This article looks at a US Supreme Court case, Hurley v GLIB (1995), to consider the United States Constitution’s First Amendment both as a tool and as a site for contesting hegemonic ideas about sexuality. In Hurley, the Court allowed Boston St Patrick’s-Evacuation Day Parade organizers to exclude a group of openly gay Irish-Americans (and their supporters) who wished to march in the annual parade. The parade organizers maintained that they were not excluding the gay group as such, but rather the pro-gay message. The Court accepted this argument, ostensibly on First Amendment grounds. I argue that the holding has much broader implications. In Hurley, the Court equated the heterosexual parade organizers with their speech act, the parade. By conflating heterosexual act and identity, the Court maintained the parade as a heterosexual spectacle. At the same time, the Court rejected gay participants’ claims that public self-identification was a critical component of their identity. By separating the homosexual (speech) act of self-identification from homosexual identity, the Court was able to exclude openly gay participants while claiming only to exclude their message. In this way, the Court transformed a seemingly public celebration into a private landscape, constituted the parties as sexual subjects within this landscape, and defined the boundaries between the parties, in effect, to exclude identifiable homosexuals from marching in the parade. I suggest that, in addition to narrowing the political space for gay and lesbian expression and resistance, the decision serves to reinscribe a normalized homosexuality. It also shows the act/identity distinction to be a troubling strategy - not only a means of creating new political opportunities for collective action but a discursive tool for anti-homosexual forces as well. I conclude that tactics of inclusion may be necessary to reclaim meaningful political space.

Parades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration. (Davis, 1986)

Nowadays, the First Amendment is the First Refuge of Scoundrels. (Fish, 1994)