Assuming without deciding that ILGO could show it was the victim of an unconstitutional rejection, that is its position: it may not be admitted to tomorrow's parade in preference to the long list of prior applicants. Being a victim of unconstitutional discrimination entitles one to various forms of relief, sometimes including damages, but it does not ordinarily give one priority over bona fide prior claimants.
Even if ILGO has shown that its place on the waiting list is a pretense, the list is otherwise real. ILGO thus fails to satisfy either branch of the Jackson Dairy test for a preliminary injunction. It has shown neither likelihood of success, nor even a fair question for litigation, in its effort to discredit the waiting list so as to gain immediate access to the parade.
I note further, assuming that the customary Jackson Dairy test is applicable, that ILGO is more favored by the first branch of the test than the second. Although the second branch carries a lower threshold of proof on the merits than likelihood of success, it requires an additional showing that the balance of hardships decidedly favors grant of the preliminary injunction. Plaintiff cannot satisfy this branch of the test.
I recognize that ILGO does indeed suffer irreparable harm through exclusion from the parade. The harm is of a symbolic nature. ILGO seeks, through inclusion in the parade, a recognition of status so long denied to homosexuals. Such loss of symbolic recognition is recognized in law as an irreparable harm that can satisfy this element of the standard for preliminary injunction.
The problem is that a grant of a preliminary injunction would cause harm of similar order to the defendants. They contend that their right of free expression and association entitles them to conduct a parade that vindicates their loyalty, respect and deference to the beliefs taught by the Roman Catholic Church. They contend a serious symbolic offense would be caused to them were the Court to require the inclusion of an affiliate whose banner and message challenge and offend the teachings of the Roman Catholic Church. They contend they would be further harmed by the court's frustration of their lawful objective to keep their parade free of confrontation and political agenda.
I conclude that while denial of an injunction inflicts harm on plaintiff, the grant of an injunction would inflict harm of similar proportions on defendants. Plaintiff thus cannot satisfy the aspect of the second branch of the Jackson Dairy test that requires a showing of a balance of hardships "decidedly" in favor of the party seeking that injunction.
I therefore refrain from reaching the provocative issue of whether the legally recognizable right of free speech belongs to ILGO or to the Hibernians. The resolution of that issue cannot affect ILGO's application for an injunction placing it in tomorrow's parade. Even if the Court were to find a constitutional violation, ILGO would still not be entitled to jump the 40 prior applicants who precede it on the waiting list. Courts are commanded to avoid making unnecessary constitutional adjudications.
Accordingly, ILGO's motion for preliminary injunctive relief is denied.
Dated: New York, N.Y.
March 16, 1992
Pierre M. Leval, U.S.D.J.