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Footnote 17 of the Repondents' Brief in Hurley, which speaks for
itself and which fully explains the ACLU's state-action argument:
FN17. One amicus, the American Civil Liberties Union, argues that
the state courts did not fully explore the way in which the City's
longstanding pattern of delegating responsibility for "the" Evacuation Day/St.
Patrick's Day Parade to the Council may have established a set of connecting
arrangements under which the Council, acting as a surrogate for public
authority, is obligated to exercise its delegated authority consistent with
the Fourteenth Amendment. (Br. of Amicus A.C.L.U. at 19- 22). If this case
were to be remanded, the ACLU suggests that the Supreme Judicial Court should
revisit that "state action" question. There is indeed abundant evidence in the
record, cited by the trial judge in his opinion (Cert. Pet. App. at B14-22),
that the Council's conduct of the Parade in conjunction
with City authorities constitutes state action, and that ground for affirming
the judgment of the Supreme Judicial Court is open to this Court, even though
it was raised only in a reply brief in that court, and rejected. Cf. Teague v.
Lane, 489 U.S. 288 (1989). The City's long-standing delegation of
administration of an important civic event to a nominally private party would
support such a conclusion. See Terry v. Adams, 345 U.S. 461 (1953); Smith
v. Allwright, 321 U.S. 649 (1944).
----- Original Message -----
Sent: Tuesday, April 20, 2004 9:17
AM
Subject: Re: HAnsen v. Ann Arbor Public
Schools 293 FSupp2d 780
I wasn't privy to the internal politics of the ACLU on this one, but it's
pretty clear that the organization was reluctant to take the "anti-gay rights"
point of view, despite the clear countervailing First Amendment interest of
the parade organizers. By the time the case got to the Supreme Court, the gay
rights group that was suing the parade organizers had dropped the argument,
soundly rejected by the trial court, that the parade was anything but a
private parade with no government sponsorship. For the ACLU to take the
position that a remand was in order at that point was just bizarre, and could
only be explained by either an incredible lapse in legal judgment, or, more
likely, as an "out" that allowed the ACLU to avoid the bad p.r. from its
liberal constituencies that would come from being on the "wrong" side of a gay
rights case while still not betraying its First Amendment
principles. If Mr. Spitzer has a more coherent explanation of why the
ACLU was unwilling to file a brief supporting the parade organizers, I'd love
to hear it.
In a message dated 4/20/2004 9:01:44 AM Eastern Standard Time,
[EMAIL PROTECTED] writes:
I am pleased to stand corrected.
Marc Stern
----- Original
Message -----
From: <[EMAIL PROTECTED]>
To:
<[EMAIL PROTECTED]>
Sent: Monday, April 19, 2004 6:02
PM
Subject: Re: HAnsen v. Ann Arbor Public Schools 293 FSupp2d
780
> In a message dated 4/19/04 4:58:49 PM,
[EMAIL PROTECTED] writes:
>
> >This is especially so
since in the Boston parade cases,if
> >memory serves,the ACLU did
not support the right of parade organizers to
> >exclude
marchers expressing a gay rights point of view.
>
> The ACLU's
amicus brief strongly supported the right of private parade
>
organizers to exclude marchers expressing a gay rights (or any
other)
point of view.
> I've pasted below an excerpt from the
Summary of Argument section of the
> ACLU's brief.
> Art
Spitzer
> ACLU
> Washington DC
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