Eugene Volokh, writing in the Wasington Post, makes most of the right points about the recent decision by the Charlotte Pride Parade to exclude a "Gays for Trump" float. He quotes the organizing committee noting that everyone who applies signs an acknowledgement that final say about whom to include rests with the committee and is decided on the basis of whether the group generally supports or opposes their broader political agenda. He notes that neither North Carolina nor Mecklenburg County ban this kind of viewpoint discrimination by parades. Finally, of course there is the most important point that nongovernmental organizations have a constitutional right not to associate with groups they disapprove of. This supercedes the other two points.
What I don’t like about the essay is that he doesn’t really take the opportunity to remind the gay community that this cuts both ways. He does mention Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, a unanimous 1995 Supreme Court decision which upheld the Boston St. Patrick’s Day Parade’s right to exclude an Irish gay and lesbian pride group, and that ticks the right box, but for me that doesn’t quite go far enough. LGBT activist groups are at the forefront of efforts to use courts to supress viewpoints they don’t like. We’re living in the age where private mom-and-pop bakers are told they must supply cakes for gay and lesbian weddings against their professed Christian values, and where CEOs are fired for simply holding private views against gay marriage. This is a community that, as a whole, really needs to hear the message that the court system is not a bludgeon in their warchest, but something that is supposed to impartially interpret the law. If the Charlotte Pride Parade can exclude a group of gays who happen to support President Trump but nevertheless want to express their broader participation in the gay cause and gay community – and they surely can, under the First Amendment – then the gay community as a whole needs to acknowledge that Hurley v. Irish-American Gay, Lesbian, Bisexual Group of Boston was correctly decided, and really needs to acknowledge that leaving Christian bakers and photographers who are willing to leave money on the table over the gay marriage issue alone to run their businesses in peace is what a good citizen does.
And in fact, there is good reason to believe that Charlotte Pride doesn’t really understand that tolerance is a two-way street. As recently as a year ago, for example, they were among the organizations complaining when the United Methodist Church was threatening to suspend a Charlotte pastor for holding a same-sex marriage ceremony in her church. Like the Charlotte Pride Parade, the United Methodist Church has a set of clear bylaws that prohibit the performance of same-sex marriage ceremonies in their churches, and it is implausible that the pastor in question was unaware of them when she applied for the job. Has anyone from Charlotte Pride stepped forward to walk back on that position, to acknowledge that if their organization can exclude, so can others? It’s not, after all, as though it is difficult for a gay couple in Charlotte to find a place to hold a commitment ceremony.
So, I think Volokh’s essay is incomplete. Yes, Charlotte Pride has the right to exclude the "Gays for Trump" float from their parade – on pretty much whatever grounds they want, as far as I’m concerned. No one should begrudge them that right. But let’s be honest about this – that right is not in jeopardy. The tide is on Charlotte Pride’s side at the moment. Whatever may have been true in the past, given the current political climate it is simply a fact that they are significantly less likely to have their right of association denied by a court than, say, the United Methodist Church is. A complete essay on this topic needs to remind them of that, insist on consistency from them, and acknowledge that the gay community has in recent years – ironically perhaps – been one of the greater threats to the free exercise of assembly and speech rights in operation.
Rights are for everyone – equally.