The opinion of the court was delivered by: KEVIN THOMAS DUFFY
KEVIN THOMAS DUFFY, D.J.:
This is one of those unusual cases where the issue presented by all counsel has remained constant and clear. It is the facts surrounding the issue that seem to be in a total state of flux.
Broadly stated, the issue is whether the City of New York ("City") can compel the Ancient Order of Hibernians ("AOH"),
a private and long-standing sponsor of New York's St. Patrick's Day Parade, to alter the message that it wishes to convey in the Parade by requiring it to include, in the Parade and under their own banner, the Irish Lesbian and Gay Organization ("ILGO"), an organization whose tenets are allegedly inconsistent with the message of the Parade's sponsors.
At my request, counsel for the parties, prepared and filed an agreed statement of uncontested facts after I held a conference on Tuesday, February 2, 1993. I have adopted as many of these agreed upon facts as possible. I scheduled argument on Monday, February 22, 1993, and was apprised that certain facts had changed. At that hearing I advised the parties not to change the facts again. No matter what protestations of good will the parties offered on that date, the facts have changed once again.
Indeed, one of the most difficult tasks in this matter is to get a handle on the facts and the real position of the parties. At times it seemed that the attorneys were acting as navigators attempting to get a fix on their location while aboard a melting ice flow in the midst of a tempest. Counsel for the City, for example, argued at one point, that the City would be willing to permit, without conditions, the AOH to march in a parade on some city street other than Fifth Avenue on March 17th at 11:00 a.m. See City Defendants' Memorandum of Law In Opposition to Plaintiff's Motion for Summary Judgment and In Support of City Defendants' Cross-Motion for Summary Judgment ("City's Mem.") at 13; Hutner Affidavit P 4 and Exh. A, dated Feb. 11, 1993. The City's latest position, however, is that the City would deny the AOH the Parade permit unless AOH "includes the Irish Lesbian and Gay Organization in the parade under its own banner." See Letter to this court from Corporation Counsel, dated Feb. 17, 1993.
At one point, over a year ago, the AOH argued to Judge Pierre Leval of this court that there was a waiting list of organizations who wanted to participate in the St. Patrick's Day Parade and that ILGO would have to wait its turn to be considered for inclusion in the Parade. Judge Leval denied relief to ILGO for various reasons including, in part, because he believed the AOH had a valid waiting list and ILGO could not jump in front of other organization applicants who precede it on the list. ILGO v. N. Y. State Board of Ancient Order of Hibernians, 788 F. Supp. 172, 179 (S.D.N.Y. 1992). Yet, it may well be that the "waiting list" was merely a sham and an "attempt to diffuse the situation," because the AOH has now stated that under no circumstances would they allow ILGO to march. Transcript, Argument held February 22, 1993 ("Tr.") at 7-8.
Within the last two weeks, ILGO protested to the state court that the dispute as presented there was moot. Yet, in argument to this court on February 22, 1993, ILGO took the position, without any change of facts, that this court should abstain in deference to the state court. Tr. at 59.
The AOH is an organization comprised of Roman Catholic men of Irish descent who comply with the Roman Catholic rite's requirement that every adult must receive communion at least once during the Easter Season. The AOH has apparently set out other strictly religious requirements for membership. Every year, under the guidance of the AOH, each contingent that marches in the St. Patrick's Day Parade selects two delegates to be part of the "St. Patrick's Day Parade and Celebration Committee" ("Parade Committee"). This Parade Committee is responsible for taking care of the myriad details and arrangements inherent in running the Parade.
The AOH and the Parade Committee privately finance the Parade exclusively by means of private donations. The only public assistance received by AOH is for the police and sanitation services, which the City affords to every public gathering in the City.
The AOH, the Grand Marshal of the Parade, and members of the Parade Committee start the St. Patrick's day celebration by attending mass at St. Patrick's Cathedral on Fifth Avenue. The Roman Catholic Archbishop of New York reviews the Parade from the steps of the Cathedral. Various units in the Parade carry banners depicting St. Patrick and other saints of the Roman Catholic Church. Notwithstanding this connection to the Roman Catholic Church, it is abundantly clear that some of the marchers participating in the St. Patrick's Day Parade are neither members of the AOH nor members of the Roman Catholic Church. Indeed, anyone who has watched the St. Patrick's Day Parade can attest to the fact that not everyone in the Parade is Irish, although at times it has been said that on St. Patrick's day, everyone in New York is Irish. The Parade marchers generally number in the vicinity of 150,000, with between one and two million on-lookers. The New York St. Patrick's Day Parade is carried by at least one local television station and quite often parts of it are shown on national television.
The St. Patrick's Day Parade is billed as the largest annual civilian Parade in the world. The Parade celebrates, inter alia, freedom and Irish culture and heritage. Traditionally, elected officials have marched in the Parade regardless of their religious or political affiliation or of their position on any issue. Joint Statement of Uncontested Facts ("Jt. Stmt.") at P 13.
The AOH has applied for and received a Parade permit from the New York City Police Department ("NYPD") authorizing it to conduct the St. Patrick's Day Parade on Fifth Avenue for more than seventy years. Jt. Stmt. at P 9. The NYPD maintains a list of organizations that traditionally conduct annual Parades in the city and has, in the past, had the practice of granting permits to the organizations on that list. The AOH has been the organization on that list which conducts the St. Patrick's Day Parade. Jt. Stmt. at P 10.
The AOH has adopted rules for the Parade to prevent any group or person from using the Parade as a vehicle or forum to pursue any political, social or commercial agenda inconsistent with the message, values and viewpoint of the AOH,
or whose purposes, principles or agenda are inconsistent with the teachings of the Roman Catholic Church. Jt. Stmt. at P 12. It is the position of the AOH that the determination of whether a particular purpose, principle or agenda is inconsistent with the teachings of the Roman Catholic Church rests within the discretion of the AOH.
In October, 1990, ILGO requested that the Parade Committee allow it to march under its own banner as an affiliated unit in the 1991 Parade. The Parade Committee denied ILGO's request for various reasons. AOH now maintains that the denial of ILGO's request was occasioned by the AOH's "policy against the inclusion of groups advocating messages contrary to the parade sponsor's [message] and the Catholic Faith." Jt. Stmt. at P 14.
Thereafter, the City administration urged the AOH to admit ILGO to the 1991 Parade. When AOH refused to do so, a compromise was struck whereby ILGO members were permitted to march in 1991, not as an affiliated unit, but as guests of a Hibernian unit. Mayor Dinkins marched with ILGO rather than at the head of the Parade, where the Mayor usually marches. Jt. Stmt. at PP 14, 15. All of the parties agree that the "1991 Parade experienced discord and unseemly interchanges between ILGO members and the Parade's audience." Jt. Stmt. at P 16.
I cannot envision a Parade put on by any organization that would restrict its participants solely to those individuals who have never sinned. Such a gathering surely would be quite small in number, and those who would hold themselves out as entitled to participate most likely would be hypocrites.
Statistically speaking (150,000 marchers x 200 plus years), there seems to be little possibility that 1991 was the first year gays or lesbians marched in the St. Patrick's Day Parade. Indeed, it would appear that over the years the Parade participants surely included certain individuals whose sexual orientation would not meet with the public approval of the AOH and the Parade Committee. Whether the AOH and the Parade Committee knew of the sexual orientation of such participants at the time of those Parades, is unclear. The AOH maintains, however, that individual members of ILGO (and those marchers whose sexual orientation is different from that approved of by the AOH) are welcome to march in the Parade without a banner as guests of the various Parade contingents. Neither the City nor ILGO contest the good faith of this offer, nor is there any basis to doubt that it is the policy of the AOH and the Parade Committee. Indeed, it seems that where there have been organizations not permitted to march as identifiable organizations, their members have still been included in the Parade; e.g., the Right-To-Life Organization.
I must conclude, therefore, that the true reason the AOH and the Parade Committee seek to exclude ILGO is because ILGO would insist on marching under a separate banner that would, in effect, identify the AOH as condoning sexual practices contrary to the message that the AOH believes the Parade should convey. Accordingly, I do not address the arguments regarding ILGO's exclusion on the basis of a waiting list or as a consequence of its behavior in the 1991 Parade.
With respect to the 1992 Parade, the Police Commissioner awarded the permit for the Parade to the State Branch of the Ancient Order of Hibernians ("State AOH"). This precipitated litigation in the state courts which eventually was settled with the AOH conducting the Parade pursuant to the permit issued to the State AOH.
On January 23, 1992, the New York City Commission on Human Rights ("HRC") commenced a proceeding pursuant to the City Human Rights Law to compel compliance with §§ 8-107(2) and 8-108.1 of the New York City Administrative Code. In that proceeding the HRC alleged that the AOH discriminated against ILGO because of the sexual orientation of that group's members. A cease and desist order was sought against the AOH, and a further order was sought from the HRC for the establishment and maintenance of a parade application system for the New York St. Patrick's Day Parade under the continuing supervision of a Commission Administrative Law Judge. On February 17, 1992, ILGO was permitted to intervene as a party in the HRC proceeding. Hearings were held on March 6th and 9th, 1992, before the Commission's Chief Administrative Law Judge Rosemarie Maldonado.
ILGO was not permitted to march as an affiliated unit in the 1992 Parade. However, apparently at the insistence of Mayor Dinkins, ILGO was permitted to hold its own demonstration from 60th Street to 66th Street on Fifth Avenue just prior to the Parade, and was given a special place on Fifth Avenue cordoned off by the police from which to "review" the Parade. Virtually every elected city official who normally marches in the AOH Parade, chose instead to march in ILGO's Parade. Although the Mayor was ill and could not march, "he announced that, if he could, he would march in ILGO's Parade." Jt. Stmt. at P 19.
On October 27, 1992 the City Human Rights Commission rendered a final decision and order. The Commission adopted its Administrative Law Judge's recommended decision and order with respect to the first two holdings thereof, but ruled that the application of the Human Rights Law would not violate the sponsor's First Amendment rights.
Specifically, the Commission held as follows:
In order to prevail, Respondents [i.e., AOH] must demonstrate that application of the Human Rights Law's prohibition against discrimination on the basis of sexual orientation to its Parade procedures would unconstitutionally infringe upon Respondents' rights of free speech, expressive association and free exercise as guaranteed by the First Amendment to the United States Constitution and/or by the New York State Constitution, Article 1, Sections 1, 3, 8 and 9. We find that Respondents have failed to make such a showing.
Respondents argue that the Parade is a celebration of Irish Roman Catholic heritage. [(footnote omitted)]. They allege that among the unwritten requirements for inclusion in the Parade is that no group admitted have a political agenda or an agenda contrary to the teachings of the Roman Catholic Church. They argue that ILGO advocates the right to pursue a homosexual lifestyle and is thus in violation of Church doctrine.
We disagree with the Administrative Law Judge's analysis that, under the Roberts test, the relief requested by Complainant cannot be granted. Rather, we find that under this test the relief requested by Complainant must be granted.
The characteristics of the Parade define the parameters of the First Amendment rights implicated. After examining the record below and reviewing the parties' comments, we find that the St. Patrick's Day Parade is a secular event which is a celebration of a broad range of values surrounding Irish heritage. In her Findings of Fact, the Administrative Law Judge found that the Parade celebrates secular, religious, cultural, historical, civic and numerous other aspects of Irish culture. . . . Respondents' associational right is thus the right to associate with persons who support the broad celebratory goals of ...