515 U.S. 557 (1995), argued 25 Apr. 1995, decided 19 June 1995 by a vote of 9 to 0; Souter for a unanimous Court. At issue in Hurley was whether the sponsors of the Boston St. Patrick's Day parade could prohibit the display of banners identifying the marchers carrying them as Irish gay men, lesbians, and bisexuals.
The St. Patrick's Day parade is an annual tradition in South Boston, an enclave of middle‐ and working‐class Irish‐American families (pop. 38,000). Sponsored by the South Boston Allied War Veterans Council, a private nonprofit group, the parade also celebrates Evacuation Day, which commemorates the post–Revolutionary War departure of defeated British troops. In 1992, after gay rights organizations in New York City attempted to join the parade there, the Irish‐American Gay, Lesbian and Bisexual Group of Boston (GLIB) was founded to support the New York efforts and to join the St. Patrick's Day observances in Boston. Denied permission to march by Veterans Council group leader, John “Wacko” Hurley, GLIB contested its parade prohibition in Massachusetts state courts. Massachusetts law prohibits discrimination against homosexuals in employment, housing, and “any place of public accommodation, resort, or amusement.” Massachusetts' Supreme Judicial Court (SJC) held that the parade was a public accommodation and thus the Veterans Council could not deny GLIB permission to march.
The SJC's ruling prompted Hurley to cancel the 1994 parade, arguing that this was his group's way of overruling the courts. In 1995 the parade was technically canceled, although a “protest march” against the court's ruling was held on 17 March. One month after the protest march, the case came before the United States Supreme Court for argument.
In a unanimous decision, the Court determined that to require the parade organizers to permit GLIB to march as a group with identifying banners violated the parade organizers' First Amendment right to free speech. Justice David Souter wrote that a parade is an instance of speech, a communicative event, and not a public accommodation to which a denial of access constituted an act of discrimination. The Court also noted that the parade organizers did not exclude homosexuals as such, not inquiring about the sexual orientation of marchers within approved parade units. Instead, the Veterans Council objected to GLIB as its own parade unit carrying its own banner. According to the Court, the exclusion of GLIB as a unit amounted to a speaker choosing his or her own message, which includes the “important manifestation of the principle of free speech … that one who chooses to speak may also decide ‘what not to say.’” (p. 573) The Massachusetts courts' broad definition of the term public accommodation, therefore, infringed the right of free speech.
GLIB might have prevailed in this case had it been able to prove that the city was involved in running the parade. Souter noted that the city had run the parade until 1947 when it delegated the organizational responsibility to a private group. Although GLIB had attempted to make an argument that the parade was still linked to official city activities and thus the organizers' decision amounted to state action, this claim was rejected in the state courts.
— Erin Ackerman
