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Saturday, March 15, 2014

Where are they now, St. Patrick's Day Edition

(or Winning by losing and losing by winning)

In 1995, SCOTUS unanimously held that the private organizers of Boston's St. Patrick's Day Parade (a group called the Allied Veterans' War Council) had a First Amendment right to exclude LGBTQ groups from the parade. That decision laid some important free-speech groundwork, particularly in the idea that speech need not have a particularized message to enjoy constitutional protection (citing to works such as Pollock, Schoenberg, and Carroll's Jabberwocky). Although the gay-rights position lost, many advocates appreciated the opinion for (arguably for the first time) speaking in generally positive (or at least not harshly negative) terms about homosexuality.

Fast forward two decades. That same organization, armed with a First Amendment right to exclude, still runs the parade. But it is facing increasing political and economic pressure to allow some LGBTQ groups into the parade. The group had been negotiating to allow in the LGBT  Veterans for Equality, although those stalled last week, with AVWC accusing a gay rights group of creating an ersatz veterans' group as a "Trojan Horse" to sneak into the parade. Now numerous corporate sponsors of the parade--including Gillette and Boston Beer Co. (makers of Sam Adams)--have withdrawn as parade sponsors.

So the AVWC has its constitutional rights. But so do other people and entities and they are exercising them in a very different direction and in support of very different ideas than they were in 1995. And so that hard-won constitutional victory may end up somewhat empty.

Posted by Howard Wasserman on March 15, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink


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Excluding a gay rights group from an event that celebrates an ethnic group would be anti-gay any more than excluding the NRA would be anti-gun.

I would not expect a gay pride parade's exclusion of, for example, Greenpeace or the LaRouche PAC or the Cato Institute or Occupy Wall Street to mean opposition to what those particular groups stand for. It would simply mean that they, regardless of individual participant's beleifs, want to take a neutral stance as a group.

Posted by: Michael Ejercito | Mar 18, 2014 10:06:21 PM

Instead of empty, maybe it would have been better to say "Pyrrhic." While winning, they lost (if not this year or immediately, than perhaps going forward) the financial and practical ability to continue to put on the parade while excluding LGBTQ groups.

Posted by: Howard Wasserman | Mar 16, 2014 10:14:29 AM

I'm not entirely sure what you mean by the last sentence. How is it "somewhat empty" for this private group to retain lots of rights to exclude people they don't like -- and for the rest of us, and apparently some large corporations as well, to exercise our own rights not to associate with the AVWC and their anti-gay message?

This doesn't seem "empty" to me. The only perspective from which it might seem "empty" (as far as I can tell) is if what AWVC wanted was to have their cake and eat it too (to keep out gay people AND yet at the same time, not to be viewed as bigots by those who think it's bigoted to keep out gay people).

Posted by: Joey | Mar 15, 2014 9:28:07 PM

"Although the gay-rights position lost, many advocates appreciated the opinion for (arguably for the first time) speaking in generally positive (or at least not harshly negative) terms about homosexuality."

A not facetious statement.

Posted by: Joe | Mar 15, 2014 11:03:58 AM

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