New York City’s Saint Patrick’s Day parade dates back to 1766, when Irish soldiers serving in the British army organized “a parade of sorts … including fife and drums at dawn.” Today the parade maintains an air of militarism, its ranks swelled by uniformed police officers, as well as firefighters. They march to express ethnic pride, or so one assumes. But ethnic pride can be a form of tribalism, and tribalism has a dark side: ethnic (or religious) bias. New York's St. Patrick’s Day parade excludes identifiable Irish gay and lesbian groups, and GLBT rights advocates regard the participation of uniformed officers as official discrimination.
“The presence of uniformed police and firefighters in such a procession sends a clear signal to LGBTQ New Yorkers that these personnel, who are charged with serving and protecting all New Yorkers, do not respect the lives or safety of LGBT people,” a coalition of organizations, individuals, and public officials recently asserted in a public letter to Mayor DeBlasio.
They characterized the participation of uniformed officers as a violation of the City’s Human Rights Law (although its application here is unclear), and they asked the mayor “to direct all City departments not to organize marchers for or allow personnel to participate in this anti-LGBTQ procession either in uniform or with any banner that identifies them with the City.”
De Blasio has already directed himself not to march, citing the exclusion of gay and lesbian groups. But his power to ban uniformed personnel from participating is questionable at best, unless he bans all personnel from participating in all private parades, in uniform or with any official banner. If De Blasio cedes to the demands of LGBTQ advocates in this instance, he’ll invite a federal lawsuit, which he’ll probably lose.
If the immorality of discriminating against LGBTQ groups seems clear (at least to the Mayor and other LGBTQ advocates), the legalities are complicated, involving the interplay of private speech and associational rights and public obligations to ensure equality. The complications are familiar to federal courts.
First, consider the First Amendment rights of St. Patrick’s Day parade organizers to exclude LGBTQ groups, or others with whom they don’t wish to associate. In 1995, in Hurley v Irish American Gay Lesbian Bi-Sexual Group, a unanimous Supreme Court upheld the exclusion of a gay and lesbian group from the Boston parade, overturning a state court decision that ordered the group’s inclusion, under a state anti-discrimination law. Justice Souter’s opinion in Hurley confirmed what was constitutionally obvious—that a parade is “a form of expression,” as the Court had previous recognized in cases involved protest marches.
Every identity group participating in a parade “affects the message conveyed by the private organizers,” which means that an official order requiring inclusion of a group that organizers prefer to exclude is a fundamental violation of their right to say what they choose according to the dictates of their collective conscience. Organizers of a gay pride parade, for example, have an essential right to exclude identifiably homophobic groups.