only three persons had ever been denied membership: two men who had violated the gun laws or a rule of the club, and one woman. Id. In these circumstances, the court determined that there was no genuine selectivity in membership, and that the club was not private, and was, therefore, subject to the state's public accommodations law. Id. at 721, 524 N.E.2d at 1367. Compare United States Jaycees v. Massachusetts Comm'n Against Discrimination, 391 Mass. 594, 463 N.E. 2d 1151 (1984) (finding that the club is not a place of public accommodation). It is important to note that the SJC in GLIB II noted that the trial court had found that since 1947, the Veterans had excluded only two groups from the Parade other than GLIB: the Ku Klux Klan and ROAR (an anti-busing group). GLIB II, 418 Mass. at 244, 636 N.E.2d at 1296. Moreover, the SJC noted that neither of these two groups had been protected by anti-discrimination statutes. Id.

65. GLIB I, 1 Mass. L. Rptr. No. 18 at 373; Trial Transcript at A-280, A-285, A-288, GLIB I (CIV. No. 92-1518) (testimony of Eugene Vaillancourt).

66. Trial Transcript at A-280, GLIB I (CIV. No. 92-1518) (testimony of Eugene Vaillancourt).

67. Id. at A-288 to -289.

68. GLIB I, 1 Mass. L. Rptr. No. 18 at 373. The Boston Bruins, Boston's National Hockey League team, actually led the 1993 Parade, apparently having never submitted an application or registration form to the Veterans Council. Id.

69. Id.

70. GLIB founder Barbra Kay received the following form letter, featuring the City of Boston seal, from Thomas J. Lyons, a City of Boston employee and the Chief Marshal of the 1992 Parade:

You are cordially invited to participate in the 1992 St. Patrick's Day parade [sic], which will be held in South Boston, MA on Sunday, March 15, 1992 at 1:00 p.m.

. . . .

Please fill out the enclosed registration form and return it to us as early as possible.

The Parade Committee expresses sincere and best wishes that we will be able to celebrate this memorable occasion together.Trial Exhibit 51, GLIB I (CIV. No. 92-1518) (copy on file with the New England Law Review).

The form included with this letter also featured the City of Boston seal, and described the Parade as simply "City of Boston Evacuation Day Parade." Trial Exhibit 72, GLIB I (CIV. No. 92-1518) (copy on file with the New England Law Review). The "Parade Registration Form" requested the following information: "Name of Unit," "Manager or Official to Whom Correspondence Should Be Sent," "Number of Persons in Unit," and "Type of Unit," with the following choices: "Band," "Drum & Bugle," "Drill Team," "Color Guard," "Float," "Military Unit," "Veterans Group," "Scout Troop," "Civic Organization," "Other (Specify)." Id.

71. GLIB II, 418 Mass. at 244, 636 N.E.2d at 1296.

72. Id.

73. Id. at 244-45.

74. See supra notes 11-51 and accompanying text.

75. Mass. Gen. L. ch. 272, §§ 92A, 98 (1994).

76. 1865 Mass. Acts 277.

77. U.S. Const. amend. XIV (ratified in 1868).

78. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 2338, 2346 (1995) (citing 1865 Mass. Acts 277; Milton R. Konvitz & Theodore Leskes, A Century of Civil Rights 155-56 (1961); Lisa G. Sherman & Annette K. Sanderson, Project, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 238 (1978); Francis H. Fox, Discrimination and Antidiscrimination in Massachusetts Law, 44 B.U. L. Rev. 30, 58 (1964)).

79. 1865 Mass. Acts 277; see also generally Bryant v. Rich's Grill, 216 Mass. 344, 103 N.E. 925 (1914).

80. See infra notes 80-88 and accompanying text.

81. See 1953 Mass. Acts 437 (codified at Mass. Gen. L. ch. 272, § 92A (1994)); 1971 Mass. Acts 418, § 1 (codified at Mass. Gen. L. ch. 272, § 92A (1994)); 1978 Mass. Acts 331 (codified at Mass. Gen. L. ch. 272, § 92A (1994)).

82. See 1934 Mass. Acts 138 (codified at Mass. Gen. L. ch. 272, § 98 (1994)); 1971 Mass. Acts 418, § 2 (codified at Mass. Gen. L. ch. 272, § 98 (1994)); 1983 Mass. Acts 628, § 7 (codified at Mass. Gen. L. ch. 272, § 98 (1994)); see also Mass. Gen. L. ch. 151B, § 5 (1994) (listing additional damages for discrimination).

83. See infra notes 88-94 and accompanying text.

84. 1950 Mass. Acts 479, § 3 (codified at Mass. Gen. L. ch. 272, § 98 (1994)).

85. 1963 Mass. Acts 613, § 5 (codified at Mass. Gen. L. ch. 272, § 98 (1994)).

86. 1971 Mass. Acts 418, § 2 (codified at Mass. Gen. L. ch. 272, § 98 (1994)).

87. 1975 Mass. Acts 338, § 2 (codified at Mass. Gen. L. ch. 272, § 98 (1994)).

88. 1979 Mass. Acts 595, § 2 (codified at Mass. Gen. L. ch. 272, § 98 (1994)).

89. 1989 Mass. Acts 516, § 15 (codified at Mass. Gen. L. ch. 272, § 98 (1994)). With the passage of the Gay and Lesbian Civil Rights law in 1989, Massachusetts became one of only six states which prohibit discrimination on the basis of sexual orientation in places of public accommodation. See Conn. Gen. Stat. Ann. § 46a-81 (West 1995); Minn. Stat. Ann. § 363.03(Subd.3)(a)(1) (West Supp. 1996); N.J. Stat. Ann. § 10:5-4 (West 1993); R.I. Gen. Laws §§ 11-24-2 to -2.2 (Supp. 1995); Vt. Stat. Ann. tit. 9, § 4502 (1993); Wis. Stat. Ann. § 101.22(9) (West Supp. 1995). In addition, California's Unruh Act, Cal. Civ. Code § 51 (West 1994), has been construed to forbid "unreasonable discrimination" in places of public accommodation. See Hubert v. Williams, 184 Cal. Rptr. 161 (Super. Ct. App. Dep't 1982).

90. Mass. Gen. L. ch. 272, § 92A (1994).

91. See Concord Rod & Gun Club, Inc. v. Massachusetts Comm'n Against Discrimination, 402 Mass. 716, 524 N.E.2d 1364 (1988); 1953 Mass. Acts 437.

92. See United States Jaycees v. Massachusetts Comm'n Against Discrimination, 391 Mass. 594, 463 N.E.2d 1151 (1984); Local Fin. Co. v. Massachusetts Comm'n Against Discrimination, 355 Mass. 10, 242 N.E.2d 536 (1968).

93. Concord Rod & Gun Club, 402 Mass. at 720, 524 N.E.2d at 1367 (quoting Local Fin. Co., 355 Mass. at 14, 242 N.E.2d at 538).

94. See id. at 719-21, 524 N.E.2d at 1366-67; United States Jaycees v. Massachusetts Comm'n Against Discrimination, 391 Mass. 594, 600-01, 463 N.E.2d 1151, 1155 (1984); Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 224, 380 N.E.2d 121, 123 (1978).

95. See Macauley v. Massachusetts Comm'n Against Discrimination, 379 Mass. 279, 281-82, 397 N.E.2d 670, 671-72 (1979) (holding that pre-1989 sexual orientation amendment anti-discrimination law does not apply to discrimination against homosexuals).

96. New York Roadrunners Club v. State Div. of Human Rights, 437 N.Y.S.2d 681, 682 (N.Y. App. Div. 1981) (finding route of New York Marathon to be place of public accommodation), aff'd, 432 N.E.2d 780 (N.Y. 1982).

97. The comparison to the Boston Marathon is not so far-fetched. The organizers of the Boston Marathon must obtain a parade permit from the City of Boston in order to conduct the final leg of the Marathon.

98. Capital Area Right to Life, Inc. v. Downtown Frankfurt, Inc., 862 S.W.2d 297 (Ky. 1993), cert. denied, 114 S. Ct. 2132 (O'Connor, J., dissenting), and cert. denied, 114 S. Ct. 2153 (1994).

99. Invisible Empire of the Knights of the Ku Klux Klan v. Mayor of Thurmont, 700 F. Supp. 281 (D. Md. 1988).

100. New York County Bd. of Ancient Order of Hibernians v. Dinkins, 814 F. Supp. 358, 366 (S.D.N.Y. 1993).

101. Id. (citing Perry Educ. Assoc. v. Perry Local Educator's Assoc., 460 U.S. 37, 45 (1983); Shuttlesworth v. Birmingham, 394 U.S. 147, 152 (1969); Cox v. Louisiana, 379 U.S. 536, 554-55 (1967); Thurmont, 700 F. Supp. at 286-87).

The facts demonstrated that the New York Parade was organized, administered, and financed solely by the Ancient Order of Hibernians, an Irish Catholic men's group. Id. at 361 ("The only public assistance received by AOH [Ancient Order of Hibernians] [was] for the police and sanitation services, which the City affords to every public gathering in the City."). There was no public funding or co-sponsorship with the City, see id., as was the case in Boston. See GLIB I, 1 Mass. L. Rptr. No. 18 at 375-76. There was also no public holiday, such as Evacuation Day, in New York. See Dinkins, 814 F. Supp. at 361-62. It is illogical to claim that every event that calls itself a "parade" must be considered a form of speech. Reality is much more difficult and complex than Judge Duffy's analysis admits.

102. Dinkins, 814 F. Supp. at 368-69.

103. See supra note 100 and accompanying text.

104. 1989 Mass. Acts 516, § 15 (codified at Mass. Gen. L. ch. 272, § 92A (1994)).

105. See Kay Longcope, Gays, Lesbians Call for National Mobilization to Influence Elections, Boston Globe, Nov. 19, 1990, at A21, cited in Yackle, supra note 36, at 791 n.1; Adrian Walker & Scott Lehigh, Gays Hope to Influence Mayor Race: Candidates Perceive a Potent Voting Bloc, Boston Globe, Apr. 12, 1993, at B13, cited in Yackle, supra note 36, at 791 n.1.

106. See generally John D'Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940-1970, at 231-39 (1983), cited in Yackle, supra note 36, at 791 n.1; Toby Moratta, The Politics of Homosexuality 71-99 (1981); Andrew Kopkind, The Gay Movement, Nation, May 3, 1993, at 577, cited in Yackle, supra note 36, at 791 n.1.

107. Robert D. Sullivan, Marching Through History, Boston Phoenix, May 1995 Supp., at 15. In 1994, more than 120,000 persons participated in Boston's annual Gay Pride Parade. Id. at 16.

108. Id. at 15-16.

109. See Yackle, supra note 36, at 821.

110. See New York County Bd. of Ancient Order of Hibernians v. Dinkins, 814 F. Supp. 358, 362 (S.D.N.Y. 1993); Yackle, supra note 36, at 821.

111. The Windy City Times reports that "[o]penly gay groups have marched in Chicago's St. Patrick's Day Parade without consequence." Supreme Court Supports Barring Gays, Windy City Times, June 29, 1995, at 1, 11. In Ireland, the first openly gay and lesbian group to participate in the County Cork St. Patrick's Day Parade won the award for "best new float." Pamela M. Walsh, St. Patrick's Parade in Cambridge Unifies Irish Family, Boston Globe, Mar. 11, 1995, at 14.

112. GLIB II, 418 Mass. at 2241-42, 626 N.E.2d at 1295.

113. Id. at 241, 636 N.E.2d at 1295.

114. Id. at 241-42, 636 N.E.2d at 1295.

115. Id. at 242, 636 N.E.2d at 1295.

116. Id.

117. GLIB I, 1 Mass. L. Rptr. No. 18 at 371.

118. Trial Transcript at A-55, GLIB I (CIV. No. 92-1518) (testimony of Barbra Kay).

119. GLIB I, 1 Mass. L. Rptr. No. 18 at 371.

120. Id.

121. See Don Aucoin & Andy Dabilis, Jeers, Threats Greet Gays in South Boston Parade, Boston Globe, Mar. 16, 1992, at 1 (discussing comments of Cliff Arnesen, a gay veteran who marched with GLIB in 1992).

122. See Trial Transcript at A-92, A-96, GLIB I (CIV. No. 92-1518) (testimony of Barbra Kay); Chris Reidy, Kay Stepped Out of Anonymity, into the Spotlight, Boston Globe, Mar. 12, 1992 (identifying GLIB co-founder Patrick Ward as a founder of the Log Cabin Club, a group of gay, conservative Republicans).

123. See Trial Transcript at A-112 to -113, GLIB I (CIV. No. 92-1518) (testimony of Timothy Daley).

124. Id. at A-92, A-96 (testimony of Barbra Kay).

125. Id. at A-62 (testimony of Barbra Kay).

126. Id. at A-63 (testimony of Barbra Kay); see also Trial Exhibits 71 & 72, GLIB I (CIV. No. 92-1518).

127. Trial Transcript at A-67, GLIB I, (CIV. No. 92-1518) (testimony of Barbra Kay). For a detailed history of the Parade and the events surrounding the litigation, see Yackle, supra note 36, at 834-50.

128. See Yackle, supra note 36, at 839.

129. See id. at 842-43.

130. See id. at 843-44; Don Aucoin, Gays May Sue Organizers Over St. Patrick's Parade Ban, Boston Globe, Mar. 5, 1992, at 1 [hereinafter Aucoin, Gays May Sue]; Don Aucoin, Veterans Bar Gay Group from St. Patrick's Amid Cheers in Southie, Lawsuit Vowed, Boston Globe, Mar. 10, 1992, at 1 [hereinafter Aucoin, Veterans Bar Gay Group].

131. Aucoin, Gays May Sue, supra note 130, at 26.

132. See Trial Exhibits 71 & 72, GLIB I (CIV. No. 92-1518).

133. Yackle, supra note 36, at 840.

134. Id.; see also Aucoin, Veterans Bar Gay Group, supra note 130, at 8.

135. Aucoin, Gays May Sue, supra note 130, at 26; Aucoin, Veterans Bar Gay Group, supra note 130, at 8.

136. Trial Exhibit 72, GLIB I (CIV. No. 92-1518).

137. See Aucoin, Gays May Sue, supra note 130, at 26; Aucoin, Veterans Bar Gay Group, supra note 130, at 8.

138. See Kevin Cullen, City Scenes Shades of Green, No Shades of Gray, Boston Globe, Mar. 6, 1992, at 21; Chris Reidy, Flynn Backs Gays on St. Patrick's Parade, Boston Globe, Mar. 7, 1992, at 1.

139. For a detailed history of the Parade and the events surrounding the litigation, see Yackle, supra note 36, at 838-42.

140. Yackle, supra note 36, at 841.

141. Trial Exhibit 67, GLIB I (CIV. No. 92-1518) (agreement from Barbra Kay, Mar. 6, 1992) (copy on file with the New England Law Review).

142. Id.

143. Id.

144. Id.

145. Id.

146. Trial Exhibit 67, GLIB I (CIV. No. 92-1518).

147. Id.

148. Id.; Don Aucoin, Gays Offer to Limit Their Parade Role, Boston Globe, Mar. 6, 1992, at 1 [hereinafter Aucoin, Gays Offer to Limit]. These are the terms of the preliminary injunction entered in Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, CIV. No. 92-1518 (Suffolk Super. Ct. Mar. 11, 1992) (order granting temporary restraining order, Zobel, J.).

149. See Aucoin, Veterans Bar Gay Group, supra note 130, at 8.

150. See Aucoin, Gays Offer to Limit, supra note 148, at 77; Don Aucoin, Queer Nation at Center of Parade Debate, Boston Globe, Mar. 11, 1992, at 1 [hereinafter Aucoin, Queer Nation]. Mary Bonauto, Director of Civil Rights, for GLAD, Sarah Wuensch for CLUM, along with cooperating attorneys Ellen Wade and Barbara Siegel of Sugarman, Rogers, Barshak & Cohen.

151. See Aucoin, Queer Nation, supra note 150, at 11.

152. Irish-American Gay, Bisexual & Lesbian Group of Boston v. City of Boston, CIV. No. 92-1518 (Suffolk Super. Ct. Mar. 11, 1992) (order granting temporary restraining order, Zobel, J.); Don Aucoin, Judge Lets Gays March in Parade, South Boston Group Won't Appeal, Boston Globe, Mar. 12, 1992, at 1.

153. For a discussion of the Veterans' attorneys' inability to articulate these values, see Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, CIV. No. 92-1518 ¶ 3 (Suffolk Super. Ct. Feb. 19, 1993) (order granting preliminary injunction, Zobel, J.).

154. See id.

155. See Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, CIV. No. 92-1518 (Suffolk Super. Ct. Mar. 11, 1992) (granting temporary restraining order, Zobel, J.).

156. See supra notes 141-48 and accompanying text. Judge Zobel read his order from the bench, and his remarks included the following observation:

It is my judgment that the Plaintiffs are probably likely to prevail on a full trial. It is my judgment that the public interest is not disserved, but rather is served by permitting this Group of 25 people, under the conditions that they have agreed that bind them, to march in a parade which commemorates the memory of an ancient man of peace and which commemorates the first victory in that struggle that insured us of the rights that this case is all about.Irish-American Gay, Bisexual & Lesbian Group of Boston v. City of Boston, CIV. No. 92-1518, at 12 (Suffolk Super. Ct. Mar. 11, 1992) (order granting temporary restraining order, Zobel, J.).

157. See Aucoin & Dabilis, supra note 121, at 14; Luz Delgado, Group Vows to Return Next Year With Others, Boston Globe, Mar. 16, 1992, at 14.

158. See Aucoin & Dabilis, supra note 121, at 1 (photographs of GLIB participation in 1992 Parade).

159. Id.

160. GLIB I, 1 Mass. L. Rptr. No. 18 at 375-76.

161. Id. at 375, 380 n.24. In the fiscal 1992 year, the City of Boston budgeted $9,000 for the Parade. Id. at 376.

162. Id. at 376.

163. Id.

164. Id.; see also 1993 Official Roster, supra note 59.

165. 1993 Official Roster, supra note 59.

166. Id.

167. Trial Exhibit 84, GLIB I (CIV. No. 92-1518). Evidence at trial showed that the 1993 "application form" was treated very much like the old "registration form." Groups were approved by the Veterans Council en masse, see GLIB I, 1 Mass. L. Rptr. No. 18 at 373, as in the past, and some groups bypassed the procedure entirely, including the Boston Bruins, who joined the Parade at the last minute. Id.

168. Id.

169. 1993 Official Roster, supra note 59.

170. Id.; see also GLIB II, 418 Mass. at 243-44 n.9, 636 N.E.2d at 1296 n.9 (citing the trial court's list of the 1992 and 1993 Parade participants).

171. See supra notes 55-72 and accompanying text.

172. Trial Exhibit 42, GLIB I (CIV. No. 92-1518) (letter from Veterans Council to GLIB rejecting its application to march in the 1993 Parade) (copy on file with the New England Law Review).

173. See GLIB I, 1 Mass. L. Rptr. No. 18 at 371.

174. Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, No. 92-1518 at 1 (Suffolk Super. Ct. Feb. 19, 1993) (order granting preliminary injunction, Zobel, J.).

175. Id. at 1, 5-6.

176. Id. at 2-3.

177. Bob Hohler & Betsy Q.M. Tong, S. Boston Parade Postponed Again, Boston Globe, Mar. 18, 1993, at 29.

178. Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, No. 93-J-138 (Mass. App. Ct. Mar. 1, 1993) (order upholding grant of preliminary injunction); Doris S. Wong, Appeals Court OK's Gays in Parade, Boston Globe, Mar. 2, 1993, at 23. In rejecting the Veterans Council's appeal, Judge Brown noted the following:

[T]he law does not require that simply because they are gay and lesbian the plaintiffs must be allowed to participate in the parade; it does, however, prevent their exclusion simply because they are gay.

. . . .

I conclude with a gratuitous observation. It seems that societies have a persistent but perverse need to exclude and persecute certain of their members. In even its mildest form, this need is usually manifested as hate toward a specific segment or group. It makes them into demons. I cannot explain it, but I know it when I see it or hear it. This list of demons is long, and this case illustrates the capacity of individuals to forget the past. However, it pays to remember who is (or has been) on that list: Jews, women, Christians, blacks, abolitionists, Quakers, witches, Irish, Roman Catholics, communists, Asians, welfare recipients, pro-choice advocates, Haitians, and now these plaintiffs. When will it end? It was wrong then, wrong now, and it can never be right. Bigotry in any form is an obscenity.

As a human being, not as a judge, I pray that one day hate and fear as well as discrimination against members of a group just because they are members of a group--those allied obscenities that have plagued us far too long--will, like the dinosaur, be only a distant memory.Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, No. 93-J-138 at 3-4 (Mass. App. Ct. Mar. 1, 1993) (footnote omitted) (citations omitted) (order upholding grant of preliminary injunction). In a footnote, Judge Brown included these famous words:

"In Germany they came first for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up."Id. at 4 n.4 (quoting Martin Niemöller, quoted in John Bartlett, Familiar Quotations 684 (Justin Kaplan ed., 16th ed. 1992)). Niemöller was a German Pastor who was arrested in 1937 by the Gestapo for his opposition to Adolph Hitler. 8 New Encyclopedia Britannica 689 (15th ed. 1989). See Matthew Brelis & Doris S. Wong, Parade Sponsors' Appeal to U.S. Court Ruled Out of Order, Boston Globe, Mar. 12, 1993, at 18 (discussing United States District Court Judge Wolf's ruling that the Veterans did not have standing); Doris S. Wong, Parade Postponed; Court Declines to Hear Appeal, Boston Globe, Mar. 13, 1993, at 4; Doris S. Wong, SJC Declines Hearing on St. Patrick's Day Parade, Boston Globe, Mar. 20, 1993, at 13 [hereinafter Wong, SJC Declines].

179. Doris S. Wong, SJC Upholds Decision to Allow Gay Marchers in St. Patrick's Parade, Boston Globe, Mar. 4, 1993, at 26 (discussing Justice Wilkins's, sitting as a single Justice, denial of Veterans' motion to lift injunction); SJC Doesn't Act on St. Pat Parade, Boston Globe, Mar. 17, 1993, at 27.

180. See Wong, SJC Declines, supra note 178, at 13.

181. See South Boston Allied War Veterans Council v. Zobel, 830 F. Supp. 643 (D. Mass. 1993); Matthew Brelis, Parade Organizers Turn to U.S. Court, Boston Globe, Mar. 10, 1993, at 23. United States District Court Judge Wolf, noting that a federal court does not sit in review of state court proceedings and injunctions, dismissed the Veterans Council's complaint for lack of subject matter jurisdiction. South Boston Allied War Veterans, 830 F. Supp. at 646-47; see also Brelis & Wong, supra note 178, at 18; Doris S. Wong, U.S. Judge Says Ruling Not Likely on Parade, Boston Globe, Mar. 11, 1993, at 27.

182. South Boston Allied War Veterans Council, 830 F. Supp. at 644-46.

183. Id. at 646-47, 651.

184. Jordana Hart, At Last, a South Boston Parade Anticipation is High But Forecast Wet, Boston Globe, Mar. 28, 1993, at 32.

185. Bob Hohler & Philip Bennett, Abuse, Cheers for Gay Marchers St. Patrick's Day Parade in Damp Draws 200,000, Boston Globe, Mar. 29, 1993, at 13.

186. Id.; see also supra note 157 and accompanying text.

187. Hohler & Bennett, supra note 185, at 13. Mary Bonauto and I walked with our clients on that cold and gray day, more frightened than reassured by the police snipers we could see on rooftops along the entire Parade route, never realizing that it would be the last time we would take part in the Parade.

188. Patricia Nealon, Gay Group, Veterans Begin Testimony in Parade Trial, Boston Globe, Nov. 16, 1993, at 30.

189. GLIB II, 418 Mass. at 241 n.6, 636 N.E.2d at 1295 n.6; GLIB I, 1 Mass. L. Rptr. No. 18 at 371.

190. GLIB I, 1 Mass. L. Rptr. No. 18 at 370; see also Zachary R. Dowdy, Court Bars Exclusion of Gays from Parade, Boston Globe, Dec. 16, 1993, at 81.

191. See supra note 25 and accompanying text.

192. GLIB I, 1 Mass. L. Rptr. No. 18 at 372-73 (concluding that the Parade is a "place" according to the anti-discrimination statute, and that the Parade is a public event).

193. Id. at 371-72. In addition to answering the two key questions, the trial court dismissed GLIB's First Amendment claims because it found no state action regarding the 1993 Parade. Id. at 375-77. The trial court, however, noted that "[t]he City's involvement in the 1992 Parade would present a closer question as to state action," but passed on the question because it was not before the court. Id. at 379 n.16. Furthermore, the trial court found that the City was not liable for aiding and abetting the Veterans Council's discriminatory conduct. Id. at 374. Judge Flannery also dismissed the Veterans Council's First Amendment claims (freedom of speech and association) against the City, but nevertheless ordered that the City remain in the case to ensure effective relief. GLIB I, 1 Mass. L. Rptr. No. 18 at 378.

Much has been made of the fact that GLIB's state action claims against the City of Boston failed. It is important to recognize, however, that state action is not required in discrimination cases. See, e.g., Concord Rod & Gun Club v. Massachusetts Comm'n Against Discrimination, 402 Mass. 716, 524 N.E.2d 1364 (1988). The public accommodations law directly impacts the activities of private citizens, not the government. See, e.g., Lewis v. McColgan, 4 M.D.L.R. 1429 (1982) (taxicab is a place of public accommodation); King v. Hanover Ins. Co., 3 M.D.L.R. 1429 (1981) (noting that an insurance office is a place of public accommodation).

194. GLIB I, 1 Mass. L. Rptr. No. 18 at 379.

195. See supra note 178.

196. GLIB I, 1 Mass. L. Rptr. No. 18 at 379.

197. See John Ellement & Chris Black, SJC Says Gays May March in the Parade: Veterans Threaten to Cancel Event, Boston Globe, Mar. 12, 1994, at 1. The SJC written opinion was issued on July 11, 1994. Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston, 418 Mass. 238, 636 N.E.2d 1293 (1994), cert. granted sub. nom. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 714 (1995), rev'd, 115 S. Ct. 2338 (1995).

198. See Cullen, supra note 8, at 1; Alice Dembner, Pride Follows Parade Fight But Gays Also Fear Backlash on Ruling, Boston Globe, Mar. 13, 1994, at 29; Michael Rezendes, Would-Be Marchers Rap City; Gay Group Grumbles at Mayor's Lack of Contingency Parade Plan, Boston Globe, Mar. 14, 1994, at 13.

199. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 714 (1995).

200. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 2338, 2343 (1995).

201. Id. at 2340-41.

202. See supra notes 152-59, 191-98 and accompanying text.

203. See Hurley, 115 S. Ct. at 2340-41.

204. See generally Perry Educ. Assoc. v. Perry Local Educator's Assoc., 460 U.S. 37, 45 (1983); Shuttlesworth v. Birmingham, 394 U.S. 147, 152 (1969); Cox v. Louisiana, 379 U.S. 536, 554-55 (1967); New York County Bd. of Ancient Order of Hibernians v. Dinkins, 814 F. Supp. 358, 366 (S.D.N.Y. 1993); Invisible Empire of the Knights of the Ku Klux Klan v. Mayor of Thurmont, 700 F. Supp. 281, 286-87 (D. Md. 1988).

205. See cases cited supra note 204.

206. See generally GLIB II, 418 Mass. at 240-41, 636 N.E.2d at 1294-95; GLIB I, 1 Mass. L. Rptr. No. 18 at 372-73.

207. See generally GLIB II, 418 Mass. at 240-41, 636 N.E.2d at 1294-95; GLIB I, 1 Mass. L. Rptr. No. 18 at 372-73.

208. See GLIB II, 418 Mass. at 248-51, 636 N.E.2d at 1298-1300; GLIB I, 1 Mass. L. Rptr. No. 18 at 372-73. Like one's religion, one's sexual orientation may not be known to others unless it is expressed. This does not remove religion from protected status under the anti-discrimination laws. See Mass. Gen. L. ch. 272 §§ 92A, 98 (1994).

209. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984).

210. New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964).

211. See infra part IX.A-G.

212. Hurley, 115 S. Ct. at 2341.

213. See supra notes 46-50, 69 and accompanying text.

214. Hurley, 115 S. Ct. at 2341.

215. See supra notes 46-50 and accompanying text.

216. GLIB I, 1 Mass. L. Rptr. No. 18 at 373-77 (discussing City's involvement in the Parade).

217. See Trial Transcript at A-283, GLIB I (CIV. No. 92-1518) (testimony of Eugene Vaillancourt).

218. See supra note 45 and accompanying text.

219. GLIB I, 1 Mass. L. Rptr. No. 18 at 376; Trial Exhibit 91, GLIB I (CIV. No. 92-1518).

220. Hurley, 115 S. Ct. at 2341.

221. Id. at 2340.

222. See GLIB II, 418 Mass. at 243, 636 N.E.2d at 1295-96; GLIB I, 1 Mass. L. Rptr. No. 18 at 372-73 (finding that the Parade is a public event with which the Veterans Council was entrusted by the City to manage).

223. Hurley, 115 S. Ct. at 2346.

224. GLIB I, 1 Mass. L. Rptr. No. 18 at 371.

225. Hurley, 115 S. Ct. at 2346.

226. It is important to note that the SJC's opinion affirming Judge Flannery's decision also appeared to acknowledge the distinction between GLIB's reason for forming (to march in the Parade) and the group's separate, but related purposes. GLIB II, 418 Mass. at 241-42, 636 N.E.2d at 1295.

GLIB was formed to march in the annual St. Patrick's Day--Evacuation Day Parade . . . . GLIB's purposes [were] 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 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.Id. (footnote omitted).

227. GLIB I, 1 Mass. L. Rptr. No. 18 at 371.

228. Id.

229. See Hurley, 115 S. Ct. at 2345-51.

230. See id. at 2346-48.

231. See Trial Transcript at A-57 to -58, A-113, A-128, GLIB I (CIV. No. 92-1518) (testimony of GLIB members Barbra Kay, Timothy Daley, and Kathleen Finn).

232. See Yackle, supra note 36, at 842-45.

233. Hurley, 225 S. Ct. at 2341.

234. See supra notes 62-71 and accompanying text.

235. See Trial Transcript at A-63 to -74, GLIB I (CIV. No. 92-1518) (testimony of Barbra Kay).

236. GLIB I, 1 Mass. L. Rptr. No. 18 at 373.

237. See supra notes 153-54 and accompanying text.

238. Hurley, 115 S. Ct. at 2347.

239. Id.

240. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (prohibiting exclusion of a female from partnership consideration based on gender); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (prohibiting the use of standardized tests to exclude minorities from job promotions); see also Pregnancy Discrimination Act, 42 U.S.C.A. § 2000e-k (West 1994) (prohibiting discrimination based on pregnancy); Mass. Gen. L. ch. 151B, § 4 (1994) (prohibiting employment discrimination based on status).

241. See 1993 Official Roster, supra note 59; 1992 Official Roster, supra note 45.

242. See 1993 Official Roster, supra note 59; 1992 Official Roster, supra note 45.

243. Hurley, 115 S. Ct. at 2347.

244. Id.

245. Id. at 2343, 2347.

246. GLIB II, 418 Mass. at 238 n.1, 636 N.E.2d at 1293 n.1.

247. For a discussion of the historic significance and unique public character of the Parade, see GLIB I, 1 Mass. L. Rptr. No. 18 at 373; supra part III.

248. See GLIB I, 1 Mass. L. Rptr. No. 18 at 373 (noting the historical aspects of the Parade--that it is a holiday in Suffolk County, and is the largest Irish-American event in New England).

249. Hurley, 115 S. Ct. at 2349 (citations omitted) (quoting Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2466 (1994)).

250. In fact, GLIB participated in the June 1993 Dorchester Day Parade. GLIB I, 1 Mass. L. Rptr. No. 18 at 371.

251. See GLIB II, 418 Mass. at 250 n.18, 636 N.E.2d at 1299 n.18.

We note also that we uphold the findings and rulings of the judge based on the record before us, particularly the history and nature of the Parade here in issue. We do not suggest that every parade is nonexpressive or that every parade is necessarily a place of public accommodation. Rather, we base our conclusions on the unique nature of the facts found as to the parade in controversy.Id.

252. GLIB I, 1 Mass. L. Rptr. No. 18 at 373.

253. See South Boston Allied War Veterans Council v. City of Boston, 875 F. Supp. 891, 920 (D. Mass. 1995).

254. See Hurley, 115 S. Ct. at 2347.

255. See id. at 2346.

256. See Brown v. Board of Educ., 347 U.S. 483 (1954).

257. See Hurley, 115 S. Ct. at 2347-48.

258. Id. at 2348 (emphasis added).

259. Id.

260. Id.

261. New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988).

262. Id. at 12.

It may well be that a considerable amount of private or intimate association occurs in such a setting, as is also true in many restaurants and other places of public accommodation, but that fact alone does not afford the entity as a whole any constitutional immunity to practice discrimination when the government has barred it from doing so.

Id. (citing Hishon v. King & Spalding, 467 U.S. 69, 78 (1984)).

263. United States v. Ballard, 322 U.S. 78, 87-88 (1944) (holding that courts may properly test sincerity of First Amendment claim, but not the "truth" of the content of claimed protected speech).

264. See Laurence H. Tribe, American Constitutional Law § 14-6, at 1181 n.14 (2d ed. 1988).

265. Id. § 14-12. Once the claimant has shown that his or her beliefs are sincerely held, he or she must also show that these beliefs "conflict with, and thus [are] burdened by, the state requirement." Id.

266. See generally Roberts v. United States Jaycees, 468 U.S. 609 (1984).

267. Id. at 623 ("The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." (citing Brown v. Socialist Workers `74 Campaign Comm., 459 U.S. 87, 91-92 (1982); Democratic Party of the United States v. Wisconsin, 450 U.S. 107, 124 (1981); Buckley v. Valeo, 424 U.S. 1, 25 (1976); American Party of Texas v. White, 415 U.S. 767, 780-81 (1974); NAACP v. Button, 371 U.S. 415, 438 (1963); Shelton v. Tucker, 364 U.S. 479, 486, 488 (1960))).

268. See New York State Club Ass'n v. City of New York, 487 U.S. 1, 13 (1988).

"Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly." This is not to say, however, that in every setting in which individuals exercise some discrimination in choosing associates, their selective process of inclusion and exclusion is protected by the Constitution.

Id. (citation omitted) (citing Hishon v. King & Spalding, 467 U.S. 69, 78 (1984); Norwood v. Harrison, 413 U.S. 455, 470 (1973); Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93-94 (1945)).

269. See Wisconsin v. Yoder, 406 U.S. 205, 222-29, 235-36 (1972); United States v. Ballard, 322 U.S. 78, 86-88 (1944).

270. See GLIB II, 418 Mass. at 249-51, 636 N.E.2d at 1298-1300; GLIB I, 1 Mass. L. Rptr. No. 18 at 378.

271. See GLIB II, 418 Mass. at 243-44, 636 N.E.2d at 1296; GLIB I, 1 Mass. L. Rptr. No. 18 at 372-74.

272. Judge Flannery recognized these shifting explanations as classic evidence of discriminatory intent. See GLIB I, 1 Mass. L. Rptr. No. 18 at 372.

273. See GLIB II, 418 Mass. at 251, 636 N.E.2d at 1300; GLIB I, 1 Mass. L. Rptr. No. 18 at 372-73.

274. See Hurley, 115 S. Ct. at 2345.

275. See United States v. Clarksdale King & Anderson Co., 288 F. Supp. 792, 794-95 (N.D. Miss. 1965).

276. The Court simply noted that the "First Amendment protection [does not] require a speaker to generate, as an original matter, each item featured in the communication." Hurley, 115 S. Ct. at 2345.

277. This is, essentially, what the trial court found. GLIB I, 1 Mass. L. Rptr. No. 18 at 373, 377-78.

278. See supra part IX.A-F.

279. See Hurley, 115 S. Ct. at 2346, 2348.

280. New York County Bd. of Ancient Order of Hibernians v. Dinkins, 814 F. Supp. 358, 366 (S.D.N.Y. 1993).

281. Id. at 368-69.

282. See Hurley, 115 S. Ct. at 2345.

283. Id.

284. See id.