Hurley v. Irish American GLIB Association - Oral Argument

Argument of Chester Darling

Chief Justice Rehnquist: We'll hear argument first this morning in Number 94-749, John J. Hurley and the South Boston Allied War Veterans Council v. the Irish-American Gay, Lesbian and Bisexual Group of Boston.

Mr. Darling.

Mr. Darling: Mr. Chief Justice, and may it please the Court:

The central issue in this case is whether Government can mandate the expression of messages and viewpoints in a privately organized parade over the objections of the private organizers.

After ordering the respondent, the Irish-American Lesbian, Bisexual, and Gay Group of Boston, into the 1992 and 1993 parades, and after a hearing before a trial court, a judgment issued and was affirmed by the supreme judicial court of Massachusetts, and in that judgment the supreme judicial court upheld a statement and declaration by the trial court that a proper celebration of St. Patrick's and Evacuation Day requires diversity and inclusiveness.

This pronouncement reflects only one of the plain errors and misapplications of well-settled law that requires reversal and a vacation in this action.

The Veterans Council clearly stated what the expressive purpose of their parades were.

They announced during trial and prior to their application, filing their application itself, that they wished to celebrate their traditional religious and social values.

Chief Justice Rehnquist: Well, Mr. Darling, my recollection is that the trial justice in this case made a finding that that was not... that based partly on his, I guess, disbelief of one of the witnesses, or doubt about the witness' credibility, this was not kind of an idea-centered parade.

Mr. Darling: Your Honor, the facts in this case, where we have raised a claim, a First Amendment claim, and where the expressions of my client have been altered, we're asking that strict scrutiny be applied.

If that is done, then it will be seen that there were no facts at all to support any conclusion that my clients either discriminated or were conducting anything other than their own celebratory parade.

Chief Justice Rehnquist: Well, you're entitled to more careful review on a First Amendment factual issue, certainly, than otherwise, but still credibility issues have been traditionally for the trier of fact, even in that area.

Mr. Darling: Mr. Chief Justice, as far as the credibility of Mr. Hurley was concerned, that related to testimony that he gave in response to questions asking at what stage did they reject and why did they reject the group as a marching unit.

Justice Kennedy: But the Chief Justice's question interests me also.

What is the evidence to show that the purpose of this parade was to express any viewpoint?

Mr. Darling: The parade is inherently expressive, Justice--

Justice Kennedy: Well, do you want us to make a finding, than, that a parade is per se an expressive activity?

Mr. Darling: --Yes, I do, Your Honor, and--

Justice Kennedy: Does your case depend on that?

Mr. Darling: --No, sir, but what follows is that unless my clients or future parade applicants receive the protection of this Court they will be exposed to the injunction and the onerous terms that have been applied by both the trial court and affirmed by the supreme judicial court in compelling them to either voice a message that's mandated by the State or remain silent, or in order to modify the injunction, to return to the court with hat in hand asking if their speech finally met the focus and diversity and inclusiveness that this case mandates in my client's First Amendment parades.

Justice Souter: Mr. Darling, you've answered, I guess, two questions, and I want to make sure that you stand by the answer in each one, and I want you to comment again on the relevance of each one.

The first is you, I think you told Justice Kennedy not only that the parade was expressive in its nature... I guess all parades are in your view... but that that was crucial to your case.

You also said that the particular message, the viewpoint, if you will, was generally a celebration of religious and social values of Irish Catholics.

Is that viewpoint crucial, the existence of that viewpoint as the expression conveyed by the parade, crucial to your case?

Mr. Darling: I would think not, Justice Souter.

Justice Souter: Okay.

Mr. Darling: The fact that any parade is inherently expressive, coupled with the fact that realistically nowadays people make applications for parade permits, as has been done in this case--

Justice Souter: May I just interrupt you and get to another point?

You're saying that your viewpoint is not essential to your case, and I take it you're saying it's not essential to your case that your parade have any viewpoint at all.

Mr. Darling: --That's correct.

Justice Souter: But is it essential to your case that the parade be expressive?

Mr. Darling: No, it's not.

As far as I'm concerned, if my clients march down a street on a permit that's issued by the City of Boston, whether it's a moving assembly or a group of persons, there will be some people that will make a determination that my clients or that group of people are expressing something.

This case--

Justice Souter: No, but let's assume they are wrong.

Let's assume that in fact they are expressing nothing, so that the parade stands on the same footing, let's say, as a public restaurant, would the result be the same in this case?

Mr. Darling: --If it was a permitted activity and there was no expression involved, probably not, Justice--

Justice Kennedy: Okay.

Well, I'm not sure.

I take it... and we can ask the respondents.

I take it that the whole position of the respondents is that they want to proclaim a message.

Mr. Darling: --They do indeed, Justice--

Justice Kennedy: And it seems to me that your answer would be that even if your parade is nonexpressive in its history and in its tradition, that you have the right to keep it that way.

Mr. Darling: --Well, Your Honor--

Unknown Speaker: Or is that your... it seems to me that's a plausible position.

Mr. Darling: --We have a judgment that made a finding that it was impossible to discern any specific expressive purpose in my client's First Amendment activity, but this Court has access to the exhibits, and particularly a video tape that demonstrates without question that my clients are engaging in a First Amendment activity with viewpoints and political messages and celebrating their religious values.

The judge, the trial judge, acknowledged and identified those very values my clients are expressing.

Justice Kennedy: Well, just hypothetically, let's assume, following Justice Souter's line of questioning, that this parade was like a picnic or something that had no expressive purpose whatsoever.

That may be wrong.

Let's assume hypothetically.

It seems to me that you still have an argument, and maybe you don't think you do.

I should think you still have an argument that even if it is neutral in its custom and in its format, you have the right to say that it cannot be used for some other person's message.

Mr. Darling: Well, we've described a group of people--

Justice Kennedy: You don't have to take the argument if you don't want to.

Mr. Darling: --We've described a group of people--

Justice Scalia: I thought you made that argument in your brief, frankly.

I'm surprised that this comes to you as a revelation.

I thought it was in your brief.

Mr. Darling: --Well, I'm sorry if I misspoke, Justice Scalia, but the fact is that any group of people or any individual cannot be compelled to speak in behalf of the State or be the courier for the State's message.

Justice Ginsburg: Mr. Darling, I understood your brief to say this is your parade and you can do with it what you will, somebody else can do what they will with their parade.

That's the essence of your argument.

It's your parade to make it do whatever you want it to do.

Mr. Darling: That's correct, Justice.

My clients define the scope and content of the parade.

They vote to include and exclude people and groups with messages that they approve of in their parade that are consistent with the overall theme, a celebration of the patron saint of the Archdiocese of Boston, St. Patrick.

Justice Ginsburg: Well, you--

--Are there any limitations on that?

Mr. Darling: Yes.

The limitations are adjudged on a case-by-case and a group-by-group manner by the veterans.

They vote to include and exclude groups, and they vote on the basis of their own personal feelings.

Not just Mr. Hurley but the vote of 60 people made the determination to exclude the respondent in this case.

Justice Scalia: Mr. Darling, I thought you said you couldn't do whatever you wanted with a parade.

I thought you conceded that you could not exclude gays, lesbians, and bisexuals from marching in the parade if they want to march, so long as they are not trying to convey a message which you do not want conveyed.

You don't contest that the Massachusetts law is applicable to the parade insofar as the exclusion of someone simply for being a homosexual or lesbian or a bisexual is concerned, right?

Mr. Darling: No, that's correct, Justice Scalia.

The fact that my clients do not have a litmus test so far as sexual orientation is concerned for participation in the parade is very clear from the record.

My clients have excluded messages, not the people.

The--

Justice Souter: What is the message in this case?

How would you state the message that GLIB is trying to convey?

Mr. Darling: --GLIB had three purposes that were found as expressive during the trial.

They were enumerated by the court as first to express its members' pride in their dual identities, second to demonstrate to the Irish-American and the gay, lesbian, and bisexual communities the diversity within those respective communities, and to show support for the Irish-American gay, lesbian, and bisexual men and women in New York City, the ILGO members, who were seeking to participate in the New York St. Patrick's Day parade.

They sought to demonstrate and proclaim their diversity on the basis of their sexual orientation in the parade.

They also had a political message to support the people that were excluded from the St. Patrick's Day parade in New York, and my clients have messages that they really don't have to explain.

They merely have to display them.

They--

Justice Souter: The message is, it's great to be Irish.

Mr. Darling: --That's one of them, Justice Souter.

Justice Souter: That's enough, isn't it?

[Laughter]

Mr. Darling: One of them.

I cannot emphasize enough the fact that for 3-1/2 years I've been explaining the basis for my client's speech, and being asked why they wish to express their religious values, what relationship do the Joey's clowns have to St. Patrick, all of the most absurd questions I've heard in my modest career.

What this case revolves around is messages.

My clients have their messages.

They may be old-fashioned, or they may be traditional messages.

Chief Justice Rehnquist: Well, what you're saying, I gather, Mr. Darling, is it isn't just a message it's great to be Irish, but that it's great to be Roman Catholic, too.

Mr. Darling: Your Honor, Mr. Chief Justice, the messages contained in my client's parade are numerous and powerful messages.

They include an anti-abortion group.

Now, that group had been excluded for several years because they wished to display signs and pictures, and shout to the crowd, the spectators, and hand out literature as they passed down the street.

Chief Justice Rehnquist: Well, could you answer my question more directly?

Is the Roman Catholic religion a part of your message?

Mr. Darling: It certainly is, Mr. Chief Justice.

The Ancient Order of Hibernians have been an integral part of the veterans parade for many years.

They declined to participate in the parade because of the forced inclusion of the respondent in the '92 and 1993 parades.

My clients wanted that religious component in their parade, the Ancient Order of Hibernians.

Because of the forced inclusion of the viewpoint by the courts, the Hibernians did not participate.

My client's speech was diminished.

Justice Stevens: Why do they let the Baptists join the parade if it's a Catholic parade?

Mr. Darling: Well, it's part of their cultural expression, Justice Stevens.

They're ecumenical in their Irish--

Justice Stevens: Up to a point.

[Laughter]

Justice Scalia: Well, as I recall, the district court found that St. Patrick would not have excluded the homosexuals, lesbians, and bisexuals, isn't that right, something to that effect.

His mission was not just to the straights, or something of that sort.

[Laughter]

Is that a finding of the district court, or the lower court here?

Mr. Darling: --I believe that was a homily that was added at the end of the judgment in the superior court decision, but clearly the fact that homosexuals and bisexuals and lesbians have marched in my client's parade for years is of no great consequence to my clients, that a gay city councillor who is openly gay who marched, and that appears in the record, and he was not disturbed.

And Mr. Hurley did not have him excused from the parade, as he did in '93, when the court ordered my clients to include GLIB with their sexual orientation massagist, and Mr. Hurley ordered the exclusion of a truck with an antigay message on it, and assisted by the police they were thrown out of the parade.

My clients do not care about the sexual orientation or the religious background or the ethnic composition of anyone in their parade.

They select groups that are consistent with what they perceive to be their version of a celebration of St. Patrick in their neighborhood, and it has some neighborhood features, and that's why the Baptist Bible trolley is invited, and that's why a number of local organizations are invited.

A great deal has been made about the factual situation relating to people showing up and paying to join in the parade.

Well, this is not supported at all in the evidence, not one iota.

Justice Breyer: So what are we supposed to do... I take it that you concede, or do you not, that if your groups want to... your group cannot discriminate on the basis of race, can it?

Mr. Darling: It can in its--

Justice Breyer: Just... you wouldn't let a person in just because he was Afro-American, that was your only reason?

Mr. Darling: --Justice Breyer, my clients, if they wish to discriminate on the basis of their speech, in their speech they can, but as far as discriminating independently of their speech, that is conduct, and--

Justice Breyer: No, no, that's not my point.

My point actually is that there's a factual finding in this record, I take it... the SJC says that the judge found that GLIB was excluded from the parade because of the sexual orientation of its members.

Now, that's a finding that we have here, and so is that finding... are we supposed to accept that, or reject that?

I take it that there's a finding that the parade normally includes everybody, and however they didn't include these people not because they weren't proud to be Irish, they were, but because they didn't like their sexual orientation.

Now, I just read that sentence is what it said in the SJC, so are you saying that you do have a right to exclude because of the sexual orientation, or are you saying that wasn't why they were excluded, and if it's the latter, what do we do about the fact-finding?

Mr. Darling: --I'm suggesting that the finding of discrimination, Justice Breyer, was made inappropriately on the very basis of the words you have just read.

The trial judge equated--

Unknown Speaker: So you're saying the fact-finder--

Mr. Darling: --The trial judge equated the sexual orientation with messages and values.

In my book, if you combine a message and a value you've got a viewpoint, not a sexual orientation.

Justice Breyer: --But what are we supposed to do, because what we have is that sentence of the supreme judicial court, which I take it is a finding.

Are we supposed to say... look into the record and say they're wrong?

Are we supposed to remand it for a further factual finding?

Are we supposed to take it as a fact?

What do you suggest we do?

Mr. Darling: I would suggest, Your Honor, that the Court review the entire record, because I would be very distressed if my clients' rights of free speech were abridged on the basis of one judge's opinion of what message and viewpoint combined to mean.

Justice Kennedy: Well, it's not just--

Mr. Darling: Messages and values.

Excuse me.

Justice Kennedy: --But one judge always finds the facts.

On page B4 of the appendix I think is the place where the trial judge makes the finding that Justice Breyer has asked about.

Footnote 5, the last sentence of footnote 5 on page B4 says the defendant's final position was that GLIB would be excluded because of its values and its message, i.e., it's members' sexual orientation.

That seems to conflate two different concepts.

It's quite a confusing finding.

Mr. Darling: Well, if values and message equate to sexual orientation, I have difficulty with that, Justice Kennedy, but you could read prior to the... in the same footnote, while we're on the same page, the pretext and the credibility of Mr. Hurley were mentioned in this area of the decision, and Mr. Hurley and the Veterans Council knew nothing about this group when they first approached the Veterans Council to march in their parade.

This is reflected in the record.

They had no name.

They had three people that were forming a group that wanted to march, so naturally, when they finally sent in an application, which is reflected in the exhibits, that described themselves as a social club, they did not have enough information about the group and they were also hearing information in the community about the three participants that wanted to organize the group.

After they found out what the messages of the group were, they took a vote, and they voted to exclude any group with any sexual theme from their parade.

They're entitled to do that.

They're entitled to define the parade in any form and shape that they wish.

That was not pretextual.

The court found, as being discriminatory, the very fact that my clients voted to exclude any groups with sexual themes to be discriminatory in itself.

Therefore, I think the focus is correct on that area.

I sincerely think that values and messages do not necessarily mean sexual orientation.

They mean a viewpoint, and it's the viewpoint that was imposed on the parade that brought us here today.

If my clients were marching with a group of people that did not have the signs and the messages that are reflected in this record, then there would be no dispute.

The fact that the sign, the proclamations on the sign, and their announced messages that were determined to be as I read to the court by the trial judge, my clients can reject.

They can include and exclude any messages they wish to.

Unknown Speaker: Yes, but--

Justice Ginsburg: --Mr. Darling, before you finish, there was one of the friends of the court that suggested that there was an open issue here about perhaps State action.

I think you would concede, would you not, that if this were the State of Massachusetts or the City of Boston parade, they could not pick and choose among messages.

Mr. Darling: That's correct, Justice.

Justice Ginsburg: And what about the notion that because there were so many close ties between your group, the Veterans Council, and the City of Boston, this State action or governmental action was implicated?

Mr. Darling: The matter was fully litigated at trial.

There was a finding by the trial court that there was no State action.

Respondent--

Justice Ginsburg: There was a finding that Boston wasn't involved and so the municipal defendants were dismissed, but what about the notion that you took on the mantle of the State?

Mr. Darling: --The fact that... there was a also a fact found that the veterans were private actors.

As to assuming some role that may have been assigned by James Michael Curley back in 1947, whatever happened then respectfully is not relevant now.

Today, the Boston Transportation Department issues permits on a first come, first served basis.

My clients have applied for and received the permit for many years.

No one else has applied.

My clients run their parade.

They generate the money for the parade.

They raise the money for their parade.

They have meetings to design the content of that parade.

They have no contact with the city.

In 1992, in 1993 we had two mayors that were literally trying to force this group into the parade.

My clients resisted that.

If it was a city sponsored or city... my clients were administering the parade for the city, then my clients would simply have said well, you take your parade and go, we'll do ours.

They've never, ever felt they were acting in the role of an administrator for the City of Boston.

They conduct and run their own parade and they design it in a form and style of their choosing.

Justice Scalia: And that was found by the trial court, wasn't it.

I mean, it said that there was no symbiotic relationship, is how it was addressed.

Mr. Darling: Yes, Justice Scalia, and the judge made a very detailed number of findings relating to the symbiotic relationship, or the... all the way back to Evans v. Newton as far as what had traditionally been done by the city.

Justice Stevens: Mr. Darling, can I just raise one question?

I'm concerned about the question Justice Breyer asked you, because the court of... supreme court, or court... whatever you call this top court, does expressly say the finding was not clearly erroneous.

Now, are you saying we can decide this case without setting aside that finding, and if you say we must take a... review the record de novo on that finding, do we also have the right to review the de novo on that State action?

Mr. Darling: I would think the compelling need of protecting fundamental First Amendment rights would require a complete review relating to our First Amendment claims.

Justice Stevens: Would that include complete review of the finding of no State action?

Mr. Darling: I would think not, Justice Stevens, but if that was so, and this Court did, I'd be delighted if the Court would revisit the State action that was visited upon my clients by two mayors of Boston that coerced my clients into including a group into their parade that they did not wish to include.

Chief Justice Rehnquist: Does the respondent challenge the finding of no State action here?

Mr. Darling: No.

They... Mr. Chief Justice, they ask that the judgment of the State court be affirmed in every significant--

Chief Justice Rehnquist: They didn't cross petition, did they?

Mr. Darling: --They did not, no, sir.

I reserve the balance of my time if there are no further questions.

Argument of John Ward

Chief Justice Rehnquist: Very well, Mr. Darling.

Mr. Ward, we'll hear from you.

Mr. Ward, just to perhaps follow up on that question as... you do not challenge the conclusion of the Massachusetts courts that there was no State action here?

Mr. Ward: Mr. Chief Justice, and may it please the Court:

We do not press that issue here.

We included... I believe that the Court is free to affirm the judgment of the court below on any grounds it chooses, and we certainly--

Chief Justice Rehnquist: Well, we can affirm on an alternate grounds, but not one that you have not advanced in your brief.

Mr. Ward: --We dropped a footnote acknowledging amicus' position.

We do not--

Chief Justice Rehnquist: An amicus cannot raise a separate issue.

Mr. Ward: --We do not press that position in this Court, Your Honor.

This is a case about discrimination.

The finding of the trial judge in this case was that the council excluded the members of GLIB on the basis of their sexual orientation, that they excluded them for who they were, not what they said.

Justice Souter: Well, do you agree that we can review that in a First Amendment case, that we can review that finding and address Justice Breyer's question so that perhaps that finding is in fact not dispositive for us?

Mr. Ward: The Court can certainly review the facts in a First Amendment case to determine whether or not First Amendment rights have been violated.

However, a finding of discrimination is uniquely dependent upon credibility, and even in Hernandez v. New York, for example, the Court pointed that out, even where constitutional rights are implicated.

Justice Kennedy: Well, do you contest... I assume you concede that your clients wanted to be in the parade because they wanted to proclaim a message.

Mr. Ward: Well, I think the term "message" as it's been used in this case really is more confusing than illuminating, Justice Kennedy.

My clients wanted to be included in the parade.

They... the trial... they wanted to be included in what the trial judge found to be an open recreational event.

The trial judge found that they had been discriminated against.

He ordered that they be included on the same basis as everybody else.

Everybody else self-identified.

Justice Kennedy: Do you think it's a fair conclusion from this record that the plaintiffs had no interest in proclaiming their message in this event?

Mr. Ward: I think that there is a difference between who someone is and what their message is.

They did not come in with a sign saying "Gay is Good".

Justice Kennedy: Precisely, but the First Amendment is concerned with the latter.

Mr. Ward: I'm sorry.

Justice Kennedy: The First Amendment is concerned with the latter, and if messages are the grounds for the exclusion from the parade, it would seem to me that that is the end of it.

Mr. Ward: The council has the right to exclude on the basis of viewpoint.

What the trial judge found was that they excluded on the basis of sexual orientation.

That's discrimination under State law.

Justice Scalia: To get back to the question of why GLIB wanted to be in the parade, they didn't want to be there to recreate, as was found by the Massachusetts supreme court.

GLIB's purposes are to express its members' pride in their dual identities as Irish or Irish-American, to demonstrate to the Irish-American community and to the Gay, Lesbian, and Bisexual community the diversity within those... and to show support.

All of those are expressive activities.

They were there to express something, weren't they?

Mr. Ward: Justice Scalia, I think that when Linda Brown went to school in Little Rock her going in there was expressing something.

For purposes of the discrimination statute, the expression is incidental.

When a discriminator excludes someone, that also under some circumstances sends a very powerful message.

Justice Scalia: But it's not incidental.

If these people were allowed in to march in other units and were not excluded from... was there any evidence of that by--

Mr. Ward: There was no finding about that, Justice Scalia.

Justice Scalia: --No finding at all.

Mr. Ward: No, there was no finding that they were let in in other units.

Justice Scalia: No finding that they weren't, either.

Mr. Ward: No, that's--

Justice Scalia: Was there any evidence whatever that a person would be excluded from the parade, marching in another unit, if that person was homosexual or lesbian or bisexual?

Was there any evidence whatever of that?

Mr. Ward: --There was only Mr. Hurley's testimony which the trial judge disbelieved, but I think the point is, Your Honor--

Justice Scalia: Which was the opposite.

Mr. Ward: --Which was he said I never--

Justice Scalia: And that's the basis on saying that this existed, that somebody else said it didn't exist.

Mr. Ward: --He said, I never knowingly excluded someone on the basis of their sexual orientations, which is not the same thing as saying, I knew that so-and-so was gay and let him in.

Justice Scalia: It's also not the same thing as evidence that somebody was excluded simply because of his sexual orientation.

Mr. Ward: The... I think that the point here, Justice Scalia, is that one... under the antidiscrimination laws one cannot be penalized for merely self-identifying any more than the... when a discriminator excludes--

Justice Scalia: Why is that?

This isn't a matter of penalizing.

It's a matter of not wanting to convey the expressions, the demonstrations, and the showings of support that this group wanted to make in that particular parade.

Mr. Ward: --For the same reason that if the council had said, we don't object to the presence of Jews, just Jewish surnames, or we don't object to the presence of blacks provided they somehow conceal who they are.

This group, the order of the trial court simply said, let them in on the same basis as everybody else.

If they wanted to... if the council wanted to exclude all signs, they could have done so.

They were certainly entirely free to do that.

There was nothing in the order of the court that said that GLIB, unlike any other group, can come in with some sort of message.

Chief Justice Rehnquist: That may be the rule for the Massachusetts antidiscrimination law, but if Massachusetts antidiscrimination law results in forcing parade organizers to allow people with signs and placards that are inconsistent with what the parade says its message is, then it's a problem under the First Amendment, isn't it?

Mr. Ward: That is correct, but what I... I think I--

Chief Justice Rehnquist: You're saying that didn't happen.

Mr. Ward: --I'm saying that didn't happen, and I'm saying it for two reasons, Mr. Chief Justice.

First of all, there was a State finding also that this was an open recreational event, that there really was--

Justice O'Connor: Well, let's pose it in a different context.

Suppose there's a Ringling Brothers Barnum and Bailey Circus in town and they have a parade, and an animal rights group wants to join the parade with their signs that say, animals shouldn't be used as they are in circuses.

Now, do you think they have a right under a public accommodation law to join that parade?

Mr. Ward: --Justice O'Connor, I see a very clear distinction between viewpoint discrimination and discrimination against people simply for being who they are.

Justice O'Connor: Yes, but a Barnum and Bailey parade doesn't have any viewpoint other than just, gee, the circus is in town and everybody come.

[Laughter]

Mr. Ward: I think that if the issue here--

Justice O'Connor: A public event.

Mr. Ward: --A public accommodation, right, but what the council is saying is that they're reading into the mere presence of a group that's protected under the Massachusetts statute, a message.

Discriminators always do that.

That's what discrimination--

Justice Scalia: They're not reading into it.

The group said that they wanted to express their pride in their dual identities as Irish and homosexuals.

This group does not believe, whether you agree with it or not, that being homosexual is something to be proud of, and therefore do not want that idea to be expressed in their parade.

Why is that not simply saying you don't have to have expressed what you do not want to have expressed?

Mr. Ward: --Because whatever the group had as its expressive notion when it formed, all it said in the parade is, we are Irish-American lesbians, gay men and bisexuals.

Justice Kennedy: But the point... suppose that were true.

You know the case of Wooley v. Maynard--

Mr. Ward: Of course.

Justice Kennedy: --the driver's license that said live free or die?

Mr. Ward: Right.

Justice Kennedy: The driver of that car was not engaged in expression.

He didn't think about it.

But the point was that once somebody told him he had to express a message, the court found that this was State interference, and that this was State-mandated expression which is contrary to the First Amendment.

Mr. Ward: The difference, I think, Justice Kennedy--

Justice Kennedy: And the point is that even if the parade were not expressive earlier, and I doubt that, but even if it were, I should think the organizers could say we don't want it turned into an expressive activity, and that this case is much easier than a driver's license case.

Mr. Ward: --I think, Justice Kennedy, that GLIB is like the numbers, it's not like the sign.

In other words, what the council was doing is what discriminators always do.

They're conflating identity with some message that they read into it, and--

Justice Ginsburg: But Mr. Ward, what about this--

Justice Kennedy: --Well, can we just get one thing established.

You would agree that if the reason for the exclusion of your clients was solely because of their message... solely because of their message... that the exclusion would be within the First Amendment rights of the organizers of a private parade?

Mr. Ward: --However, there was no message in that sense.

Justice Kennedy: Would you agree with that proposition?

Mr. Ward: I would agree that the council is free to discriminate on the basis of viewpoint.

It is not free--

Justice Kennedy: Including your client's viewpoint.

Mr. Ward: --Correct.

In other words... yes.

If my clients came in with a sign saying, "Gay is Good", they could keep it out.

However, that's not what happened here.

The finding--

Justice Ginsburg: Mr. Ward, there is... there are three... there's a statement I think in the court of first instance and in the supreme judicial court of three purposes.

They sound like they're expressive.

The last one was support for the New York group that was seeking to march in the parade there.

Now, would you review those three and tell me why each of them is not conveying a message?

Mr. Ward: --I don't disagree that each of those purposes is expressive, Justice Ginsburg.

My point is that none of those messages was stated in anything that GLIB said in the parade.

They simply carried a sign.

Justice Souter: Well, none of the parade's messages were, either, and we're talking about that which is kind of reasonably implicit and reasonably conveyed throughout.

Are you taking the position that unless you literally have a sign with a declarative statement on it that the rule does not apply?

Mr. Ward: I'm taking the position that when all other groups in the parade are allowed to simply self-identify, that the act of my client in simply self-identifying, which is all they did, is not the expression of an antithetical message in that sense.

The Court did not order--

Justice Souter: So you are then saying that... I guess you're saying that in the absence of an express declarative statement, none of these three purposes to which Justice Ginsburg has alluded and the Massachusetts courts found as your expressive point is in fact a point being expressed at all.

Mr. Ward: --I'm saying... no, they certainly did not find any expression in the parade.

Groups have a motive for organizing.

People that test--

Justice Souter: Well, didn't they find that your three purposes were expressed by you marching, by your group's marching with self-identification?

Mr. Ward: --No, they did not find that, Justice Souter.

They found that these were the purposes for the formation of the group.

Justice Souter: Yes.

Mr. Ward: They found that the group marched in the parade, that they were discriminated against because of their sexual orientation, not because of any extrinsic message that they sent, or that they conveyed.

Chief Justice Rehnquist: Well, what did your group's sign say?

Mr. Ward: It said simply, Mr. Chief Justice, it said

"Irish-American, Gay, Lesbian and Bisexual Group of Boston. "

which is the identity of who these people were.

It did not say, repeal the sodomy laws.

It did not say, we question your traditional values.

It did not say anything of that kind.

Justice Scalia: That is enough to show that you are proud of that fact, which is what their object is to express their pride in those dual identities.

That's all you need to show that pride, is to hang it up in a sign.

How else does one show pride in a certain thing?

Mr. Ward: In the same sense that a black person marching in the parade, I take it, would be proud of his or her identity.

Justice Scalia: That's right, and if that person held up a sign and said, black unity, that would be an expression of pride in blackness.

Mr. Ward: Except that generally speaking, lesbians, gay men, and bisexual people are not immediately evident to the--

Justice Scalia: Exactly.

I mean, the point at issue is whether there's an expression of anything in their mere marching with a sign saying what they are, and it seems to me you must acknowledge that it is... there is an expression of pride in what they are.

Mr. Ward: --I would call it self-identifying, just as a Star of David, just as--

Justice Scalia: So long as you mean, by self-identifying, pride.

I'll accept that.

[Laughter]

Justice Stevens: May I ask you a question, Mr. Ward?

It's really remarkable in this case, it seems to me, both of you seem to agree on the applicable law.

They agree they can't exclude you because of who you are, and you agree they can exclude you if you're sending a message.

So the real question is, how do you decide which it is, and the point, the question is, for me at least, do you answer that question by looking at your motive, their interpretation of what you look like, or the reasonable neutral person's interpretation of the sign?

What is the standard?

Mr. Ward: --I think it's objective facts.

I think that's what's illustrative here, are the tests that the court has used in the club cases.

It's an objective question.

It's an objective question.

You look at two things.

You look at what kind of event the council has created, what the court found that it was an open recreational event, and then you look at the impact of the inclusion of the unwanted group on that event.

In this case... and this Court's cases have suggested that if a group is so organized around a discernible specific expressive purpose that the mere inclusion of the unwanted group would seriously disable them from their expressive purposes, then perhaps the group wins.

In this case--

Justice Kennedy: Well, I don't know that seriously disable is found in any of our cases.

I think quite the contrary, that if you have an expressive purpose, you're entitled to maintain the purity of that expression.

Mr. Ward: --Except that, Justice--

Justice Kennedy: Newspapers, for instance, can't be required to print retraction articles.

Mr. Ward: --Exactly.

However, what the trial judge found and what the supreme judicial court affirmed was that the relationship of the council to this event was that of standing basically indifferent to the messages, that that's what really happened, and that that--

Justice Kennedy: Well, but I think even if that were so historically they could change their position when another group wants to have a message.

Mr. Ward: --Well, I think that clubs often did that when they wanted to exclude black people, and this Court consistently said you can't reorganize around a racist purpose and become thereby a private club.

I think the analogy fits here.

Justice Stevens: Mr. Ward, can I ask another question, following up on my preceding question?

If it's an objective test, and say objectively the neutral observer would say yes, there's an expression going on here, but nevertheless the evidence was very clear that the real motive was that they didn't want you to march with them, which is what that found, that real motive would really not be controlling under the objective test, would it?

Mr. Ward: Well, it controls as to the finding of discrimination.

It controls as to the finding.

Justice Stevens: Yes, but it would be permissible discrimination if the objective observer--

Mr. Ward: Oh--

Justice Stevens: --would think that there's a message there they don't like.

Now, maybe they would have excluded you whether or not there was a message, but maybe they can get away with it if there's a message.

That's the--

Mr. Ward: --I think what that really means, Justice Stevens, is there are some circumstances under which discrimination is incidental.

That's the Ku Klux Klan case, for example, where the Ku Klux Klan, which we both cite, the Ku Klux Klan wanted to march through a town of Maryland with members only, and the NAACP wanted to march alongside of them.

The trial judge said the mere inclusion of this unwanted group would destroy the message.

That's a far cry from this case, where the trial court and the supreme judicial court both found an open recreational event in which the parade organizers, despite what they later said, which was found to be basically pretextual, stood more or less indifferent to the messages.

Upon the arrival of the hated group, or the unwanted group, let's say, they immediately assert that we have always organized around a specific expressive purpose that excludes the mere presence of this group.

The trial judge didn't buy it.

Frankly, I don't blame him.

And the remedy that he ordered was, treat them like everybody else.

It was not, give them special rights to come in with some sign saying whatever they wanted to say.

It would say simply to exclude them.

You let everybody else self-identify.

Let them self-identify.

Justice Scalia: --Well, they didn't.

They didn't let everybody else... was that the finding, that no group was ever excluded?

They kept out the KKK, didn't they?

Mr. Ward: On the basis, Justice Scalia, that they can discriminate on the basis of viewpoint.

However, the finding was that that's not what was going on here.

Justice Scalia: Oh, well, if you assume that there's no expression going on here I think that's probably right.

But let me--

Justice Stevens: --Could I just ask one quick question?

Could they exclude the Ku Klux Klan on the basis of the uniforms they wear, or the sheets and so forth?

Mr. Ward: Anything they want to, sure.

Justice Stevens: But why is that different from self-identification?

Mr. Ward: Because that goes to the essence, otherwise you would give a discriminator an objector's veto.

Every time somebody came along and self-identified they'd say, we don't object to you.

We object to your Jewish surname, or to your Star of David, or to your... some other feature.

Chief Justice Rehnquist: Yes, but the person with a Jewish surname has got that Jewish surname permanently, but a Klansman doesn't necessarily have to wear a robe.

He could come without the robe.

Mr. Ward: No, but we... under the Massachusetts statute sexual orientation is what it is, and to say that merely announcing it disentitles you from exercising the right of equality... I mean, for example, in an employment situation, the employer could say, I never knowingly fired a gay person, but then if somebody finds out that the employee is gay and the State law bans discrimination on that basis, nobody would say that, well, okay, you weren't kicking him out for his sexual orientation but simply for announcing that fact.

It just doesn't--

Justice O'Connor: But that's very different than compelled speech.

I mean, how is it that the Government can compel someone in their private speech to convey values or a message of someone else?

I didn't think that was possible under the First Amendment.

Mr. Ward: --It isn't Your Honor.

However, that's not what happened here.

What happened here was much more like the Pruneyard case, where the organizers of the event... the Boston marathon also has a parade permit and provides entertainment for a million people.

That mere fact doesn't convert, doesn't answer the question about what the relationship of the organizers to the event was, and what the State courts found here was that the relationship of the organizers to the event was one more of gatekeeper than a--

Justice Kennedy: Well, the trial court says the veteran's position is paradoxical.

A proper celebration of St. Patrick's and Evacuation Day requires diversity and inclusiveness.

I suggest that for a State entity, which is the court, to tell a private speaker how to celebrate St. Patrick's Day is antithetical to First Amendment principles.

Mr. Ward: --Your Honor, I think that what the trial justice was doing was characterizing their position, not dictating it to them.

Justice Ginsburg: But Mr. Ward, you agree with that, don't you, because you urged, did you not, that this case was now moot, because you now concede that this parade has an expressive purpose and therefore they can take the position that you're opposing... they can now take it... your conduct hasn't changed.

What has changed, that you now say it's legitimate to deny you the right that was vindicated for you in this case.

Mr. Ward: Well, Justice Ginsburg, we don't say that they win.

We simply say that they've created a new legal controversy, and as a matter of fact, as I'm sure you know, they marched in '95 under the protest theme by--

Justice Ginsburg: But I thought you said the reason this case is moot is that you're not contesting that, that you did not contest... after the district court ruled against you, you didn't appeal.

Mr. Ward: --No, we have appealed.

Justice Ginsburg: You have.

Mr. Ward: That fact has changed.

Yes, Your Honor.

We have appealed... we appealed actually on abstention grounds.

Justice Breyer: I wanted to ask you, I'm having trouble with your Ku Klux Klan example, because there is no State law that says we're going to protect members of the Ku Klux Klan the same way we protect sexual orientation.

I take it there is a State law that protects sexual orientation and forbids discrimination on that basis just as race, religion, national origin.

Mr. Ward: Correct.

Justice Breyer: And we take that as a given.

Mr. Ward: That's right.

Justice Breyer: So as far as we're concerned, it has to be exactly the same as if we're saying, no African Americans, or no Irish, or whatever.

Mr. Ward: Exactly.

Justice Breyer: That's the given.

All right.

Now, under those circumstances, is it actually motive that is irrelevant?

I mean, if in fact the real reason were because of sexual orientation and the group doesn't really care about the message, that's just a pretext, then I guess your point is there is no... there is no constitutional right when you don't care about--

Mr. Ward: Right.

Justice Breyer: --the sign that says GLIB> ["].

Mr. Ward: Right.

Justice Breyer: That's your... all right.

Now, what I'm getting to is this.

If that's where we're all more or less starting, and the real motive would be relevant, here we have your finding.

Have you found in Supreme Court cases, and this is what... you've read them more recently.

Who goes into the factual record to decide whether or not that finding really is supported or not supported?

Is it supposed to take place in this Court?

Are there cases that say we would remand it for further consideration by the SJC, or back to the trial court?

How, from your reading of the cases, should we deal with the proper resolution of that factual matter?

Mr. Ward: Well, I think the most recent case, at least the most recent case that I've come across, is Hernandez v. New York, the jury selection case in which the trial judge made a finding of no discrimination, and what this Court says was, because this is a who-did-what-to-who question--

Justice Scalia: It wasn't a First Amendment case.

Mr. Ward: --No, it wasn't.

Justice Scalia: Try Bose.

Mr. Ward: Correct.

Justice Scalia: Bose was a First Amendment case.

Mr. Ward: Bose was a First, but even in Bose, Justice Scalia, great deference is given to factual questions, particularly a question like discrimination, which depends largely on credibility.

Every discriminator, generally speaking, asserts a racially neutral or neutral explanation for their behavior.

Justice Scalia: What evidence was there for discrimination on the basis of sexual orientation as opposed to expression?

Mr. Ward: The shifting rationales given by the chief witness for petitioners was the basic evidence that the trial justice relied on.

Justice Scalia: Why does that show discrimination on the basis of sexual orientation?

Mr. Ward: Because--

Justice Scalia: It might show casting about for something that the trial court would accept.

Mr. Ward: --To the trial judge and to me it shows that the person was not being credible in his explanations, that his real basis was discrimination based on sexual orientation.

Justice Scalia: I don't see how it leads to that conclusion.

It leads to the conclusion that he's trying to come up with something that the court will accept.

As it turns out, nothing.

Mr. Ward: I think it's typical of what discriminators always do, Justice Scalia.

They always come up with some sort of explanation.

They never want to say we don't want them in because of their sexual orientation.

Justice Scalia: How did this shift?

I mean, what were the shifts in their explanation?

Mr. Ward: They started out with safety reasons.

They started out with some unsubstantiated beliefs that this was a group of radicals that were... they got to this business of no sexual themes, which Mr. Darling acknowledged in the trial court meant no self-identification.

Justice Scalia: But the trial judge finds that G-L-B would be excluded because of its values and its message, i.e., its members' sexual orientation.

If that's what the trial court means by sexual orientation, I'm very troubled, and--

Mr. Ward: Justice... excuse me, Justice Scalia--

Justice Scalia: --Yes.

Mr. Ward: --That's not what he found.

He found that on page... Justice Kennedy quoted it at the beginning--

Unknown Speaker: B4.

Mr. Ward: --B4.

I... they excluded them on the basis of their sexual orientation and I so find.

Before that, he drops a footnote explaining what their version of this is, but that's not the version that he adopts.

He says--

Justice Scalia: But the i.e. is i.e., it's not the G-L... the defendant's final position was the G-L-I-B would be excluded because of its values and its message, i.e.... and this is the court speaking... its members' sexual orientation, so apparently the court thinks that exclusion on the basis of sexual orientation consists of excluding because of value and message.

Mr. Ward: --Well, Justice Scalia, I take that footnote to be, including the i.e., to be his characterization of their position, not his, but in any event--

Justice Scalia: Of the defendants' position?

Mr. Ward: --I think so.

But in any event, the conflation of mere identity with messages and values is paradigmatically what discrimination is.

You say, I don't like you because of who you are, and I find in that messages and values.

That in itself has never received any protection in this Court.

It's never been permitted to be converted into viewpoint discrimination.

That's paradigmatically a pretext.

Justice Scalia: I don't know what you're saying about the i.e., because this is very important to me.

It says what the finding of sexual orientation means.

You're saying that the trial judge was saying that the defendants, that is, the veterans group managing the parade, admitted that they were excluding people because of their members' sexual orientation?

Is that what the i.e. means?

Mr. Ward: That that... no, that that was their final position, that their final position was--

Justice Scalia: Isn't that his characterization of--

Mr. Ward: --His characterization of their final position, yes.

In the end, this is a case about discrimination.

The finding of the two courts below, well-supported in the record, was that the reason, the real reason that GLIB was kept out was its members' sexual orientation and not any message, because there was no message in that sense, and for that reason the judgment of the supreme judicial court should be affirmed.

Rebuttal of Chester Darling

Chief Justice Rehnquist: --Thank you, Mr. Ward.

Mr. Darling, you have 4 minutes remaining.

Mr. Darling: Again, I would urge, Mr. Chief Justice and Your Honors, that any review of the record will reflect that there is absolutely no evidence of discrimination on the basis of sexual orientation by my clients in this record... in the whole enterprise.

My clients discriminated against messages, historically they have.

They included the NAACP, they excluded the KKK, they excluded an anti-gay group, and they wished to exclude a group--

Justice Stevens: Mr. Darling, would you comment directly on your opponent's argument that the particular signs they were going to carry, and it's all... forget your motive in letting them out and they're motive in doing it, but just, I want to watch the parade.

Now, would I see anything that would be more than what he describes as self-identification?

Mr. Darling: --A sign that stated, Irish-American, Gay, Lesbian, and Bisexual Group of Boston.

Justice Stevens: Is that self-identification, or is that message, and if so, what is the message?

Mr. Darling: It's a message, it's an identification, it's a proclamation, and it is a message that my clients did not deem appropriate including in their expression of their version of a celebration of a St. Patrick's Day parade, however they designed it.

The--

Justice Stevens: It seems to me that there's some... I'm wrestling with this, to be very honest with you.

There is some force to the notion that this is, maybe a Jewish group wanted to wear yarmulkes for self-identification.

Would they be permitted to march if they didn't wear their yarmulkes?

Mr. Darling: --What my clients do, Justice Stevens, is evaluate a group on the basis of their message and what they'll contribute to my client's speech, their overall celebration.

Justice Stevens: But what do we look at... would you agree that to decide what their message was we should just look at what they purported to carry in the parade, not all this other evidence about, they thought it might give moral support to people in New York, or something like that?

Mr. Darling: In my opinion, they wouldn't exclude Jewish people that wore yarmulkes.

They would exclude people--

Justice Stevens: No, but my question was, in trying to decide what the message is, do we just look at what they were going to do in the parade, or do we look at their testimony that I think this will also give moral support to other groups around the country, and so forth and so on?

What do we look at to decide whether or not it is a message on the one hand or merely self-identification on the other?

Mr. Darling: --Well, it's also a distinction, too.

That sign makes a distinction on the basis of sexual orientation.

It announces a distinction between one sexual orientation and another, and it's clear how absurd extending this argument goes, because if the actual statute itself was applied to the fact that that sign represented a distinction on the basis of sexual orientation, that GLIB themselves had violated the very statute that they are imposing on--

Justice Breyer: Suppose that their actual reason was that the sign calls attention to a fact that makes them feel uncomfortable.

Is that a justification?

Mr. Darling: --Any--

Justice Breyer: Where does that stand?

Mr. Darling: --As far as my clients are concerned?

Justice Breyer: No, where does it stand as far as the law is concerned?

Mr. Darling: My clients--

Justice Breyer: Suppose that what happens is that that just makes them feel uncomfortable, since it's public, and they don't like it.

Now, where does that stand under First Amendment law?

Mr. Darling: --My clients can exclude it.

They can exclude any message in any parade that they deem inappropriate.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Darling.

The case is submitted.