Dis-robed: Is it time for the Supreme Court to take up toplessness?

Article by Ed Morrissey:

No, not for themselves, although not not for themselves either. A decision by Fort Collins, Colorado not to challenge a 2-1 10th Circuit ruling that struck down ordinances against topless women in their city has the impact of striking down similar statutes across six states. It might be late in the season, but the Free the Nipple movement can celebrate the win in their preferred style in Kansas, New Mexico, Oklahoma, Utah and Wyoming as well as the Rocky Mountain state:

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Fort Collins, Colorado, decided not to continue its challenge to a federal court’s decision that a ban on going topless in the city amounts to unconstitutional discrimination, NBC News reported.

The city had argued that a repeal of the ban would lead to women “parading in front of elementary schools or swimming topless in the public pool,” according to the report.
The city decided not to appeal the decision this month after spending hundreds of thousands of dollars on the legal battle already, NBC reported.

The decision to not move forward with the appeal effectively legalizes the practice in the six states covered by the 10th Circuit court, according to the report.

Jazz covered the 10th Circuit’s ruling back in February, but it’s worth revisiting again after Fort Collins’ surrender. The court ruled that the ordinance barring female toplessness had no other rational basis than gender discrimination. The city had argued that exposed female breasts had an “inherently sexual nature,” which raised “myriad concerns” about public order if unrestricted toplessness was adopted. As the ruling notes, the city outlined a few of those concerns:

The officials testified that female toplessness could disrupt public order, lead to distracted driving, and endanger children. Citing these concerns, the City claims that prohibiting only female toplessness serves to protect children from public nudity, to maintain public order, and to promote traffic safety.

Needless to say, the traffic safety argument didn’t carry the day. Instead, the court panel blamed “negative stereotypes” about the female breast for gender discrimination:

We’re left, as the district court was, to suspect that the City’s professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.

One can endlessly debate whether the sexual allure of women’s breasts are a negative, let alone a “stereotype” in the sense that it falsely portrays reality. The vast experience of human sexuality seems to clearly indicate that women’s breasts contribute to their sexual allure far more than men’s breasts to to theirs. In his dissent, Judge Harris Hartz notes that gender-discrimination laws and precedents traditionally apply where there are no rational differences between the sexes. The Fort Collins ordinance does not irrationally discriminate, Hartz wrote, but follows a long line of public-indecency laws that necessarily deal with rational physical differences between the sexes:

It is part of a long tradition of laws prohibiting public indecency—the public display of portions of the anatomy that are perceived as particularly erotic or serve an excretory function. These laws may be justified as reducing or preventing antisocial behavior caused by indecent exposure: offensive behavior ranging from assault to corruption of youth to simply distraction from productive activity. The Ordinance does not discriminate against women on the basis of any overbroad generalization about their perceived “talents, capacities, or preferences.” To the extent it distinguishes between the sexes, it is based on inherent biological, morphological differences between them. Those differences are not stereotypes. They are not statistical differences, they are not matters of degree. They are differences in anatomical structure that reflect the unique biological roles played by males and females. (Plaintiffs’ “evidence” that the breasts of men and women are essentially identical cannot be taken seriously.) We are not dealing here with a “simplistic, outdated assumption that gender could be used as a proxy for other, more germane bases of classification.” Mississippi University for Women, 458 U.S. at 726 (internal quotation marks omitted).

And, to go back to first principles in equal-protection jurisprudence, there is nothing inherently invidious to an adult of either gender in declaring that an inherent biological, morphological feature of his or her body is erotic. That view would be inconsistent with the fundamental role of sexual attraction in our most revered social institution—marriage; to believe that a spouse is sexually attractive is not to demean the spouse. I do not think the Supreme Court has embraced the view that it is.

In this light, it is apparent that the rationales supporting heightened scrutiny of gender discrimination have no purchase in the context of indecency laws based on inherent biological, morphological differences between the sexes.

I’m torn between libertarianism, subsidiarity, and conservatism on this point but end up agreeing with Hartz. It might well be that Fort Collins’ ideas on public indecency are outmoded and that their concerns are overblown, but that’s an issue for Fort Collins voters, not the federal courts. There are natural and significant differences between men and women that require specific attention in public indecency laws, which means there is a rational and essentially non-discriminatory reason for drawing those distinctions. Federal courts should have stopped when the obvious rational basis for this was made clear. (And to be honest, I’d prefer that men cover up rather than free their nipples in public, too, but I don’t live in Fort Collins.) The role of the federal judiciary is to judge cases in light of the Constitution and federal law, not to strike down laws they think are foolish. That’s the job of legislatures and voters.

Back in February, it looked likely that Fort Collins would appeal this to the Supreme Court. Now that they’re out of the action, will one of the states impacted by their forfeit take up the challenge instead? As NBC News notes, it’s ripe for cert, and thanks to another similar case, the court might end up taking both at the same time regardless:

Most other courts have rejected equal-protection challenges to bans on female toplessness, as the Tenth Circuit acknowledged in its February ruling, saying “ours is the minority viewpoint.”

But the ruling said the trend has been toward “requiring more⁠— not less— judicial scrutiny when asserted physical differences are raised to justify gender-based discrimination.”

A challenge to a local topless ban in New Hampshire is now pending before the US Supreme Court, brought by three women who appeared topless at a lakeside beach. The state supreme court acknowledged that the law treats men and women differently. But it said public exposure of the female breast “almost invariably conveys sexual overtones.”
The U.S. Supreme Court will announce later this year whether it will hear the case.

We now have the kind of split that usually merits a grant of cert by the Supreme Court. If they do take this up, it will almost certainly be one of the most-watched cases on the docket this year. Oh come on, you know what I mean."

 https://hotair.com/archives/ed-morrissey/2019/09/20/dis-robed-time-supreme-court-take-toplessness/