Protecting Expressive Rights
PROTECTING EXPRESSIVE RIGHTS ON SOCIETY'S FRINGE:
SOCIAL CHANGE AND GAY AND LESBIAN ACCESS TO FORUMS
Elizabeth M. Koehler
University of North Carolina at Chapel Hill
100 Rock Haven Rd. #G-204
Carrboro, NC 27510
Phone: 919-962-1204 (office); 919-969-8183 (home)
email: [log in to unmask]
A student paper submitted to the Law Division
Association for Education in Journalism and Mass Communication
Annual Convention: Anaheim, Calif., August 10-13, 1996
ABSTRACT: "Protecting Expressive Rights on Society's Fringe:
Social Change and Gay and Lesbian Access to Forums
by Elizabeth M. Koehler, University of North Carolina at
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This paper analyzes access to forum disputes involving gay and
lesbian groups and reveals an intimate tie between the relative social
acceptance of marginalized groups and their relative success in suing for access
to public forums.
Sociological theories of deviance generally agree that marginalized
or deviant groups and subcultures will attempt to achieve social acceptance by
exposing myths that perpetuate stigmatized views of themselves. Communicating
with the public is therefore crucial to these groups, and often makes gaining
access to forums pivotal to the success of their efforts. Not surprisingly
then, disputes in cases involving access to forums usually involve groups or
individuals who hover tenuously about the margins of society -- the "fringe,"
the political activists, the outcasts -- those attempting to find their way into
the mainstream. Their messages and viewpoints tend to challenge the mainstream
and often need protection from its tyranny.
It is reasonable to suggest that the outcomes of cases involving
access to forums are very much affected by the level of social acceptance or
social "normalcy" enjoyed by a given group of individuals. Ultimately, this
analysis suggests that courts will grant access only where it is at least to
some extent socially acceptable to do so.
Protecting Expressive Rights
Protecting Expressive Rights on Society's Fringe:
Social Change and Gay and Lesbian Access to Forums
I do not believe that it can be too often repeated that the
freedoms of speech, press, petition and assembly guaranteed by
the First Amendment must be accorded to the ideas we hate or
sooner or later they will be denied to the ideas we cherish.
-- Justice Hugo Black
In 1940, the U.S. Supreme Court determined that the city of New
Haven, Connecticut, could not restrain the speech of Jehovah's Witnesses on city
streets "just because it was likely to raise the ire of listeners." In a
similar decision in 1992, the Court ruled that local officials were not
permitted to have a licensing scheme for parades that allowed them to adjust
parade permit fees according to the amount of violence they thought might break
out at a given parade (and the resulting amount of security they deemed
necessary for public safety). The Court said such decisions required officials
to consider the content of each parade, rendering the licensing scheme
non-content-neutral and thus unconstitutional.
In both of these cases, the U.S. Supreme Court employed some
version of public forum and time, place and manner restrictions analysis to
disallow the threat of violence as reasonable grounds for censorship of public
expression. On the other hand, in 1985, the Supreme Court of Maine upheld a
school board decision to cancel activities scheduled for a "Symposium on
Tolerance" -- a day-long program of speakers and activities put together by a
teacher who was concerned about the recent killing of a gay high school student
at his school -- because of the threat of violence. The scheduled speakers
hailed from diverse backgrounds -- the physically challenged, the aged, and
others, including a lesbian activist. Upon hearing of the scheduled appearance
of the lesbian activist, angry and concerned parents called the school to
complain. The school board ultimately made the decision to cancel the
"Tolerance Day" activities, ironically because of what essentially amounted to
intolerance -- threats of violence and bomb scares. The Supreme Court of Maine
upheld that decision, partly because the high school was not considered to be a
traditional public forum.
Such themes are rather commonplace in cases involving public forum
analysis. The disputes in these cases usually involve groups or individuals who
hover tenuously about the margins of society -- the "fringe," the political
activists, the outcasts -- those attempting to find their way into the
mainstream, those with messages and viewpoints that challenge the mainstream and
often need protection from its tyranny. It is therefore reasonable to suggest
that the outcomes of cases involving public forum analysis, as well as the
reasoning employed within these decisions, are very much affected by the level
of social acceptance or social "normalcy" enjoyed by a given group of
individuals. For instance, Margaret A. Blanchard points out that Salvation Army
was not always the respected charitable organization that it is today. During
the nineteenth century, it was considered a "fringe religious group" and its
members were not permitted to parade through the streets playing instruments,
ostensibly because the racket disturbed both people and horses. Eventually, in
1886, the Salvation Army won a major battle when a Michigan court acknowledged
the importance of the public street to a minority group (such as the Salvation
Army) attempting to get its message out, to gain support, and to recruit new
members. As a result, the court struck down rules that restricted the group's
access to public streets. It was one victory that led to many others across the
country for the Salvation Army. However, as Blanchard notes, the Salvation
Army's fortune did not necessarily rub off on other "socially unacceptable"
groups, who continued to have problems with various and subtle forms of
The "Tolerance Day" example cited above suggests that some sort of
relationship between social and legal acceptance still exists today. The
purpose of this paper will be to find evidence of this connection through an
analysis of access-to-forum cases involving gay and lesbian individuals and
organizations. A critical review of access to forum cases involving gay and
lesbian persons and their concerns may reveal an intimate tie between the
relative social acceptance of marginalized groups and their relative success in
suing for access to public forums, and may thereby offer some clues about the
relationship -- if any -- between societal norms and First Amendment law. The
question is this: Can one observe the movement of a marginalized group from
social banishment to some level of social acceptance through the arguments and
outcomes of legal cases involving access to forums and the concerns of gay men
and lesbians? Answering this question will first require an explanation of
sociological deviance theory, public forum doctrine and time, place and manner
restrictions, as well as a review of the relevant literature.
Sociological deviance theory and public forum analysis. It has
been suggested in modern discourse on sociological theories of deviance that,
generally, marginalized or deviant groups and subcultures will attempt to change
the image the public has of them, achieving that alteration "through moral
entrepreneurship . . . [exposing] the myths that perpetuate [stigmatized]
views." To accomplish this task, groups need to communicate with the public
-- either one-on-one, through speeches and rallies, through the production of
their own literature and/or newspapers, or by gaining attention in the
mainstream media. A particular group's success will depend on several social
factors, such as its success in transforming personal troubles into public
issues (i.e., the government should stay out of everyone's bedrooms, not just
those of gay persons); its success in legitimating its members lives (i.e.,
homosexuality is biological or, at least, not an indication of mental illness);
its success in exposing myths and redefining the public's perception of the
problem (i.e., gay men are not all pedophiles; gay persons can also become
involved in long-term, loving relationships, etc.); its success in promoting the
visibility of the oppression of its members (i.e., keeping statistics on hate
crimes perpetrated against gay men and lesbians); and its success in altering
public policy (i.e., lobbying for the repeal of sodomy laws and fighting back
anti-gay initiatives and ordinances).
In fact, deviance, it appears, might be best understood as a
process instead of a set of static characteristics. According to sociologists
Erdwin Pfuhl and Stuart Henry, it is too simplistic to define deviance as a set
of "behaviors and attributes" that people who feel threatened in some way have
defined as "problematic." Instead, deviance should actually be defined by
way of the "complex social process" that leads to its creation. The idea
that something or someone is deviant seems to arise "when people who are in a
position to impose their judgments find other people's behavior in one way or
another 'unsettling.'" At some point, those feeling "threatened seek to avoid
the persons [they find threatening] and negate the conditions they find
The effects of a marginalized group moving through this "deviance
process" are felt in all aspects of social interaction, including law. Just as
when a social movement's "concerns and values" begin to closely approximate
those of the "elites" in the mainstream media and politics, "the more likely
they are to become incorporated in the prevailing news frames," so too will
laws and judicial reaction to those in that movement begin to change. First of
all, at least one U.S. District Court judge has noted that judges "are generally
chosen from the mainstream of their communities. They are likely to share many
views which are popular with their contemporaries." And in a much larger
and historical sense, legal historian Kermit Hall has noted that American legal
has been one of systematic change, of law and society reacting to
and reinforcing one another. . . . Habit and culture incline us to think of the
legal system as stable certain, orderly, and fair. Yet our legal history
suggests that it has been more a river than a rock, more the product of social
change than the molder of social development.
In some sense then, because public forums are often the only forums
available to those with an unpopular message, they may form an interesting
intersection between law and society, one where sociological theory might be
observable in court decisions involving access to public forums.
Early American colonists were quite accustomed to using public
forums such as streets, parks and town squares to espouse their views and "win
public support for their causes." However, such activities grew disruptive
during the abolitionist period and "fell into disfavor." In the late
nineteenth century, the public forum began its very slow comeback, recognized in
Hague v. C.I.O. in 1939, and fully and explicitly endorsed and explicated by
the U.S. Supreme Court in 1983. It was not often litigated in the courts
until the 1970s.
Briefly, the Court has decided that all types of government-owned
property are not public forums simply by virtue of being owned by the
government. Instead, government property falls into three categories:
traditional (or quintessential) public forums, designated (or limited) public
forums and non-public forums. Traditional public forums include those places
historically and "immemorially" used for free expression, such as city streets,
parks and town squares. Designated public forums would be those facilities
owned by government and opened by the government for expressive activity on the
part of citizens. Content-based regulations in both traditional and designated
public forums are held to the strict scrutiny standard of review, meaning speech
can only be restricted for a compelling state interest, and such restriction
must be narrowly drawn. Non-content-based regulation in these forums must fall
within acceptable time-place-manner parameters: It must be narrowly tailored,
meet a significant government interest, and must not constitute a complete ban
A non-public forum is government-owned property that has not been
opened for "indiscriminate expressive activity by the general public," such as
military bases and prisons. Speech may be restricted in these forums based on
content, as long as that restriction is "reasonable in light of the purpose of
the forum." The restriction of speech in a private forum is left, for the
most part, to the owner of the forum.
Public forum doctrine has been the subject of volumes of literature
in legal journals. However, with the exception of chapters in media law
textbooks and First Amendment treatises, most of the literature dealing with
access to public forums is very case-specific. Only a few scholars have
discussed, to some extent, the somewhat elusive nexus between gay and lesbian
issues and the law of free expression. Kenneth L. Karst, in Boundaries and
Reasons: Freedom of Expression and the Subordination of Groups, is an example
of the kind of treatment this area of the law usually receives -- cursory and
shallow. Karst gives extremely brief attention to the link between gay issues
and the continually emerging doctrine of free expression, mentioning
access-to-forum issues but not exploring them in any depth. The same is
true of an American Law Reports annotation, which focuses primarily on
"freedom of association," a right which has been found in the shadows of the
First Amendment, and deals only peripherally with the public forum issues
involved in the recognition of gay student groups by universities.
Larry W. Yackle gives the very recently contested matter of the
participation of gay groups in St. Patrick's Day parades in New York and Boston
an exhaustively detailed treatment in Parading Ourselves: Freedom of Speech at
the Feast of St. Patrick. While only addressing this very narrow aspect of
gay and lesbian access to forum issues, Yackle's treatment is very thorough, and
raises interesting questions about the rights of political, cultural and
intimate association. However, Yackle's investigation ignores the wider range
of public forums to which gay men and lesbians have sought access.
Paul Siegel deals with that wider variety of issues -- from
parades, to phone book advertisements, to high school and college newspaper
advertisements and subway signs. However, his piece is neither comprehensive
nor highly analytical. With precious little analysis, Siegel's goal in his
article, Lesbian and Gay Rights as a Free Speech Issue: A Review of Relevant
Caselaw, is apparently to give the reader a descriptive overview of the many
places gay rights cases intersect with issues of free expression -- and not
merely in the area of public forum. Siegel also addresses the implications for
gay persons of the "freedom of association," "symbolic conduct" and other
issues. His is a useful guide to further research and several rather obscure
sources, but again, is merely descriptive.
Though none of them mention any parallels to lesbian and gay
concerns, several other articles deal with situations one might see as analogous
to that of lesbians and gay men. For instance, there were the free speech
rights won and lost by groups such as the Nazis in Skokie, Ill.; the
communists during the Red Scare; African American civil rights marchers in
the 1960s; feminists; and, more recently, religious groups such as
anti-abortion protesters and those lobbying for prayer in public schools.
However, these analyses tend to be very case-specific and none of them has
employed a sociological framework to analyze what has happened to these other
Analysis of Cases
This paper will involve a traditional qualitative analysis of
access to public forum cases involving gay men, lesbians and organizations
concerned with lesbian and gay issues. Citations for these have been gleaned
from the few works that have addressed gay and lesbian access to forum issues,
as well as in the footnotes of the cases themselves, through Shepardizing, and
through a limited LEXIS search to acquire the most recent or as-yet unreported
cases. A total of 41 decisions were found for inclusion in this study.
The earliest case found for inclusion in this analysis was a
California Public Utilities Commission decision from 1969. The number of cases
has grown somewhat steadily over the past 27 years, with eight cases in the
'70s, 12 cases during the '80s, and at least 16 cases so far in the '90s. While
the decisions have become more numerous, so have defeats for litigants
representing gay and lesbian concerns. Whereas seven of the 11 decisions handed
down prior to 1985 were decided in favor of gay and lesbian groups seeking
access to some kind of forum, only three of the 26 decisions since then have
gone in their favor, beginning with five denials of access in 1985 alone. A
closer examination of the cases reveals, however, some interesting links between
social mores and decisions in access to forum cases involving gay men and
lesbians that are worthy of more detailed exploration.
Claims in this area have fallen into four categories: 1) cases in
which a homosexual or homophile organization (hereinafter loosely referred to as
"gay group") attempts to gain access to a particular forum (be it eventually
determined public or private); 2) cases in which a gay group attempts to gain
some sort of recognition from a state entity that brings with it access to a
particular forum or forums; 3) cases in which a non-gay or anti-gay organization
attempts to block access to a particular forum by a gay group; and 4) cases in
which a gay group attempts to block access to a forum by some other, non-gay or
anti-gay organization. The vast majority of the decisions analyzed for this
study fall into the first of these categories. A small minority are distributed
amongst the other three.
It is most useful, therefore, to examine the cases in terms of the
time period in which they occurred. As noted above, although most of the
decisions analyzed in this study were handed down since 1985, the majority of
the decisions handed down prior to 1985 resulted in protection of the expressive
rights of the gay groups involved. Decisions handed down during and after 1985
have largely gone against them.
It is worth noting before beginning the analysis that the terms
"homophobia" and "homophobic" are used in the following analysis to describe the
behavior (or attitudes attending such behavior) of taking action against (or
denying access to) gay groups simply and/or fundamentally because one disagrees
with, is uncomfortable with, or is morally outraged by homosexuality -- either
homosexual conduct and/or simply the idea of being homosexual or living what
many refer to nebulously as "the homosexual lifestyle."
Decisions prior to 1985. Early cases involving access of gay
groups to public forums commonly discussed the First Amendment rights of gay
persons very favorably. With the exception of the two earliest cases -- both
California Public Utilities Commission decisions in 1969 and 1970 involving
rather blatant homophobia -- decisions usually portrayed gay men and
lesbians as underdogs, representing a minority interest that needed protection
in the face of the tyranny of some "majority" or "traditional" voice. Very
frequently, the majority opinion noted the homophobia or hypocrisy of those
attempting to restrict the First Amendment speech and associational rights of
lesbians and gay men.
For instance, when the Alaska Gay Coalition sought to be listed in
the 1976-77 Anchorage Blue Book, a paperback guide to services and organizations
in the greater Anchorage area, Alaskan Supreme Court Justice Burke noted that
the mayor admitted in his testimony that part of the reason he denied the group
access to the book was his "personal aversion to homosexuality." Burke went
on to note that it was "apparent that the Gay Coalition was deleted from the
Blue Book solely because it was a homosexual organization," and not for any
In Gay Students Organization of the University of New Hampshire v.
Bonner in 1974, Chief Judge Coffin, writing for the First Circuit U.S. Court of
Appeals, observed that the "underlying question" was whether "group activity
promoting values so far beyond the pale of the wider community's values is also
beyond the boundaries of the First Amendment." He concluded that, at least
in the case of a student group attempting to gain recognition by a university
and access to its facilities, such a group's expression clearly fell within the
boundaries of First Amendment protection.
And in Wood v. Davison, the U.S. District Court for the Northern
District of Georgia decided that administrative officials at the University of
Georgia infringed gay students' First Amendment rights of speech, assembly and
association when it denied the Committee on Gay Education access to university
facilities. The court specifically noted that "it is not the prerogative of
college officials to impose their own preconceived notions and ideals on the
campus by choosing among proposed organizations, providing access to some and
denying a forum to those with which they do not agree."
Decisions since 1985. More recent cases, however, offer more mixed
views of the First Amendment rights of lesbians and gay men, frequently
discussing them in tandem with the First Amendment rights of whatever group was
opposing their interest in a particular suit, thereby weighing them against more
established and traditional viewpoints. In one of the 1992 St. Patrick's Day
parade decisions in New York City, the Irish Lesbian and Gay Organization (ILGO)
sought an injunction against the parade organizers' failure to grant its members
permission to march in the St. Patrick's Day parade. If granted, the injunction
would have permitted the gay group to march under its own banners in the annual
parade. The U.S. District Court for the Southern District of New York refused
to grant the injunction. While the court explicitly recognized that ILGO would
"suffer irreparable harm through exclusion from the parade," it also noted that
granting the injunction "would cause harm of similar order" to the parade
organizers, who argued that their First Amendment right to free expression and
association "entitle[d] them to conduct a parade that vindicates their loyalty,
respect and deference to the beliefs taught by the Roman Catholic Church."
Since the gay group, therefore, could not show "a balance of hardships
'decidedly'" in its favor, it lost the case.
An unfortunate side-effect of this framing is that gay groups tend
to end up looking like the unruly rabble in such portrayals, setting up their
opponents for the public sympathy the gay groups sought to acquire in the first
place by gaining access to a forum in which to present their perspective. In
fact, not since 1983 have the First Amendment rights of a gay group seeking
access to a public forum prevailed in a decision in which the gay group's First
Amendment rights were explicitly matched up against its opponents' First
Amendment rights. And that 1983 decision is the only such decision that
resulted in a victory for the gay group involved in the litigation.
This phenomenon manifested itself as a simple directing of
animosity toward the gay group involved (as opposed to a transfer of sympathy
from the gay group to its opponents) in a series of decisions in the Olivieri v.
Ward case in the mid-1980s. Since at least 1976, the annual Gay Pride parade,
like many major parades in New York City, has run down Fifth Avenue, along which
is located St. Patrick's Cathedral. The parade has been held annually since
1970, the year after the Stonewall Inn riots, to celebrate the liberation of
Christopher Street (address of the Stonewall) and, symbolically, the liberation
of gay men and lesbians everywhere. St. Patrick's Cathedral, located as it is
along the parade route, and representing as it does the conservative and
anti-homosexual views of the Roman Catholic Church, annually had been the site
of peaceful demonstration by the Catholic gay group Dignity. The group had
always conducted a prayer service for the duration of the Pride parade, singing
hymns and "conveying symbolically its love for the Church and . . . its
conviction that God's love and understanding extends to all people, regardless
of their sexual orientation, and . . . that the Church is the people of God,
rather than its mere institutions, buildings and leaders." All such
demonstrations had been completely peaceful and without incident until 1981,
when two men (who eventually formed what they called the Committee for the
Defense of St. Patrick's) were arrested for assaulting the demonstrators and
interfering with their activities. Thus began a drawn-out legal battle over
which groups had the right to demonstrate where and when, and what limits police
could reasonably impose on such demonstrations and the frequently attendant
However, this extensive history was detailed only in the second
decision in the Olivieri case, handed down by the U.S. District Court for the
Southern District of New York in 1986. In the first reported decision, handed
down by the U.S. Court of Appeals for the Second Circuit in 1986, the court
simply accepted, without scrutiny, the New York City Police Department's claim
that it did not have "sufficient resources to control what -- in New York City
Police Commissioner Ward's opinion -- is a reasonable risk of a riot on Fifth
Avenue." This first Olivieri opinion was very conciliatory to the police
department (and backed its decision to "freeze," or bar access to, the sidewalk
in front of St. Patrick's for the duration of the parade) and gave the distinct
impression that Dignity was to blame for the disruption. The court was
reluctant to go against the wishes of the police department and insist it find a
way to control the volatile situation "while permitting the very Dignity
demonstration that threatens the ability of the police to maintain control of
the situation." After the U.S. District Court's extensive recount of the
history of the demonstrations, the Second Circuit Court of Appeals reconsidered
(in the third Olivieri decision), noting that wherever First Amendment rights
are concerned, "a court must independently determine the rationality of the
government interest implicated and whether the restrictions imposed are narrowly
drawn to further that interest," and ruled that restrictions imposed on
demonstrators by the New York City Police Department "were not drawn solely to
further the government's conceded interest in public safety." In the end, a
unique compromise was reached whereby the free speech rights of both groups were
restricted (and protected) to some extent. The police were to allow no more
than 25 members of one group to stage a protest on the sidewalk in front of the
cathedral for 30 minutes, followed by 30 minutes of totally restricted access to
the sidewalk, and then 30 minutes of demonstration by no more than 25 members of
the other group.
Possible reasons for the change in decisions. The contrast between
early and more recent decisions involving gay group access to particular forums
may indicate a trend toward restricting access to forums for lesbians and gay
men. More likely, however, it is mostly a reflection of the kinds of cases
brought early on and those brought more recently. Earlier cases tended to
involve attempts by gay and lesbian student groups to gain access to campus
facilities. Decisions tended, at least on appeal, if not also at the trial
level, to go in the students' favor. This is hardly surprising in light of the
climate of student political protest that existed on college campuses in the
1970s and the increasing tendency of universities to relinquish the "role of
parens patriae of their students which they formerly occupied," at least
partially because it became apparent after the U.S. Supreme Court's opinion in
Healy v. James that "constitutional restraints on authority apply on
campuses of state supported educational institutions with fully as much sanction
as public streets and in public parks."
In addition, earlier cases tended to discuss the social aspects of
the issues more than more recent decisions have. Doing so almost inevitably
involved a recognition of "the tension between deeply felt, conflicting values
or moral judgments" and a concomitant recognition that, for every minority group
"there are sectors of the community to whom its values are anathema." There
was also a recognition of the notion that University administrators "have the
unenviable task of trying to maintain a precarious balance between the rights of
members of the academic community and the wishes of the taxpayers and alumni who
support that community." For some reason, such realizations led to a
careful and deliberate balancing and, more often than not, to a conclusion that
merely finding a particular group's communication "shocking and offensive" is
not grounds enough to censor that communication.
Oddly, the earlier cases also discussed the issue of whether a
meeting of a group of gay persons constituted or would inevitably lead to
"illegal activities" more frequently than the more recent decisions (partly
because, one might suppose, many sodomy laws have since been repealed or
declared unconstitutional). It might be suspected that such discussion would
almost automatically lead to a knee-jerk restriction of access to forums for gay
groups. While it did occasionally lead to such reactions at the administrative
or trial levels (e.g., while student organization approval committees frequently
approved recognition of gay groups, deans of student affairs would just as
frequently snatch such recognition away before benefits could be realized),
such restriction was almost always overturned at the appellate level. One judge
even saw fit to make light of the illegal conduct issue. When a gay group
sought recognition and endorsement by the Rhode Island Bicentennial Commission
in 1976 (and thereby, access to the "Old State House" for its public educational
meeting), a U.S. District Court judge mused at "the irony" of the Bicentennial
Commission's reluctance to permit the gay group to use the Old State House
"because they might advocate conduct which is illegal. Does the Bicentennial
Commission need reminding that, from the perspective of British loyalists, the
Bicentennial celebrates one of history's greatest illegal events?"
More recent cases have tended to involve more "hot-button," highly
emotionally charged issues (including gay involvement in parades closely tied to
Catholic doctrine, such as the St. Patrick's Day Parades, or military service,
such as Veteran's Day parades), perhaps because of the growing strength and/or
proliferation of the gay liberation movement itself or an increase in the
visibility of gay men and lesbians and an accompanying appreciation for the
diversity within this group (i.e., that there are gay Catholics and retired gay
veterans). A good number of these decisions have centered around the St.
Patrick's Day parade controversies in Boston and New York. The city of New York
was referred to in one of the Olivieri v. Ward decisions as "a great and
pluralistic city that has long flourished as one of the nation's most fertile
seedbeds for new and often disturbing ideas." But how pluralistic the city
needs to be and whose ideas are more disturbing are often perplexing questions
in this litigation. The conflicts in these cases have pitted First Amendment
rights of free speech and association against each other and against civil
rights ordinances designed to protect minority groups from discrimination.
One difficulty in these cases is deciding which group is actually
the oppressed minority. In the U.S. Supreme Court's decision in Hurley v.
Irish-American Gay Group of Boston, Justice Souter rested the Court's decision
on the protection of free speech, noting that "[d]isapproval of a private
speaker's statement does not legitimize use of the Commonwealth's power to
compel the speaker to alter the message by including one more acceptable to
others." The "private speaker" he referred to was the St. Patrick's Day
parade organizing body; the message "more acceptable to others" was presumably
one that included the voice of gay Americans of Irish heritage. This is quite a
switch from the traditional way of interpreting these cases, wherein the message
that is most acceptable to others usually does not include the voices of gay
people. The latest 1996 decision concerning the New York St. Patrick's Day
controversy is more along the lines of what one might expect to see in these
cases. In this case, Judge John G. Koeltl wrote, "It is undisputed that ILGO's
members have a First Amendment right to celebrate their Irish heritage and their
pride in their sexual orientation as well as their moral outrage at their
exclusion from the St. Patrick's Day Parade."
The emotional charge involved also leads to accusations of
homophobia on the part of police by the gay groups involved. The courts have
sometimes found no basis for such claims, as in the 1995 case of Irish Lesbian
and Gay Organization v. Bratton, and other times have found substantial
proof of such allegations, as in the 1986 case of Olivieri v. Ward. In the
1994 Boston case of Irish-American Gay Group v. Boston, the high court of
Massachusetts determined that, after refusing to permit the gay group to march
in its parade, the St. Patrick's Day Parade organizers could not then "cloak
their discriminatory acts in the mantle of the First Amendment."
Discussion and Conclusions
If there is a trend in cases involving gay groups and access to
public forums, it is in the direction of less access and greater restrictions on
free expression for lesbians and gay men. However, the meaning of this trend is
easily apprehended. It does not necessarily imply a lessening of First
Amendment freedom for lesbians and gay men, for a review of the types of cases
brought and the nature of the issues they have raised reveals a change in the
very nature of claims brought in this area of the law, as well as a change in
societal attitudes toward gay people. Not unimportant is the climate on college
campuses in the '70s, as litigation brought by gay groups to gain access was
dominated by student groups during this period. As rules at universities began
to loosen up and the old reliance on en loco parentis began to fade, cases
brought by gay groups attempting to gain access to university facilities
dwindled (possibly because access was more and more routinely granted without
the need for litigation).
The recent slew of cases in which gay groups request access to
certain parades (of whose social make-up they see themselves as a subgroup) is
indicative of continuing gay liberationist struggles to achieve recognition and
acceptance as normal, diverse and rooted in some sort of tradition or history of
their own. The difference is that, instead of attempting to gain access, as
they did in the '70s, to a forum in which they are welcomed and tolerable
(because of a relative unintrusiveness), gay groups are now attempting to gain
access to forums in which they are completely unwelcome and extremely intrusive
(having dared to tread on deeply rooted moral traditions).
There is, in fact, evidence in court decisions of the changing of
social attitudes toward gay men and lesbians. The courts opened doors where it
was socially acceptable to do so (as evidenced by the fact that student
organization committees accepted gay groups before upper-level, conservative
administrators were willing to do so), and is currently closing them where it is
socially acceptable to do so. The unexpected finding here is that, instead of
observing the movement of gay men and lesbians "from social banishment to some
level of social acceptance," one can only make the observation that gay men and
lesbians have moved from one level of social acceptance to some other level of
social banishment. This new level of banishment, however, is not in the same
forum or context as the previous level of social acceptance. One could say that
the old level of social acceptance (in the 1970s) was to be found where gay
groups attempted to gain access to morally neutral forums in very
non-threatening ways that most people could ignore or tolerate, and the new
level of social banishment is to be found where gay groups have attempted to
gain access to forums that carry substantial moral meaning, an effort many
people find both threatening and offensive. That gay groups have not found
social acceptance at this new level does not preclude them from ever finding
acceptance there; it does, however, preclude them from winning court cases in
this new forum until they do find acceptance there.
Table of Cases
Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (1978).
Cantwell v. Connecticut, 310 U.S. 147 (1939).
Catholic War Veterans of the United States, Inc. v. City of New
York, 576 F. Supp. 71 (S.D.N.Y. 1983).
Clark v. Community for Creative Non-violence, 468 U.S. 288, 104 S.
Ct. 3065, 82 L. Ed. 2d 221 (1984).
Communist Party v. SACB, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625
Council on Religion and the Homosexual v. PT&T, 70 P.U.C. 471 (Cal.
Forsyth County v. Nationalist Movement, 112 S.Ct. 2395, 120 L.Ed.2d
Gay Activists Alliance v. Board of Regents of the University of
Oklahoma, 638 P.2d 1116 (1981).
Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir. 1976).
Gay and Lesbian Services Network Inc. v. Bishop, 832 F. Supp. 270
(W.D. Mo. 1993).
Gay and Lesbian Services Network Inc. v. Bishop, 841 F. Supp. 295
(W.D. Mo. 1993).
Gay and Lesbian Students Association v. Gohn, 850 F.2d 361 (8th Cir.
1988), rev'd, 656 F. Supp. 1045 (W.D. Ark. 1987).
Gay Law Students Association v. Pacific Tel. & Tel. Co., 595 P.2d
592 (Cal. 1979).
Gay Lib v. University of Missouri, 558 F.2d 848 (1977), cert.
denied, 434 U.S. 1080, 98 S.Ct. 1276, 53 L.Ed.2d 789 (1978).
Gay Rights Coalition of Georgetown University v. Georgetown
University, 496 A.2d 567 (D.C. App. 1985), rev'd, 536 A.2d 1 (D.C. App. 1987).
Gay Students Organization of the University of New Hampshire v.
Bonner, 509 F.2d 652 (1st Cir. 1974).
Gay Student Services v. Texas A&M University, 737 F.2d 1317 (5th
Gay Veterans Association v. American Legion, 621 F. Supp. 1510
Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939).
Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972).
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
115 S.Ct. 2338, 132 L.Ed.2d 487 (1995).
Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of
Boston, 418 Mass. 238, 636 N.E.2d 1293 (1994).
Irish Lesbian & Gay Org. v. New York State Board of Ancient Order of
788 F. Supp. 172 (S.D.N.Y. 1992).
Irish Lesbian & Gay Org. v. Bratton, 882 F. Supp. 315 (S.D.N.Y.
1995), aff'd, 52 F.3d 311 (2d Cir. 1995).
Irish Lesbian & Gay Org. v. Bratton, No. 95 Civ. 1440 (JFK), 1995
U.S.Dist. LEXIS 14249 (S.D.N.Y. September 24, 1995).
Irish Lesbian & Gay Org. v. Giuliani, No. 96 Civ. 1398 (JGK), 1996
U.S.Dist. LEXIS 2445 (S.D.N.Y. March 2, 1996).
Irish Lesbian & Gay Org. v. Giuliani, No. 96 Civ. 1398 (JGK), 1996
U.S.Dist. LEXIS 3108 (S.D.N.Y. March 14, 1996).
Long Beach Lesbian and Gay Pride Inc. v. City of Long Beach, 17 Cal.
Rptr. 2d 861, 14 Cal. App. 4th 312 (Cal.App. 1993).
Loring v. BellSouth Advertising and Publishing Co., 339 S.E.2d 372,
117 Ga.App. 307 (1986).
Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir.
1976), cert. denied, 430 U.S. 982 (1977).
New York County Board of Ancient Order of Hibernians v. Dinkins, 814
F. Supp. 358 (S.D.N.Y. 1993).
Olivieri v. Ward, 766 F.2d 690 (2d Cir. 1985).
Olivieri v. Ward, 637 F. Supp. 851 (S.D.N.Y. 1986).
Olivieri v. Ward, 801 F.2d 602 (2d Cir. 1986).
Otway v. City of New York, 818 F. Supp. 659 (S.D.N.Y. 1993).
Perry Education Association v. Perry Local Educators' Association,
460 U.S. 37 (1983).
San Francisco Arts and Athletics, Inc. v. United States Olympic
Committee, 483 U.S. 522 (1987).
Schwitzgebel v. City of Strongsville, 898 F. Supp. 1208 (N.D. Ohio
Sinn v. Daily Nebraskan, 638 F. Supp. 143 (1986), aff'd., 829 F.2d
Society for Individual Rights v. PT&T, 71 P.U.C. 662 (Cal. 1970).
Solmitz v. Maine School Administrative District, 495 A.2d 812
South Boston Allied War Veterans Council v. Boston, 875 F. Supp. 891
(D. Mass. 1995).
Stonewall Union v. City of Columbus, 931 F.2d 1130 (6th Cir. 1991).
Student Services for Lesbians/Gays and Friends v. Texas Tech
University, 635 F. Supp. 776 (N.D. Tex. 1986).
Toward a Gayer Bicentennial Committee v. Rhode Island Bicentennial
417 F. Supp. 632 (1976), aff'd, 417 F. Supp. 642 (D. R.I. 1976).
Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972).
Adamec, Justene M. Defining the Limited Public Forum in California:
Women's International League for Peace and Freedom v. City of Fresno. 17 Sw.
U. L. Rev. 287-320 (1987).
Black, Brian S. The Public School: Beyond the Fringes of Public
Forum analysis? 36 Vill. L. Rev. 831-874 (1991).
Blanchard, Margaret A. Revolutionary Sparks: Freedom of Expression
in Modern America (New York: Oxford University Press, 1992).
Cain, Patricia A. Litigating for Lesbian and Gay Rights: A Legal
History, 79 Va. L. Rev. 1551-1641 (1993).
Day, David S. The End of the Public Forum Doctrine. 78 Iowa L.
Rev. 143-203 (1992).
Downs, Donald Alexander. Nazis in Skokie: Freedom, Community, and
the First Amendment (Notre Dame, Ind.: University of Notre Dame Press, 1985).
Ehrmann, Susan. Lamb's Chapel v. Center Moriches Union Free School
District: Creating Greater Protection for Religious Speech through the
Illusion of Public Forum Analysis. 1994 Wis. L. Rev. 965-1003 (1994).
Farber, Daniel A. and John E. Nowak. The Misleading Nature of
Public Forum Analysis: Content and Context in First Amendment Adjudication, 70
Va. L. Rev. 1219-1266 (1984).
Gitlin, Todd. The Whole World is Watching. (Berkeley, Calif.:
University of California Press, 1980).
Horwitz, Paul. Anti-Abortion Protests and the Public Forum:
Ontario (Attorney General) v. Dieleman. 17 Advoc. Q. 466-501 (1995).
Karst, Kenneth L. Boundaries and Reasons: Freedom of Expression
and the Subordination of Groups. 1990 U. Ill. L. Rev. 95-156 (1990).
Krotoszynski, Ronald J., Jr. Celebrating Selma: The Importance of
Context in Public Forum Analysis. 104 Yale L.J. 1411-1440 (1995).
Pember, Don R. Mass Media Law, 6th ed. (Dubuque, Iowa: William C.
Pfuhl, Erdwin H. and Stuart Henry. The Deviance Process, 3d. ed.
(New York: Aldine de Gruyter, 1993).
Rohr, Marc. Communists and the First Amendment: The Shaping of
Freedom of Advocacy in the Cold War Era. 28 San Diego L. Rev. 1-116 (1991).
Rydstrom, Jean F. Annotation. Validity, Under First Amendment and
42 USCS 1983, of Public College or University's Refusal to Grant Formal
Recognition to, or Permit Meetings of, Student Homosexual Organizations on
Campus. 50 A.L.R. Fed. 516 (1980).
Salomone, Rosemary C. From Widmar to Mergens: The Winding Road of
First Amendment Analysis. 18 Hastings Const. L.Q. 295-323 (1991).
Saphire, Richard B. Reconsidering the Public Forum Doctrine. 59 U.
Cin. L. Rev. 739- 788 (1991).
Schur, Edwin M. The Politics of Deviance: Stigma Contests and the
Uses of Power (Englewood Cliffs, N.J.: Prentice-Hall Inc., 1980).
Siegel, Paul. Lesbian and Gay Rights as a Free Speech Issue: A
Review of Relevant Caselaw, in Gay People, Sex, and the Media (New York: The
Haworth Press Inc., 1991).
Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech: A
Treatise on the First Amendment 10.02.
Yackle, Larry W. Parading Ourselves: Freedom of Speech at the
Feast of St. Patrick, 73 B.U. L. Rev. 791-871 (1993).
 Communist Party v. SACB, 367 U.S. 1, 137, 81 S.Ct. 1357, 6
L.Ed.2d 625 (1961) (Black, J., dissenting), quoted in Toward a Gayer
Bicentennial Committee v. Rhode Island Bicentennial Foundation, 417 F. Supp.
632, 642 (D. R.I. 1976).
 Cantwell v. Connecticut, 310 U.S. 147, 164 (1939).
 Forsyth County v. Nationalist Movement, 112 S.Ct. 2395,
2401, 120 L.Ed.2d 101 (1992).
 Solmitz v. Maine School Administrative District, 495 A.2d
812 (1985), as interpreted by Paul Siegel, Lesbian and Gay Rights as a Free
Speech Issue: A Review of Relevant Caselaw, in Gay People, Sex, and the Media
 Margaret A. Blanchard, Revolutionary Sparks: Freedom of
Expression in Modern America 64 (1992).
 Erdwin H. Pfuhl and Stuart Henry, The Deviance Process 220
(3d. ed. 1993). See also Edwin M. Schur, The Politics of Deviance: Stigma
Contests and the Uses of Power 25-29 (1980).
 Pfuhl and Henry, supra note 6, at 222.
 Id. at 220-221.
 Id. at 23.
 Id. at 24.
 Schur, supra note 6, at 4.
 Todd Gitlin, The Whole World is Watching, 284 (1980).
 South Boston Allied War Veterans Council v. Boston, 875 F.
Supp. 891, 913 (D. Mass. 1995).
 Blanchard, supra note 5, at 64.
 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
 Perry Education Association v. Perry Local Educators'
Association, 460 U.S. 37 (1983).
 Daniel A. Farber and John E. Nowak, The Misleading Nature
of Public Forum Analysis: Content and Context in First Amendment Adjudication,
70 Va. L. Rev. 1219, 1221 (1984).
 But see Clark v. Community for Creative Non-violence, 468
U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984), wherein it was decided an
organization could not stage a demonstration concerning the plight of the
homeless on the first night of winter by sleeping in tents on Washington Mall in
Washington, D.C., on the basis of a National Park Service regulation banning
camping on the Mall.
 Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech:
A Treatise on the First Amendment _10.02  at 10-21 - 10-24. See also Don R.
Pember, Mass Media Law 99-108 (6th ed. 1993).
 See Pember, supra note 20, at 106-108.
 Several articles dealing with public forum analysis more
generally include Brian S. Black, The Public School: Beyond the Fringes of
Public Forum Analysis? 36 Vill. L. Rev. 831 (1991); David S. Day, The End of the
Public Forum Doctrine, 78 Iowa L. Rev. 143 (1992); Farber and Nowak, supra note
18; and Richard B. Saphire, Reconsidering the Public Forum Doctrine, 59 U. Cin.
L. Rev. 739 (1991).
 Kenneth L. Karst, Boundaries and Reasons: Freedom of
Expression and the Subordination of Groups, 1990 U. Ill. L. Rev. 95, 117-22
(1990). For further exploration of legal issues involving the concerns of gay
men and lesbians generally, see Patricia A. Cain, Litigating for Lesbian and Gay
Rights: A Legal History, 79 Va. L. Rev. 1551 (1993).
 Jean F. Rydstrom. Annotation. Validity, Under First
Amendment and 42 USCS _ 1983, of Public College or University's Refusal to Grant
Formal Recognition to, or Permit Meetings of, Student Homosexual Organizations
on Campus. 50 A.L.R. Fed. 516 (1980).
 Larry W. Yackle, Parading Ourselves: Freedom of Speech at
the Feast of St. Patrick, 73 B.U. L. Rev. 791 (1993).
 Siegel, supra note 4.
 See, e.g., Donald Alexander Downs, Nazis in Skokie:
Freedom, Community, and the First Amendment (1985).
 See, e.g., Marc Rohr, Communists and the First Amendment:
The Shaping of Freedom of Advocacy in the Cold War Era, 28 San Diego L. Rev. 1
 See, e.g., Ronald J. Krotoszynski, Jr., Celebrating Selma:
The Importance of Context in Public Forum Analysis, 104 Yale L.J. 1411 (1995).
 See, e.g., Justene M. Adamec, Defining the Limited Public
Forum in California: Women's International League for Peace and Freedom v. City
of Fresno, 17 Sw. U. L. Rev. 287 (1987).
 See, e.g., Susan Ehrmann, Lamb's Chapel v. Center Moriches
Union Free School District: Creating Greater Protection for Religious Speech
through the Illusion of Public Forum Analysis, 1994 Wis. L. Rev. 965 (1994);
Paul Horwitz, Anti-Abortion Protests and the Public Forum: Ontario (Attorney
General) v. Dieleman, 17 Advoc. Q. 466 (1995); and Rosemary C. Salomone, From
Widmar to Mergens: The Winding Road of First Amendment Analysis, 18 Hastings
Const. L.Q. 295 (1991).
 There is also a body of related cases wherein students
have asked for funding or merely endorsement by their university, without
mention of any attending privileges, such as access to university facilities or
mailing services. These cases are not entirely on-point for this study and
therefore will not be discussed here. See, for example, Gay and Lesbian
Students Association v. Gohn, 656 F. Supp. 1045 (W.D. Ark. 1987), rev'd, 850
F.2d 361 (8th Cir. 1988); Gay Activists Alliance v. Board. of Regents of the
University of Oklahoma, 638 P.2d 1116 (1981); Gay Lib v. University of Missouri,
558 F.2d 848 (8th Cir. 1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55
L.Ed.2d 789 (1978); and Student Services for Lesbians/Gays and Friends v. Texas
Tech University, 635 F. Supp. 776 (N.D. Tex. 1986).
 Council on Religion and the Homosexual Inc, v. P.T.& T.
Co., 70 P.U.C. 471 (Cal. 1969) and Society for Individual Rights Inc. v. P.T.&
T. Co., 71 P.U.C. 622 (Cal. 1970). Commissioner J.P. Vukasin Jr.'s concurring
opinion in Council on Religion is a clear example of the homophobia referred to
here. Referring to homosexuals as "victims of moral aberration" and "perverts,"
Vukasin said it would be "highly improper" for the Commission to require P.T.&
T. to permit several organizations (including the Council on Religion and the
Homosexual, Society for Individual Rights Inc., Tavern Guild of San Francisco
Inc. and Daughters of Bilitis Inc.) to advertise in its San Francisco Directory
under the heading "Homophile Organizations, . . . charged, as it [the
Commission] is, with the responsibility of protecting the public interest." He
added that "[t]he disorders of drug addiction, alcoholism, and homosexuality
cannot be corrected by encouraging those afflicted to further persevere in such
behavior. Additional immersion will only bring about emotional destruction to
the unfortunates involved." In both of these decisions, dissenting opinions by
Commissioners A.W. Gatov and Thomas Moran mocked the majority opinion by
revealing its faulty reasoning and duplicity. Gatov even called the decision in
Council on Religion a "travesty," and Moran said the decision was clearly
discrimination "against a substantial segment of the population because it holds
unpopular views." Incidentally, gay groups did not fare any better in a more
recent "Yellow Pages" case. While garnering some staunch support in dissenting
opinions, gay groups have not yet won such a case. The questions of First
Amendment protection and public forum access did not arise in these cases.
Instead, discussion centered on the offensiveness of permitting Yellow Pages
advertisements to include words like "lesbian" and "gay." For example, in
Loring v. BellSouth Advertising and Publishing Corp. (339 S.E.2d 372, 374, 117
Ga.App. 307 ), BellSouth Advertising & Publishing Corp. was permitted by
the Georgia Court of Appeals to refuse an ad on this basis, even though
BellSouth admitted that, during the three years in which it had already run the
ad in its Yellow Pages, "not one complaint from the public or a customer [had]
 Alaska Gay Coalition v. Sullivan, 578 P.2d 951, 955
 509 F.2d 652, 658 (1st Cir. 1974).
 351 F. Supp. 543, 549 (1972). See also Toward a Gayer
Bicentennial Committee v. Rhode Island Bicentennial Foundation, 417 F. Supp.
632, 637 n.6 (1976) (deciding that asserting that "certain practices advocated
by the 'Gay Movement' 'are of questionable legality' " was "clearly an
impermissible basis" for denying a gay group access to a public forum); Catholic
War Veterans of the United States v. City of New York, 576 F. Supp. 71, 74
(1983) (observing that, in asserting their First Amendment freedom to practice a
religion of their choice to argue that a gay group should no longer be able to
march by a Catholic cathedral, plaintiff religious groups actually were
"assuming a right to be protected from speech and expression with which they
disagree); and Gay Student Services v. Texas A&M University, 737 F.2d 1317, 1330
(1984) (determining that resting a decision to not recognize a gay group on the
argument that doing so would "encourage more homosexual conduct, resulting in an
increase in the number of persons with . . . psychological and physiological
problems" was evidence of " 'undifferentiated fear or apprehension' that . . .
'is not enough to overcome the right to freedom of expression.' ").
 The Irish Lesbian and Gay Organization v. New York State
Board of Ancient Order of Hibernians, 788 F. Supp. 172, 179 (S.D.N.Y. 1992).
 Id. See also Gay Veterans Association Inc. v. American
Legion, 621 F. Supp. 1510, 1518 (D.C.N.Y. 1985) (deciding in favor of the
American Legion after noting that "in the absence of a showing of state action,
the First Amendment rights of the American Legion defendants must also be
considered"); and Sinn v. Daily Nebraskan, 638 F. Supp. 143, 152 (D.Neb. 1986)
(noting, not surprisingly, that the refusal of a college newspaper to print the
sexual orientation of a "would-be roommate advertiser" was a "constitutionally
protected editorial decision in nowise diminished by state support or
subsidization" of the newspaper).
 Catholic War Veterans of the United States Inc. v. City of
New York, 576 F. Supp. 71 (S.D.N.Y. 1983). This case was the first case in the
continuing battles between gay groups and groups that do not want to see them
march past St. Patrick's Cathedral during the annual gay pride parade. In this
case, the Catholic War Veterans of the United States Inc., the Rabbinical
Alliance of America Inc. and Citizens Against Sacrilege in the Media Inc. sought
primarily to enjoin the 1983 gay pride parade entirely or, alternatively, to
have it rerouted so that it no longer passed by St. Patrick's Cathedral. The
U.S. District Court for the Southern District of New York said the plaintiffs
were not entitled to such relief, in spite of their assertion that they had a
right to be spared the insulting speech of the gay and lesbian marchers based on
their religious affiliations as Catholics and Jews. Relatedly, gay groups have
repeatedly demanded the right to march in the St. Patrick's Day parade because
they are proud of both their Irish heritage and their homosexual orientation,
while organizers of the St. Patrick's Day parade have maintained that gay groups
cannot march with them because homosexuality runs counter to the teachings of
the Catholic Church, which parade organizers have sworn to uphold. For a
thorough review of the history of the conflict concerning the St. Patrick's Day
parades in New York City and Boston, see Yackle, supra note 26.
 Olivieri v. Ward, 637 F. Supp. 851, 854-855 (S.D.N.Y.
 Olivieri v. Ward, 766 F.2d 690, 692 (2d Cir. 1985).
 Id. at 694.
 Olivieri v. Ward, 801 F.2d 602, 606 (2d Cir. 1986).
 Gay Alliance of Students v. Matthews, 544 F.2d 162, 166
 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). In
this case, the University of Connecticut had denied official university
recognition to the Students for a Democratic Society (SDS). In relevant part,
the Court held that the denial of access to university facilities was the
primary means by which the university had infringed the expressive rights of
members of the SDS organization.
 Wood v. Davison, 351 F. Supp. 543, 546 (1972).
 Gay Students Organization, 509 F.2d at 658.
 Wood, 351 F. Supp. at 548-549.
 Gay Students Organization, 509 F.2d at 661.
 See, e.g., Gay Rights Coalition of Georgetown University
Law Center v. Georgetown University, 536 A.2d 1 (D.C.App. 1987) and Gay Lib.,
558 F.2d 848 (1977).
 Toward a Gayer Bicentennial Committee, 417 F. Supp. at
 Olivieri, 673 F. Supp. at 873.
 115 S.Ct. 2338, 2351 (1995).
 Irish Lesbian and Gay Organization v. Giuliani, No. 96
Civ. 1398 (JGK), 1996 U.S. Dist. LEXIS 3108, at *24-25 (S.D.N.Y. March 14,
 "As to plaintiff's claim of pretext and homophobia, the
Court finds no evidence of political concern, bias or content-based motivation
by the defendants collectively, or any one of them, in denying ILGO's
application." 882 F. Supp. 315, 319 (S.D.N.Y. 1995).
 The U.S. District Court in this case pointed out that
"certain excessive sensitivity to the Catholic Church on the part of police
officials" supported its assessment that the police restriction on free
expression was not content neutral. It noted that "historical evidence of
police sympathy with the Church is evidenced in particular by the secret meeting
with Church officials in 1983 and the peculiar language of the memo it spawned
which, indeed, reads as if the police were responding to a Church request and
planned to offer post facto public safety rationales to the world at large."
Olivieri, 673 F. Supp. at 876.
 636 N.E.2d 1293, 1300, 418 Mass. 238 (1994).