Date: Wed, 16 Aug 1995 12:07:57 -0500 From: mohr richard d _______________________________________________________________ "Clobbered by the Supreme Court -- Again" by Richard D. Mohr (July 1995) * Clobbered in 1986. The Supreme Court rules 5-4 that gay sex is not protected by the right to privacy. * Clobbered in 1987. The Supreme Court rules 7-2 that the Gay Olympics has no first amendment right to call itself the "Gay Olympics." * Clobbered in 1995. The Supreme Court rules 9-0 that the first amendment makes it okay for the sponsors of Boston's St. Patrick's Day Parade -- the South Boston Allied War Veterans Council and its head John "Wacko" Hurley -- to throw gays out of the parade even though Massachusetts law bars anti-gay discrimination. This is our sad and decaying history before the Supreme Court. Rather than face reality and see the clear pattern here, our gay legal pundits, including the head of the ACLU's gay rights project and the editor of _Lesbian/Gay Law Notes_, have desperately been trying to paint a happy face on the St. Patrick's case. Some, resorting to Orwellian double-speak, have called the case a gay victory even though the gay side lost. Here's what the Court did. First, against common opinion the Court held that all parades are political. It adopted a question-begging definition of parade: "We use the word 'parade' to indicate marchers who are making some sort of collective point." From this stipulation, the court concludes that parades are "inherently expressive" and so further, without examination, can conclude that the St. Patrick's parade is relevantly similar to political rally, even though the Court could find no clear (or even unclear) message that the parade collectively was expressing. It is simply false, however, that all parades are political. There are parades and there are parades. The Macy's Thanksgiving Day Parade is public entertainment, not politics. My home town's annual pet parade is entertainment, not politics. As a six-year old there, I won a five-dollar gift certificate for a fish bowl plunked down amid some moss on a Red Rocket Flyer. Should the snapshot caption have read: "budding politician on the grift." Hardly. And an event whose most distinctive features are green beer and green bagels is an entertainment, not a political rally. The Court's decision holds out a general danger for civil rights laws. If, as the case implies, the Court will consider any ritualized social behavior as politics protected by the first amendment, then most of the social venues we normally consider public accommodations, like movie theaters and restaurants, become political -- in which case, the first amendment voids civil rights laws as applying to them. In the past, social clubs have -- largely without success -- claimed that they are exempt from civil rights laws because of privacy rights. Now they can plausibly argue that they are exempt thanks to the first amendment. The Court went on to claim -- astonishingly -- that the parade organizers weren't discriminating against gays at all, only against a political message. The Court drew a sharp distinction between "openly gay, lesbian, and bisexual individuals," on the one hand, and, on the other, a group of such individuals collectively carrying a banner identifying the group. This line-drawing too runs against common understanding. Had the group kicked out of the parade consisted of non-passing banner- toting members of the NAACP, everyone would concede that this was a case of race discrimination. The Court's twisted line-drawing means that gay legal pundits are flatly wrong when they view the case as bearing hope for a judicial end to Clinton's "don't ask, don't tell" military ban. The case does not treat individual coming-outs as political. It is wholly consistent with the military's policy of viewing coming-out not as protected speech but as censorable "homosexual behavior." By claiming that the parade organizers were not discriminating against gays, the Court was able to finesse the issue of how far governments may go in banning such discrimination. You see, in race and gender cases, the Court has held that governments have such a compelling interest in banning discrimination against blacks and women that the interest overrides any constitutional claim made by those who would discriminate. A gay-affirming Court would have held the same for gays. Like Clinton, the Court was running away from gays as fast as it could, using conceptual trickery to ease its path. The pundits claim, to the contrary, that the Court's gentle rhetoric and gay-friendly vocabulary in this case are positive and promising signs of change, especially when compared against the tone of the Court's 1986 "homosexual sodomy" decision. But here the pundits are simply naive about how power operates in the modern era. When you hold all the cards, you can afford to appear nice as you trounce your opponent. And often, appearing nice is the most efficient way to be evil: the sweet-talk and smiles of Richard J. Daley were far more effective in getting rid of Martin Luther King Jr. and integration than were the bigoted words and water cannons of Bull Connor. Better to judge the Justices here by their deeds than by their words. The pundits also claim that at least the case was a victory for the first amendment and that the first amendment is good for gays. Well, in the past at the Court, it hasn't done any good. And the case is hardly a sign of the Court turning over a new leaf and expanding speech rights generally. Not two days after the St. Pat's case, the Court gutted the whole line of precedents extending first amendment rights to commercial speech. Rather, the case should be seen as part of a larger and disturbing pattern in which the Court cynically uses talk of rights in order to further entrench the power of elites. At the turn of the century, the Court confected a "right to contract" and then used it in a hundred-and-fifty cases to insulate robber barons from business regulations. This term in two cases flanking the St. Pat's decision, the Court in the name of white "rights" -- read "white power" -- reversed its past approval of federal affirmative action programs and mandated election practices which will almost certainly reduce the black membership of Congress by half. In a similar vein, the St. Pat's case, far from asserting minority rights against the tyranny of the majority, cynically re-affirmed the power and dominance of straight white men. ____________________ Richard D. Mohr is Professor of Philosophy at the University of Illinois - Urbana.