High court weighs right to bar gays from events

April 26, 1995|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court moved cautiously yesterday to explore whether gays and lesbians may be kept out of public events -- such as a civic parade -- merely because they say they are homosexual.

In a one-hour hearing growing out of a years-long dispute over who may take part in an annual St. Patrick's Day parade in South Boston, similar to a continuing fight in New York City, the justices found that the constitutional issue over competing free speech rights is not a simple one.

Even Justice John Paul Stevens, a liberal member of the court who strongly supports broad First Amendment rights, commented: "I'm wrestling with this."

The constitutional issue, it appeared, may force the court to delve into the delicate question of whether a gay or lesbian may identify his or her sexual nature in a public setting without being penalized on the premise that he or she was trying to foist homosexuality upon others.

Justice Antonin Scalia insisted repeatedly that any time a gay man or lesbian declares himself or herself in public to be homosexual, that is an attempt to proclaim "an expression of pride" in being homosexual -- a message he said some organizers of parades or other civic events may not want to endorse by having it put on display in their line of march.

But John Ward, a Boston lawyer, tried to persuade the justices that it is as wrong under the Constitution to banish homosexuals from public events "for who they are" as it would be to do so with blacks.

He said that when Linda Brown, the young black Topeka girl whose case led to the court's famous desegregation ruling in 1954, tried to enter a white public school, her presence "was expressive" but that was not why she was kept out. Gays and lesbians, he said, were being kept out of the South Boston parade merely for showing up and saying who they are.

Merely saying that one is gay or lesbian -- "self-identifying" -- should not be understood as an attempt to force a homosexual message on anyone, Mr. Ward contended. In the St. Patrick's Day parade, he said, other groups -- such as Baptists -- are allowed to join in even if they "self-identify," and homosexuals should be treated no differently, he said.

He conceded that gay rights messages -- as a way of making a public statement -- could be kept out of parades if that does not fit the theme given to the event by its organizers. For example, he said, homosexual marchers could be barred from holding up signs that say "Gay Is Good."

If the organizers want to convey a message with their parade, they can do that, but they cannot go further and keep out individuals who would like to join and simply want to say who they are, Mr. Ward argued. In the South Boston parade, he said, the organizers had no special message to convey by their parade, so they should not be allowed to claim that they were being forced to sponsor another message merely by letting in all who wish to participate.

But the parade organizer's lawyer, Chester Darling of Boston, argued that the private sponsors were being forced by a state court to allow homosexuals to march even when it is clear that they are sending a pro-homosexuality message -- contrary to the moral and Roman Catholic religious views of the planners.

When Justice John Paul Stevens recalled that the planners had let Baptists take part, Mr. Darling said the parade "was ecumenical." Countered Justice Stevens: "Ecumenical, up to a point."

Mr. Darling did seem to attract some sympathy among the justices for his central theme that the Massachusetts courts were compelling the march to have a partial homosexuality theme. "They are compelling the organizers to voice a message, or remain silent," he argued.

Justice Sandra Day O'Connor seemed to have that point in mind later when she remarke-d that the situation in South Boston may be no different than the organizers of a circus parade wishing not to be forced to include animal rights activists as protesters within the line of march.

Justice Anthony M. Kennedy also suggested that the First Amendment would be violated if a state court were to tell the organizers of a St. Patrick's Day parade how they must celebrate that day. The justice also commented that organizers of a parade who have their own message to convey "are entitled to maintain the purity" of that message.

A final decision is expected by early summer.

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