Anti-nudity ordinance doesn’t discriminate against women who went topless, court rules

The New Hampshire Supreme Court has spoken. Women who go topless at the beach are not protected by the First Amendment.

It was a close ruling today -- 3-to-2 -- in the case against Heidi Lilley, Kia Sinclair and Ginger Pierro, who were arrested in 2016 when they refused to put their tops on at a beach in Laconia, N.H. They are members of the Free the Nipple campaign.

Sinclair started the movement in New Hampshire after her son was born and she realized there is a stigma on breastfeeding in the state.

She and the other women were charged under Laconia's ordinance which bans nudity, defined as “[t]he showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple.”

The court rejected the notion that arresting women for exposing nipples is unequal treatment under the law since the ordinance bans nudity for both men and women.

“Unlike the situation with respect to men, nudity in the case of women is commonly understood to include the uncovering of the breasts,” the court said. "The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity."

Their argument for free speech met a similar fate in the ruling.

The majority said goverment may curtail speech if it does so without regard to the content. It said an ordinance against public nudity is not content based.

"It does not target nudity meant to advance women’s rights or desexualize the female nipple," today's ruling said. "Rather, it prohibits all nudity, regardless of whether the nudity is accompanied by expressive activity."

But in their dissent, two justices contend the law clearly applies different standards to men and women and the court needed to more strictly examine the women's argument.

"When a law uses the word “female” to classify between those who

can violate the ordinance — females — and those who cannot — males — it contains a gender-based classification," they said. "We freely acknowledge that the question of whether basic physiological differences between the sexes justify disparate treatment of men and women is a more nuanced and complicated question. But classification and justification present different questions. Respectfully, we find the reasoning of the majority — which obscures the simple threshold question — needlessly convoluted and artificially complex."

Indeed, a court upends the safeguards of equal protection if it reasons that, because a law is premised upon physiological or anatomical differences between the sexes, the law does not classify by gender and therefore it need not be analyzed under strict scrutiny.

For example, because women have a longer life expectancy than men, by the majority’s reasoning, a hypothetical law that mandates that women work four years longer than men in order to qualify for a pension, or prevents women from retiring until age 70 as opposed to age 66 for

men, or reduces a woman’s social security benefits if she retires at the same age as a man, does not classify on the basis of gender. Such a law would be constitutional so long as it was “rationally related to a legitimate government interest.”

Analyzing whether a law comports with equal protection does not require that the court be blind to basic physiological or anatomical differences. In some cases, applying the constitutionally required level of scrutiny, this court might conclude that such differences justify disparate treatment under the law. However, a court subverts the basic guarantee of equal protection if it concludes that, because men and women have physiological or anatomical differences, a law that classifies on the basis of those differences does not trigger strict scrutiny.

"Indeed, 'natural' distinctions between people — including differences in skin color, gender, and country of origin — have historically served as justifications for pervasive and perverse discrimination. That is precisely why the constitution requires us to subject legislation that distinguishes between people on the basis of such differences to heightened scrutiny," the dissenters said.

• The future of NewsCut? We need your thoughts
• Good night and good news
• Storytime with Bob: A treat outside of the blog
• Favorite NewsCuts? Here are mine.