In this article I explore two important questions raised by the Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston decision. First, although the Supreme Court did not analyze the case under the Roberts framework, it suggested at the conclusion of the opinion that the case would have the same outcome under that test. The Court's dictum concerning the Roberts trilogy thus raises the question whether Hurley indicates that the Court might disturb the Roberts doctrine if presented with the opportunity. Second, the Hurley Court, in rejecting GLIB's claim, found that the parade organizers were not attempting to exclude gay and lesbian participants as such, but rather merely did not want the plaintiff to march in the parade as an organized unit with banners and other accouterments of parade participation. This finding contradicts the state court's finding of fact that the exclusion of the unit amounted to invidious discrimination on the basis of sexual orientation. The state court's rulings are plausible given the importance of outness and open declarations of sexual orientation in the struggle for gay and lesbian equality and in the construction of sexual identity. Because outness is intertwined with sexual identity, defendant's refusal to allow GLIB to march openly in the parade constituted an attempt to silence--or closet--non-heterosexual identity. Thus, even if the outcome of Hurley were justifiable on the narrow grounds of free speech, the Court's rejection of the lower court's finding of discrimination leaves open an important question for future cases involving gay and lesbian discrimination: that is, how will the Court treat future discrimination cases that turn on expressive activity of gays and lesbians, or, more precisely, will the Court resolve future disputes over outness in a way that fosters gay and lesbian equality.
This article considers these questions in three parts. In Part II, I discuss the legal and political history underlying the Hurley decision. I will specifically analyze the free speech framework applied in the Supreme Court opinion and contrast it with the Roberts test that governed the state courts' decisions. I will also discuss in greater detail the two compelling questions the decision raises. Parts III and IV attempt to answer these questions. In Part III, I examine the possible impact of Hurley upon the Roberts doctrine by analyzing how post-Hurley cases have treated speech and equality conflicts. I argue that the courts in these cases have rightfully limited the reach of Hurley and have preserved the balancing formula established in Roberts. In Part IV, I consider the negative implications, from a gay-sensitive perspective, that Hurley might have for cases involving discrimination on the basis of outness. Finally, I suggest a tentative approach for courts to follow in order to ensure that civil rights law recognizes the importance of outness and adequately protects gays, lesbians, and bisexuals from invidious discrimination.
Darren Lenard Hutchinson, Accommodating Outness: Hurley, Free Speech, and Gay and Lesbian Equality, 1 U. Pa. J. Const. L. 85 (1998), available at http://scholarship.law.ufl.edu/facultypub/391