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GAY VETERANS ASSN., INC. v. AMERICAN LEGION - NEW

November 6, 1985

GAY VETERANS ASSOCIATION, INC, JOHN PAINE AND ROBERT WALDEN, Plaintiffs, against THE AMERICAN LEGION - NEW YORK COUNTY ORGANIZATION, REGINALD B. ALLEN, JR., individually and in his capacity as Parade Chairman of the American Legion - New York County Organization; ANTHONY F. TUCCILLO, individually and in his capacity as Adjutant of the American Legion - New York County Organization; CITY OF NEW YORK; EDWARD I. KOCH, individually and in his capacity as Mayor of the City of New York; NEW YORK CITY POLICE DEPARTMENT; BENJAMIN WARD, individually and in his capacity as Commissioner of the New York City Police Department; ROBERT J. JOHNSON, JR., GERARD J. KERINS, TOSANO J. SIMONETTI, J. JOHNSON, HENRY A. HARRISON, and JOHN DOE, individually and in their capacities as officers of the New New York City Police Department, Defendants.


The opinion of the court was delivered by: MOTLEY

MOTLEY, CH. J.,

Plaintiffs, the Gay Veterans Association, Inc. ["Gay Veterans"] and two of its officers, Robert Walden, Secretary, and john Paine, President, have commenced this action against the New York County American Legion, the Mayor of the City of New York and various other defendants seeking injunctive and other relief. The action is brought pursuant to 42 U.S.C. sections 1983, 1985(3) and 1986. Plaintiffs, pursuant to an order to show cause, have moved for a preliminary injunction directing defendants to permit the Gay Veterans to participate in the 1985 Veterans Day Parade or, in the alternative, requiring the City to revoke the permit issued to the Legion and to issue a parade permit to the Gay Veterans instead. Defendant new York County American Legion ["American Legion"] has moved to dismiss this action. For the reasons set forth below, plaintiffs' motion for preliminary injunction is denied. Defendant American Legion's motion to dismiss also is denied.

 FACTS

 Congress decided in 1919 to designate November 11 as a national holiday, Veterans Day, to honor those individuals who have served in the Armed Forces of the United States, placing their lives and welfare at risk in the defense of this country. 5 U.S.C. section 6103(a). In addition, New York State and New York City have recognized Veterans Day as an official holiday. See, e.g., New York General Construction Law, section 24. Section 12 of the new York General City Law provides that the City may expend monies to observe Veterans Day in cooperation with veterans' organizations.

 Since 1923, the American Legion has held a Veterans Day parade in Manhattan. The parade now commences at 9 A.M. at 39th Street and Fifth Avenue, and finishes at the Eternal Light Monument which commemorates the American Expeditionary Forces in France during World War I. This monument is located at 24th Street. A ceremony consisting of speeches, wreath and flag laying, and a moment of silent prayer immediately follow the parade at the monument.

 In addition to the American Legion's parade, several other organizations have ceremonies in New York City on Veterans Day. On November 10, the Federation of World War Veterans of France holds a rally in Riverside Park to commemorate World War II victories and to honor World War I and II Veterans. On November 11, the Vietnam Veterans of America will hold a memorial sevice [service] in Abingdon Square Park. In Queens, Post 422 of the American Legion will hold a ceremony in Daniel Beard Park. The United Veterans' Committee will hold a parade and ceremony in Memorial Park in the Bronx. The United War Veterans Memorial and Executive Committee will hold a ceremony in Pelham Bay Park. (Testimony of Chief Kerins; Affidavit of Frank Leslie, Assistant Counsel of the New York City Department of Parks and Recreation, paragraphs 2-8.) The American Legion's parade is the only parade in Manhattan, the hub of New York City. The City of New York does not provide funding for any these events, including the American Legion's parade. The City, in fact, presently has not official City celebration of Veterans Day other than giving its employees the day off from work. (Testimony of Chief kerins; Affidavits of Marilyn Richter, Assistant Corporation Counsel, paragraph 12; Frank Leslie, paragraph 10; Linda Cahill, Special Assistant to the Mayor and Director of the Mayor's Office of Special Projects and Events.)

 Each year the American Legion procures a permit from the City of New York for the parade as required pursuant to section 435-9.0 of the New York City Adminstrative [Administrative] Code. The defendant New York City Police Department reserves the permit for the American Legion since it is an annual event. Chief Gerard J. Kerins, a defendant in this action, stated that permits are reserved for traditional parades. A traditional parade is one for which a parade permit has been issued to the same group or organization for two or more years. He testified that by utilizing this method of issueing permits, the City is able to estimate in advance the police manpower it will require to govern the parade. It also provides the City with a means to determine who should receive a permit when two parties with conflicting goals seek a parade permit for the same route.

 In 1984, the Gay Veterans sought permission of the American Legion to participate in the Veterans Day Parade. (Testimony and Affidavit, paragraph 12 of Robert Walden.) Receiving no response from the American Legion, plaintiffs complained to the Mayor. Lee Hudson, assistant to Herbert P. Rickman, Special Assistant to the Mayor, arranged a meeting between representatives of the American Legion and the Gay Veterans. The Legion advised the Gay Veterans that parade participants were members of the American Legion. (Affidavit of Herbert P. Rickman, Paragraphs 3 & 4).

 The official parade program for the 1984 American Legion Parade, however, indicates that several veteran groups not affiliated with the American Legion participated in the American Legion parade. In addition, the program also provides that the parade is conducted by the American Legion "under the auspices of the City of New York." (Plaintiff's Exhibit "6".) Philip Kaplan, Master of Ceremonies and past Post Commander of the New York County American Legion, testified that the parade was not held under the auspices of New York City, and that although this phrase had been included on other programs for many years, it was an error. He testified that the American Legion received no financial support from the City and paid all of its costs in sponsoring the parade.

 On January 2, 1985, the Gay Veterans filed two applications with the New York Police Department for a parade permit. The first application requested permission to march down Fifth Avenue from 39th Street to the Eternal Light Monument on November 11, 1985 at 10:00 A.M. This is the same time and place that the American Legion holds its annual parade down Fifth Avenue. The request was disapproved by Chief Kerins on the grounds that this was a new parade for Fifth Avenue and that there is "a traditional Veterans Day Parade held on November 11, 1985." (City Defendants' Exhibit "A".)

 Plaintiffs' second application sought a permit for a parade to start at Jeanette Park on Water STreet and to finish at the Eternal Light Monument on 24th Street. The permit was disapproved because the parade would result in a "complete disruption of traffic in the financial district during a work day" and manpower requirements for the parade at the time, date and location would be excessive. (City Defendants' Exhibit "B".) Chief Kerins testified that many businesses are open on Veterans Day and that plaintiffs' request for a parade three and one-half miles long would be excessively disruptive to business. Chief Kerins recommended disapproval of the parade because it would deplete already scarce personnel resources and further disrupt traffic. (City Defendants' Exhibit "B".) He testified that the Police Department would prefer one Veterans Day parade but that two parades would be manageable if they were held on parallel routes or if one parade was held following the other. Plaintiffs never sought a permit for another parade route, although the City defendants have agreed to issue them a permit for another location in Manhattan.

 On July 23, 1985, defendant Reginald B. Allen, Jr., Parade Chairman of the New York County American Legion, filed an application requesting a permit for the organization's Veterans Day Parade. The request was granted. On August 21, the Gay Veterans wrote to defendant Anthony F. Tuccillo, Adjutant of the American Legion, requesting to be included in the 1985 parade. The letter also provided that the gay Veterans "insist on being allowed to carry our banner, which clearly identifies us as gay veterans." By letter dated September 25, 1985, defendant Tuccillo "categorically denied" plaintiffs request to participate in the parade carrying the Banner. (Walden Affidavit, Exhibits "A" and "B".)

 On September 28, 1985, plaintiffs wrote to Mayor Koch, requesting that the City revoke the permit issued to the American Legion on the ground that it discriminated against the gay Veterans. (Walden Affidavit, Exhibit "I".) The Mayor has refused to revoke the permit. By letter dated October 9, 1985, however, Mayor Kock wrote to defendant Tuccillo, expressing his "sincere hope that [the American Legion] reconsider [its] position in this matter." The Mayro stated:

 
I have always believed that those who served our country honorable and were so discharged from the service have a right and almost an obligation to display their pride on Veterans Day. All those who served and sacrificed in defense of the nation deserve to be honored - regardless of their religious beliefs, ethnic background or sexual orientation. All veterans should ...

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