«LEORA HARPAZ* INTRODucnON When a Hearing Commissioner for the Massachusetts Com mission Against Discrimination (MCAD) ruled this year that a woman ...»
When a Hearing Commissioner for the Massachusetts Com
mission Against Discrimination ("MCAD") ruled this year that a
woman lawyer could not refuse to represent men in divorce actions
under the state's public accommodation statute, the decision set off
a firestorm of reaction. 1 In his decision in Stropnicky v. Nathan
son,2 the Commissioner refused to rule on the lawyer's First
Amendment defense, reasoning that such a constitutional challenge was beyond the scope of his authority.3 It is just that First Amend ment question that I will consider.
Stropnicky arose when an attorney, Judith Nathanson, refused to represent Joseph Stropnicky. Mr. Stropnicky sought out her services in a divorce action in order to review a separation agree ment that had been drafted by a lawyer/mediator. In refusing to represent him, Ms. Nathanson informed Mr. Stropnicky that she only represented women in divorce cases. Mr. Stropnicky thereaf ter filed a complaint with the MCAD. On February 25, 1997, a Hearing Commissioner found Ms. Nathanson's behavior to be vio lative of a state statute that outlawed discrimination in places of public accommodation. 4 The Commissioner ordered her to pay $5000 in damages to Mr. Stropnicky and to cease refusing to repre sent clients on account of their gender.
* Professor of Law, Western New England College School of Law. B.A., 1970, State University of New York at Stony Brook; J.D., 1973, Boston University; LL.M., 1975, New York University. I am grateful to Anne Goldstein for her helpful comments on an earlier draft of this article.
1. See Peter S. Canellos, Wanted: Advocate or a Free Agent? The Question Goes to the Heart of Whether Lawyers Should Work for Just Anyone, or Follow Their Own 'Moral Compass,' BOSTON GLOBE, May 18, 1997, at C1.
2. 19 M.D.L.R. (Landlaw, Inc.) 39 (MCAD Feb. 25, 1997).
3. See id. at 42.
4. See MASS. GEN. LAWS ch. 272, § 98 (1996).
WESTERN NEW ENGLAND LAW REVIEWIn hearing about the Stropnicky case, my initial reaction was that the case was strikingly similar to the case of Hurley v. Irish American Gay, Lesbian and Bisexual Groupo! Boston. s In Hurley, the United States Supreme Court ruled that the Massachusetts pub lic accommodation law could not be applied to force the South Bos ton Allied War Veterans Council ("the Council") to include the Irish-American Gay, Lesbian and Bisexual Group of Boston ("GLIB") in its St. Patrick's DaylEvacuation Day Parade. In reaching that conclusion, the Court reasoned that compelling the Council to include GLIB against its will was a clear violation of the First Amendment protection against compelled expression,6 the same doctrine that prevents a Jehovah's Witness from being forced to salute the flag?
The parallels between Stropnicky and Hurley are obvious.
Both involve applications of the Massachusetts public accommoda tion law. Both involve compelled association with a cause that is not supported by the speaker, the gay/lesbianlbisexual movement in Hurley and the plight of· men in divorce actions in Stropnicky.
There are, of course, also differences. Stropnicky involves repre sentation by a lawyer. Lawyers, in certain circumstances, have been held to have fewer First Amendment rights than other citizens. 8 Further, in Hurley, the Court concluded that the St. Patrick's Day Parade was an example of communication protected by the First Amendment. 9 An attorney repr·esenting a client in a divorce action is not as clearly engaging in First Amendment speech for several reasons. First, unlike the parade, the lawyer's expression, in the typical case, is not engaged in primarily as an act of political speech in order to inform the public. Second, the lawyer is expressing the views of her client and not necessarily her own views. While the lawyer is without doubt forced into an association with the client, First Amendment claims based on compelled association lO have not
5. 515 U.S. 557 (1995).
6. See id. at 58l.
7. See West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); Leora Harpaz, Justice Jackson's Flag Salute Legacy: The Supreme Court Struggles to Protect Intellectual Individualism, 64 TEX. L. REv. 817 (1986).
8. See Gentile v. State Bar, 501 U.S. 1030, 1074 (1991).
9. See 515 U.S. at 568 (1995).
10. See New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 13 (1988) (upholding city's ban on discrimination in places of public accommodation as applied to private clubs with more than 400 members); Board of Dirs. of Rotary Int'l v.
Rotary Club, 481 U.S. 537, 548-49 (1987) (upholding application of California antidis crimination law to prevent local Rotary clubs from excluding women from member ship); Roberts v. United States Jaycees, 468 U.S. 609, 628-29 (1984) (upholding 1998] been as successful as compelled expression claims. l l This article will examine the Supreme Court's decision in Hur ley and compare it to the decision in Stropnicky. It will then con sider whether there are sufficient distinctions between the two cases so as to defeat the First Amendment argument that was successful in Hurley. It will conclude that the differences between the two cases are not sufficiently significant from the point of view of the First Amendment and that the application of the state public ac commodation statute to a lawyer's ideologically motivated decision not to represent a client violates the First Amendment.
I. HURLEY IRISH-AMERICAN'GAY, LESBIAN AND BISEXUALGROUP OF BOSTON12 Each March 17 a parade to celebrate both St.,Patrick's Day and Evacuation Day is held in South Boston. Until 1947, the City of Boston formally sponsored the parade. In that year, the City gave permission to the South Boston Allied War Veterans Council to conduct the parade. A parade permit has been issued to the Vet erans Council each year since 1947..
In 1992, the Irish American Gay, Lesbian and Bisexual Group of Boston was formed to give gay, lesbian and bisexual persons of Irish ancestry a presence in the annual parade. The Council denied GLIB's request that it be permitted to participate in the parade, but GLIB obtained an order from a state court and the organization participated in the parade under court order. In 1993, the Council again refused GLIB permission to march and GLIB filed suit claim ing that the refusal violated the state and federal constitutions13 and application of state human rights law to prohibit the Jaycees from excluding women from membership).
11. See Mcintyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995) (striking down requirement that campaign literature contain the name of the author of the publi cation); Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 15-17 (1985) (in validating utilities commission order mandating that surplus space in utility billing envelope be made available to group disagreeing with the views of the utility); Wooley v. Maynard, 430 U.S. 705, 715-17 (1977) (enjoining enforcement of state requirement that all license plates display the state motto as applied to persons who objected to the motto on religious and political grounds); Barnette, 319 U.S. at 642 (1943) (enjoining enforcement of mandatory flag salute requirement as applied to students and their par ents who objected to participating in the salute on religious grounds).
12. 515 U.S. 557 (1995).
13. The trial court dismissed GLIB's First and Fourteenth Amendment claims be cause it found there was no state action in the Council's refusal to permit GLIB to march. See id. at 563 n.l. The Massachusetts Supreme Judicial Court did not overturn this finding. See Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of 52 [Vol. 20:49
WESTERN NEW ENGLAND LAW REVIEWthe state public accommodation law. The state courts found that the parade was a place of public accommodation within the mean ing of the state statute and that it lacked a "'specific expressive pur pose entitling the parade to protection under the First Amendment."'14 The Supreme Court reversed. It found that most parades were protected expression under the First Amendment and that the South Boston parade was no exception,15 The Council was not stripped of First Amendment protection either because the parade did not communicate a "succinctly articulable message"16 or be cause the organizers brought together various groups that partici pated in the parade and did not originate the content of the parade. 17 The Court found the state courts' application of the public ac commodation law violative of "the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message."18 Speaker autonomy in cludes the right to decide what to say as well as the right to decide what not to say. The Court had no trouble concluding that the Council had "decided to exclude a message it did not like from the communication it chose to make...."19 The Court found the point of view the Council had decided to exclude sufficiently identifiable to establish the Council's right to First Amendment protection. 20 Boston, 636 N.E.2d 1293, 1297 (Mass. 1994). The United States Supreme Court noted that the state action question was not raised in GLIB's cross-petition for certiorari or in GLIB's briefs. Moreover, GLIB specifically stated it was not pressing the state action issue when questioned at oral argument. See Hurley, 515 U.S. at 566.
14. Hurley, 515 U.S. at 563 (quoting from Appellant's Petition for Certiorari at B25); see also id. at 564 (citing Irish-American Gay, Lesbian and Bisexual Group of Boston, 636 N.E.2d at 1299).
15. See id. at 569. The only exception identified by the Court was "[i]f there were no reason for a group of people to march from here to there except to reach a destina tion, they could make the trip without expressing any message beyond the fact of the march itself." Id. at 568.
16. Id. at 569.
17. See id. at 570 ("Nor, under our precedent, does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communi cation. Cable operators, for example, are engaged in protected speech activities even when they only select programming originally produced by others.").
18. Id. at 573.
19. Id. at 574. The Court went on to state that it "is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another." Id.
20. See id. at 575-76. The Court stated that [t]he message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the