St Patrick's parade ban - 30 June 1995

I was up in Boston the day the United States Supreme Court made a ruling, which scandalised some people and delighted the rest about the armed service veterans who organised the annual parade through the streets on St. Patrick's Day.

In that old city, the place where the American Revolution began, there is by now a fine stew of types and immigrant nationalities: Czechs, Italians, Russians, French, Canadians, some survivors of the original Anglos who founded the colony and sparked the revolution, though we're a dwindling lot – in New York City, the wasps, the white Anglo Saxon Protestants, practicing or not, compose exactly 6.2 per cent of the population. Talk about a minority!

However, I was saying that although Boston is a fine racial mixture, the Irish are, how shall I put it, the lawyers would say controlling… not quite. But in the second half of this century they have disputed and overcome the political dominance of the old colonial families, the Cabots and Lowells and Lodges and Saltonstalls, these old wasps may still recite nostalgically the old rhyme: "Behold this good old Boston, the home of the bean and the cod, where the Lowells talk only to Cabots and the Cabots talk only to God," their day is done. By the 1960s, Massachusetts was most powerfully represented in Congress, no longer by Republicans named Lodge and Saltonstalls, but by Democrats named McCormack and O'Neil and Kennedy, so you can imagine the St. Patrick's Day parade is the biggest and grandest most boisterous parade of the year. It has been more boisterous, not violent but bubbling with friction and tensions since 1992. In that year, a new group, and mark that word 'group', it turned out to be decisive in the Supreme Courts decision – a new group appeared marching alongside the veterans and waving a banner with the strange device: Irish-American Gay, Lesbian and Bisexual Group of Boston. They appeared over the strenuous protest of the veterans and their organiser John 'Wacko' Hurley.

Any other group wanting to march in the city's parade: the Irish American high school bands, the bartenders of the old sod, any group has to apply to the organisers and this the homosexuals did and John 'Wacko' Hurley turned them down. Whereupon they went to court putting on the docket for the first time the case of Hurley versus Irish-American Gay and Bisexual Group of Boston Massachusetts – notice the plaintiff is an individual. The US Supreme Court does not adjudicate between state law and federal law or two warring corporations, its job is to decide whether the constitutional rights of an individual have been violated or abridged. Thus, the case that made segregation unconstitutional across the country was called Brown versus Board of Education: Brown was an eight year old little girl.

So in the case of the Boston homosexuals and bisexuals, after they'd marched in 1992 and 93, the veterans, the organisers of the parade cancelled the one for 1994, did you ever hear of such a thing? No St. Patrick's Day parade?

The following month, the judge who'd allowed the gay group into the parade, was upheld by the Massachusetts State Supreme Court, the crucial opinion, written incidentally by an Irishman said: "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 the parade." Plainly the state courts saw the issue as one of minority discrimination. Of course John 'Wacko' Hurley and his veterans did not bow down and give up. They took the case onwards and upwards to the United States Supreme Court, which overrode and overruled the Massachusetts Supreme Court in the most interesting and decisive way.

The Supreme Court said that the South Boston veterans group had every right to bar the applicants on the issue, not of discrimination, but on the first amendment, namely the guarantee of freedom of speech. Wait a minute I can hear some people say, the court was upholding the principle of free speech by denying it to homosexuals and bisexuals? Yes, as a group. I better say at once that this was not, as so many rulings unfortunately are these days, a five to four decision. It always strikes me as unfortunate to say the least that in this country, some of the most vital questions of a democratic society come down in the end to the opinion of one person, the one who splits the vote, the tie vote of four to four.

The US Supreme Courts ruling on the veterans appeal was unanimous: nine to nothing, very rare and for once the justice who wrote what is usually called the majority opinion spoke for all of them. Parades, wrote Justice Souter, are a form of expression, in this case, an expression of the beliefs of the Irish American veterans, a private organisation. The Massachusetts State Court had said that a parade was in the legal definition, a public accommodation. In many other appeals against discrimination, if public accommodation is proved, that's to say if a club occupies public land or uses public equipment or services, then its own membership must be open to the public without regard to race, religion and colour, whatever.

That was the dividing point between Massachusetts and the US Supreme Court. As a private organisation, Justice Souter said, they could not bar any one person, they couldn't for instance bar homosexuals or bisexuals for marching in their parade as individuals, but if the gays organised their own group, marched as a group, and carried their own group message, they were in effect conflicting with the private group by stressing a message that the organisers don't wish to convey. Justice Souter scolded the Massachusetts Court by saying that the state, the commonwealth and Massachusetts, if it disapproves of a private person's statement, has no legitimate power to compel that speaker to alter his message by including one more acceptable to others. In pithier words a famous Massachusetts congressman said about the judgement: "The point is no one said what the parade organisers did was right only that it was constitutional. The beauty of the constitution is that a lot of things that aren't right are constitutional. Freedom of expression includes the right to be bigoted." A handsome concession from Congressman Barney Frank who is himself a declared gay.

So the night after the court spoke, South Boston was for the most part a merry Irish compound, gay in the old sense but there was no disturbance, no nasty run-ins with the police and, most remarkably I think, no reported ugly baiting of gays in bars and saloons. As you can guess this unanimous judgement by its very unanimity is bound to affect other cities far and wide. New York for instance has expected trouble every St. Patrick's Day but luckily has had little of it, and the question now in the light of this judgement: is the New York City parade a public accommodation or a private march? Most New Yorkers now feel confident it will be declared to be private since it is organised by the ancient order of Hibernians. And the boy scouts of America have taken aid and comfort from the Souter ruling: they exclude atheists and the openly gay and now believe they can go on doing so, in light of the Constitution, which Congressman Frank wisely warned us can sanctify bigotry when it's an expression of free speech, a reminder of Justice Holmes's unpleasant truth, that freedom of speech means freedom for the speech we loathe.

And who is this Justice David Souter? He was chosen by President Bush to replace the retiring arch liberal Justice Brennan and though every president says he picks a judge not to make laws, but to say if they're constitutional, every president picks judges who are thought to share his political bias. Franklin Roosevelt was so fed up with the conservative rulings of the Supreme Court in his second term, he decided to set a retirement age and also to increase the size of the court and pack it with fine objective unbiased New Dealers. The court itself slapped him down on that one. Well David Souter is 55 and Yankee, a New Hampshire countryman, a bachelor, a churchman, unassuming, scholarly, former state attorney and appeals court judge. I believe this is the first case in which he's written the majority opinion. Most of the time though, he's been the fifth man who turned a tied vote into the conservative mainstream. He's had over a year to ponder the Boston parade decision and trial lawyers who are hot for gay rights think this judgement is correct. And that thought irresistibly recalls the practice of the great Justice Holmes who when he went onto the court in 1902, heard the arguments of both sides, along with the other justices, and if he'd been chosen to write the court's opinion, went home and wrote it at once, and at the earliest opportunity delivered it to the court. He soon found out that his colleagues began to mutter that he was brilliant but superficial.

If ever there was a non superficial jurist in the English speaking world, Holmes was it, so after a year or two he followed the same habit and the same rapt attentiveness to the arguments, and if he was designated to write the majority opinion he went home and as usual immediately wrote it, but then he slipped it into a bottom drawer of his desk, and he left it there for months till he was required to deliver it to the court. When he did so, by that time, everyone agreed that no more profound ruling had ever been handed down by the court. Later in life, Holmes, recalling this amendment of his habits said: "He found it better to let his opinions age in the wood".

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