State Courts Disagree over Freedom of the Breast

SERVING PHILADELPHIA, NEWTOWN SQUARE AND NEARBY AREAS IN PENNSYLVANIA

As evidenced by the lack of Go Topless Day protests, the issue of topfreedom has not surfaced in Pennsylvania, but it has become a big issue in two neighboring states: New York and New Jersey. In these two states, the courts recently considered very similar ordinances prohibiting women’s right to appear topless in public. The New Jersey case involved a woman who was staging an explicit protest designed to restore the right for a woman to go topless at a historically nude beach. The relatively secluded beach near the Delaware border was traditionally topless until the passage and enforcement of an ordinance by a nearby municipality, which banned persons from appearing “in a state of nudity or in an indecent or lewd dress or garment, or to make any indecent or unnecessary exposure of his or her person.” The woman and her husband were both on the beach wearing swimsuit bottoms but no tops. The woman was cited and fined $500. Her husband was not. The woman appealed the citation on the basis of four arguments:

  1. The ordinance was unconstitutionally vague (What is nudity? What is indecent?)
  2. The ordinance denies equal protection under the Fourteenth Amendment (Why are only women’s breasts indecent?)
  3. The ordinance denies equal protection under the New Jersey State Constitution (Does the public’s interest in covering my breasts really outweigh my right to uncover them?)
  4. The beach’s historical tradition as a nude sunbathing site should be protected under the “public trust” doctrine. (If the beaches belong to all of us, we should be free to enjoy them as we choose.)

The New Jersey Superior Court denied the appeal on all four grounds. Of particular interest is the Court’s rationale in denying points 2 and 3. In denying that the ordinance violated the Equal Protection Clause, the Court invoked “the important governmental interest in safeguarding the public’s moral sensibilities,” which in this case are “based on an indisputable difference between the sexes” and the fact that society considered “females baring their breasts in public . . . as unpalatable.” With respect to equal protection under the State Constitution, the Court found that a woman’s right to appear topless in public “is not central to the ordinary person’s life enjoyment or liberty,” and is outweighed by they government’s “legitimate need to protect the public from unwelcome exposure to nudity.” On the other hand, the New York Court of Appeals found that a similar ordinance in Rochester was not applicable to women’s breasts, thereby allowing topfreedom in New York without explicitly finding the ordinance unconstitutional. However, a minority concurring opinion explains the reasons why the ordinance should be unconstitutional:

One of the most important purposes to be served by the equal protection clause is to ensure that "public sensibilities" grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government. Thus, where "public sensibilities" constitute the justification for a gender-based classification, the fundamental question is whether the particular "sensibility" to be protected is, in fact, a reflection of archaic prejudice or a manifestation of a legitimate government objective.

In other words, simply because women, racial minorities, and other social groups have been discriminated against in the past, it does not mean that the courts have a “legitimate need” to continue that discrimination. Even without finding such ordinances unconstitutional, this decision has been upheld on a number of occasions, establishing de facto topfreedom for women in New York. Although neither case is germane to Pennsylvania law, it is hard to sympathize with some parts of the New Jersey decision. The New Jersey Court denied that a woman’s decision to bare her breasts could be considered a form of protected speech, and in its declaration that a woman’s right to control exposure of her breast “is not central to the ordinary person’s life enjoyment or liberty” seems insensitive. Breast augmentation is the most popular cosmetic surgery procedure in the United States because of the importance women place on their breasts as part of their identity and femininity. The popularity of the procedure is also a direct consequence of ordinances against women baring their breasts in public. By censoring women’s natural breasts, we are promoting the unnatural breasts on TV and in magazines, creating unrealistic expectations about women’s breasts that can only be met by artificial breasts.

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