Gays Love The First Amendment – Except When They Don’t

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David Benkof Contributor
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Many LGBT people who run in leftie circles were pleased with last month’s ejection of women carrying Star of David pride flags from Chicago’s Dyke March. Seeing the “intersectionality” between lesbian equality and Palestinian rights, they didn’t want any hint of support for Israel at their event, even if only vaguely via symbols carried by Jewish women.

Though that clash appeared spontaneous, the coordinators of a “Slut Walk” in Chicago next month have Tweeted their intention to follow suit: “We still stand behind Dyke March Chicago’s decision to remove the Zionist contingent from their event, & we won’t allow Zionist displays at ours.”

These radical lesbian and feminist organizers insist that in a free country they have the right to control their message – and they’re correct. Constitutional jurisprudence on this the freedom of association and assembly is clear: any organization has the right to exclude groups and even whole classes of people from its membership and its events if it feels welcoming them would dilute its message.

The irony, though, is that the Dyke March would not have the freedom to expel people it considers Zionists without two important Supreme Court cases from twenty years ago in which – get this – the people suing for the right to participate were gay themselves.

In 1995, the Supreme Court unanimously decided in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston that St. Patrick’s Day officials had the right to exclude gay and lesbian contingents if they felt including them would change their message. Since the organizers were overwhelmingly pre-Pope Francis Catholics, practitioners of a lifestyle they considered sinful were not welcome.

Writing on behalf of all his colleagues, Justice David Souter wrote “One important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.”

The gay groups couldn’t cry “discrimination.” Free expression was more important.

Five years later, in Boy Scouts of America et al. v. Dale, a sharply divided Court found that the First Amendment allowed private organizations like the Boy Scouts to exclude a gay person if “the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”

Again, the Supreme Court found that gay would-be Scouts and Scoutmasters could not hide behind allegations of discrimination in forcing an organization to accept them.

Which bring us back to Chicago’s Dyke March. Had those two Court decisions gone the other way, the Jewish lesbians booted from the event could have sued for the right to participate.

There’s been a long-term war between discrimination claims and First Amendment freedoms. Because the gay community lost two battles at the turn of the millennium, LGBT groups are now free to tailor their messages by excluding outsiders.

Here’s hoping they’ll lose the next battle, too. The Supreme Court is about to consider a third clash between non-discrimination laws and the First Amendment (this time, both free expression and the free exercise of religion). Masterpiece Cakeshop v. Colorado Civil Rights Commission will determine whether the government can force people who service weddings to use their creative endeavors in a way that treats all marriages equally.

As we’re seeing in Chicago, our civil liberties don’t change when the parties switch sides. As the LGBT community ponders its stance on the wedding cake controversy, it might remember that freedom’s funny. You never know when you’re going to need it.

David Benkof is a columnist for the Daily Caller. Follow him on Twitter (@DavidBenkof) and Muckrack.com/DavidBenkof, or E-mail him at DavidBenkof@gmail.com.