Americans seem to be getting more comfortable in public discussions of nudity or partial nudity, and many could be ready to accept more of it in public places. It is a serious topic, especially when it involves constitutional demands to treat the sexes equally when government writes laws to control how much public nudity will be officially tolerated. There is, however, still a risk that it will be trivialized, or reduced to the level of schoolyard smut. Let’s get serious and see how this is playing out right now.
Ocean City’s ban on topless women on its beach
About five years ago, a woman on the Ocean City, MD, beach walked up to a lifeguard and asked what would happen to her if she went topless. How that exchange went is not a matter of public record, but word of it worked its way up to Ocean City’s longtime mayor, Richard Meehan, who apparently has made campaign promises of keeping the beaches “family-friendly.”
At about the same time, a woman named Chelsea Eline asked the county attorney for Worcester County the same question, seeking a formal legal answer. In response, the county attorney asked the state attorney general’s office for an opinion. (More on that below.)
In the meantime, Mayor Meehan and the City Council did not wait for legal advisories. On June 9, 2017, the city posted a notice on its website saying that its beach “is not a topless beach and will not become a topless beach.” One day later, the Council met in an emergency session and unanimously adopted a new ordinance.
The local law began with this statement: “There is no constitutional right for an individual to appear in public nude or in a state of nudity.” It quickly moved into a subset of that statement, discussing whether government could constitutionally make its control on public nudity specific to a person’s gender. The ordinance concluded that it could, declaring: “Protecting the public sensibilities is an important governmental interest based on an indisputable difference between the sexes. Further, a prohibition against females baring their breasts in public, although not offensive to everyone, is still seen by society as unpalatable.”
It went on to specify that the ban meant “the showing of the female breast with less than a fully opaque covering of any part of the nipple.” Apparently sensing that it needed to take some action against males, too, it banned “the showing of the covered male genitals in a discernibly turgid state.” (It did not specify why it deemed the two phenomena to be equally offensive.)
These prohibitions extended not only to all of the beach area, but also to every other public place in the city. Conviction for violating the ordinance carries a potential fine of up to $1,000.
Four days after the ordinance was adopted, the state attorney general’s office weighed in, declaring: “It is our view that Maryland courts would hold that prohibiting women from exposing their breasts in public while allowing men to do so under the same circumstances does not violate the federal or state constitution.” (That formal opinion said it would not be constitutional for government to ban a woman from breast-feeding her baby in public, which Maryland law specifically protects.)
Six months later, Chelsea Eline and four other women turned to federal court. Joining Eline in suing were Megan A. Bryant, Rose R. Macgregor, Christine E. Coleman, and Angela A. Urban.
The questions their lawsuit raised: Does it violate the U.S, Constitution’s Fourteenth Amendment guarantee of legal equality for government to restrict topless public appearances by women but not by men? Does that differing legal treatment also violate the Maryland State Constitution’s Article 46, which bans the denial of legal equality “because of sex.”
It is important to note that such differences in treatment need not meet the most rigorous standard under the Fourteenth Amendment, but it must do so under Maryland’s Article 46. Treating the sexes differently under the national Constitution can be justified if that serves an important government policy and if the method used is substantially related to that policy. By contrast, Maryland’s test demands that such differences serve a compelling government interest and must be narrowly tailored to do so and must be the least restrictive way to carry it out. (To the lay reader, the highlighted words may not seem to be much different, but in the courts the difference can be profound. That is why, among other reasons, women’s advocates want an Equal Rights Amendment added to the U.S. Constitution, which would be enforced using the stricter test that Maryland imposes.)
The five women did not testify themselves in court, but their case was presented by an Indiana public health professor, who said that “public sensibilities” are changing across the nation, and naked female breasts are not the issue that they once were, especially when women went to the beach in long-sleeved, ankle-length dresses.
In two rulings – in December 2018 and April 2020 — Chief U.S. District Judge James K. Bredar of Baltimore upheld the 2017 Ocean City ordinance against both challenges. He said he was not persuaded by the expert witness for the women, because she had not analyzed what “public sensibilities” are in Ocean City specifically.
What guided Judge Bredar’s rulings? In the main, he said he was bound by a decision in 1991 by the U.S. Court of Appeals for the Fourth Circuit; that is the appeals court that reviews cases from Maryland and other Atlantic Coast states. That 1991 ruling upheld a U.S. Fish and Wildlife Service rule banning in all national wildlife areas the same kind of ban on female toplessness. Applying the more tolerant standard of the Fourteenth Amendment, the appeals court found no violation. Judge Bredar said he could see no difference between that rule and the Ocean City ban.
Judge Bredar also noted that rulings have been made in state and federal courts across the country with the same outcome. And he noted, without discussing it at length, that the U.S. Supreme Court had refused to hear an appeal by three New Hampshire women challenging a similar topless ban in Laconia, N.H. (Supreme Court records show that the Justices turned aside that appeal, without comment, on January 13 of last year. It did so after examining the case at only a single private conference; that is unusual for a case in which the Justices have any significant interest.)
The appeal by the New Hampshire women failed even they though told the Supreme Court that there is now a split in lower federal and state courts, with one federal appeals court striking down a similar ordinance in Fort Collins, Colo.
The next step for the Ocean City challenge: After losing in Judge Bredar’s court, the five women challengers took their case to the Court of Appeals for the Fourth Circuit. It held a hearing before three judges last Wednesday. A key issue: will it abandon its 1991 ruling on the same question? That may well depend upon how it analyzes where the nation’s sensibilities are now, how gender equality law has changed in recent years, and how it feels about the variety of other court rulings that have favored bans like Ocean City’s. Its ruling is not likely to emerge for a few months. Whether this will set up the next case for the Supreme Court can’t be known at this point. (The Fort Collins case with a ruling contrary to other courts’ decisions was not appealed to the Supreme Court, after that city repealed its ordinance.)