High Court to Consider Parade Gay Ban : Judiciary: A Boston group is asking to prevent gays from joining in their St. Patrick’s Day festivities. The case presents a test of the First Amendment.
The Supreme Court, agreeing to hear a challenge to what Boston war veterans called a “state orthodoxy . . . where only politically correct speech is permissible,” said Friday that it would rule on whether they have a free-speech right to prevent gays from marching in their St. Patrick’s Day parade.
The case, to be heard in the spring, presents both a clash of cultures and a clash over the meaning of the First Amendment. While the veterans maintain that a parade is a classic exercise of free speech, the gays say that a public event on a city street should be open to all.
The court also said Friday that it will consider a far-reaching challenge to the scope of the Endangered Species Act. If the justices uphold a lower court ruling, the act would no longer be interpreted to protect the habitat of threatened species, such as the spotted owl.
The battle between veterans and gays over the St. Patrick’s Day parade has arisen in both Boston and New York City.
In New York, a federal judge ruled in 1993 that the city’s Ancient Order of Hibernians had a free-speech right to exclude gay marchers--a decision that prompted many city officials to march with gays in a separate parade.
But last year, Massachusetts courts in came to the opposite conclusion.
For decades, the South Boston Allied War Veterans Council has sponsored the annual parade to celebrate their members’ Irish heritage and to commemorate the British evacuation of Boston on March 17, 1776.
In 1992, three women formed the Irish-American Gay, Lesbian and Bisexual Group and petitioned to march in the parade to show the “diversity” of the community.
The veterans refused and said they had a right to exclude those whose message was “antithetical” to theirs.
But the Massachusetts Supreme Judicial Court said the parade was a kind of “public accommodation,” like a hotel or restaurant, subject to state regulation. Since state law forbids discrimination based on sexual orientation, the veterans may not exclude gays, the court said.
In response, the veterans canceled their parade and appealed to the Supreme Court. If marchers can be required to include those with conflicting messages, “the National Socialist Party could conceivably be ordered to be included in a ‘Salute to Israel Parade,’ the (Ku Klux Klan) in a private civil rights celebration honoring Martin Luther King and ACT-UP in a religious procession,” they said.
The justices voted to hear the veterans’ appeal in Hurley vs. Irish-American Gay, Lesbian and Bisexual Group of Boston, 94-749, and set arguments for April.
The Endangered Species Act case challenges a government interpretation that has prevailed for more than 20 years. The government has held that the law bars not only the killing of an endangered animal but also forbids a “significant habitat modification” in areas where the animal lives.
The regulation has given a federal judge in Seattle the power to block logging in forests where the rare spotted owl resides. Federal officials also have used the regulation in scores of cases to force landowners to limit development.
But in March, the timber industry won a victory when the U.S. Circuit Court of Appeals for the District of Columbia rejected the regulation as exceeding the language of the law. On a 2-1 vote, the appeals court said the law applies only to killing or harming a threatened species, not to changing its habitat.
Lawyers for the Clinton Administration appealed, contending that the ruling could hurt enforcement.
“The cutting of a nest tree in which an endangered species dwells and breeds can effectively kill the bird, regardless of whether the bird is at home when the tree falls,” U.S. Solicitor Gen. Drew S. Days III told the court.
A ruling in the case (Bruce Babbitt vs. Sweet Home Chapter for a Great Oregon, 94-859) is due by July. The outcome could affect millions of acres of private land.
Environmentalists consider the case a major threat for two reasons.
The high court, pushed by Justice Antonin Scalia, has been increasingly inclined to rely on a literal reading of the law, rather than heeding its general intent. In this case, timber industry lawyers say that the Endangered Species Act makes it illegal to “harass, harm, pursue, hunt, wound, kill, trap, capture or collect” an endangered animal, but it says nothing about protecting their habitat.
Environmentalists also are concerned because Republican leaders in Congress are promising to roll back regulations that curtail property rights.