Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston

• What was the main problem ?
• What was the answer ?

• The wills of GLIB members
• Effects over time

• Saint patrick's day celebration
• A wish to celebrate
• A refusal by the Veterans' Council

The St Patrick's Day, on March 17, remembers one of Ireland’s patron saints, St Patrick. It largely celebrates Irish American culture in the United States. Although St. Patrick's Day isn’t a public holiday, businesses and schools may be closed because it falls on the same date as Evacuation Days. Celebrations concentrate on Irish themed parties, drinks, and food. Many people get into the spirit by dressing in green clothing and eating green coloured food. Irish clubs and pubs often hold parties or have special deals. Large street parades mark St Patrick's Day in places and towns.

First time GLIB was refused to march in the parade

Glib again refused by the Council to participate

Glib obtained a state-Court order to include its contingent by the Council

April 25 => Supreme Court, Massachusetts was argued

June 19 => decision

• Massachusetts State Court
• GLIB members
• Free speech Rights

1

• It did violate the Council’s free speech rights
• A private parade
• Importance of the 1st and the 14th amendments

14

Did Massachusetts State Court’s mandate to Boston’s veterans’ Council’s requiring it to include GLIB members in its parade, violate the Council's free speech rights as protected by the First and Fourteenth Amendments?

1st Amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.

14th Amendment: “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law”.

The Supreme Court unanimously held that it did violate the Council’s free speech rights as protected by the said Amendments.

The first amendment, which protects people’s freedom of speech, and the fourteenth which states that no state shall “deprive any person of life, liberty, or property, without due process of law”, both can be interpreted as protecting the members of the council’s right to choose which message the wish to convey in their parade.

Boston’s veterans’ Council is the organizer of the parade and, despite Massachusetts newly passed (at that time) law forbidding “discrimination on the basis of sexual orientation in a place of public accommodation”, it wasn’t in the State Court’s power to strip them from their right to choose their own message.

According to the Supreme Court, such an action “violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say”.

The Irish-American Gay, Lesbian and Bisexual Group of Boston, also known as GLIB, argued that denying them access to the parade as a group was discriminating against them as individuals and that in doing so based on their sexual orientation, the Council went directly against Massachusetts law against discrimination, seeing the parade as a public space as it passed through town.

Therefore, the Supreme Court held that the Council could indeed exclude the GLIB from the parade, as they were just choosing the message they wished to convey as a private group, which they had a right to do thanks to the free speech rights protected by the first and fourteenth amendments, going against the first two judicial decisions.

But the Supreme Court instead argued that although the itinerary was indeed going through town, it was still a private parade, with a permit to march in the public space. Also, as a private parade, they had the right to choose which message they wished and, subsequently which one they didn’t want associated with them.

1. Steven
2. Ginsburg
3. Souter
4. Breyer

1. Thomas
2. Scalia
3. Rehnquist
4. Kennedy
5. O'Connor

• Incitement to their own hate
• Age gap not "open minded"
• First and fourteenth amendments

• Compared to the KKK
• Obtained a permanent injunction against Council
• Cancelled the next St Patrick's Day

It should be recalled that the Court decided that the GLIB group's parade in the St. Patrick's Day celebration was an incitement to their own discrimination. Indeed, it was the generational gap that was evoked in terms of not being open-minded. The following year when the GLIB group wanted to march in the parade again by explaining that their argument was valid and constitutional under the first and fourteenth amendments.

Mayor Marty Walsh

Furthermore, we can also recall that some groups have already been banned from parading, such as the KU KLUX KLAN. But the GLIB protested that sexual orientation could not be compared to a racial hate group. The GLIBs then obtained a permanent injunction against Council in December 1993. In protest, the Council cancelled the 1994 St Patrick's Day celebrations.

It was not until 2015 that the Veterans' Council allowed the GLIBs to participate in the parade. At the parade Mayor Marty Walsh participated in the festivities and made inclusive remarks towards the LGBTQ+ (formerly GLIB) community. This was to affirm a shift in collective thinking and the somewhat late evolution of morals. It was the first time in over 20 years that the Mayor of Boston had taken a frank stance on the dispute.

But in 2017, LGBTQ+ people were banned again before being reinstated in the parade a few days later.

Dale v. Boy Scouts

The Hurley decision was revisited five years later in Boy Scouts of America v. Dale. In that case, the New Jersey courts, like the Massachusetts courts in Hurley, held that the Boy Scouts were providing a service under the state's public accommodations law, which prohibits discrimination based on sexual orientation. The association could not avoid the law by invoking its "expressive" nature, because the presence of gay scouts in its ranks did not require it to change the content of its speech. They therefore ordered James Dale's reinstatement after he was expelled for being openly gay. The US Supreme Court, by a narrow 5-4 majority, rejected their analysis, ruling that "Dale's presence forces the organisation to send at least one message to its young members and to the world that it accepts homosexual practices as legitimate.

The Dale decision relies on an analogy with the Boston parade. But Dale, more than Hurley, represents an important step forward in the scope of the principle of speaker autonomy. Until then, in order to discriminate, an association had to prove that it was expressing a message (step 1), that the forced inclusion of new members would alter the content of its message (step 2) and that its freedom of expression outweighed the general interest pursued by the prohibition of discrimination (step 3). This test, developed to analyse the refusal of men's associations to accept women into their membership, had always been applied severely by the Court, with the result that no association had been successful. In Dale, however, in a deferential rule that is completely unprecedented in the litigation of exemption claims based on "expressive" freedom of association, the Court deferred to the association's self-definition of the content of its own message and the risks of alteration that it ran. It also refrained from weighing the Boy Scouts' freedom of expression against the objectives pursued by non-discrimination law.

• UROFSKY Melvin L. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc. [website]. The Editors of Encyclopedia Britannica [27th of March 2022] https://www.britannica.com/event/Hurley-v-Irish-American-Gay-Lesbian-and-Bisexual-Group-of-Boston-Inc Oyez [website] Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. [27th of March 2022]
• https://www.oyez.org/cases/1994/94-749 Justicia U.S Supreme Court [website]. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. 515 U.S 557 (1995)[27th of March 2022]
• https://supreme.justia.com/cases/federal/us/515/557/ GLUCK MEZEY Susan. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. [website]. Encyclopedia, 2009 [27th of March 2022]
• https://www.mtsu.edu/first-amendment/article/65/hurley-v-irish-american-gay-lesbian-and-bisexual-group-of-boston Quimbee. Hurley v. Irish American Gay, Lesbian & Bisexual Group of Boston Case Summary |Law Case Explained [online video]. YouTube, the 23rd of February 2021 [seen on the 27th of March 2022]
• https://www.youtube.com/watch?v=drZbCZlh