4th Circuit weighs constitutionality of Ocean City’s topless ban

A seemingly divided 4^th U.S. Circuit Court of Appeals on Wednesday considered whether Ocean City’s prohibition on women going topless violates the Constitution’s guarantee of equal treatment under the law because men are permitted to go bare-chested in the Eastern Shore beach town.

Judge A. Marvin Quattlebaum Jr. said that perhaps constitutional deference is owed to the decision by the town’s elected leaders that the public display of women’s breasts would offend the residents’ sensibilities while the exposure of men’s does not.

But Chief Judge Roger L. Gregory said such a deferential exception to equal treatment might be misplaced. He said public sensibilities once justified the outlawing of same-sex intimacy and marriage between people of different races.

“We are not in the same Neanderthal environment,” Gregory said.

He cited as evidence of evolution the U.S. Supreme Court’s 2003 Lawrence V. Texas decision striking down an anti-sodomy law and its 1967 Loving v. Virginia ruling that an anti-miscegenation law was unconstitutional.

The other judge on the three-member panel, Barbara Milano Keenan, remained silent as counsel for Ocean City and five women challenging the ban squared off before the 4^th Circuit.

Devon M. Jacob, the women’s attorney, urged the appellate court to overturn its 30-year-old precedent that laws prohibiting women from going topless do not violate the Equal Protection Clause.

In 1991, the 4^th Circuit stated in United States v. Biocic that the gender-based distinction was constitutional because it was “substantially related” to the government’s “important interest” in “protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones.”

But in 2021, such “sexualization of the female body” is “archaic,” Jacob told the court.

“This case is about the agency of women to decide what to do with their bodies,” said Jacob, of Mechanicsburg, Pennsvlvania. “Nobody has been killed by a breast.”

Ocean City Mayor Richard W. “Rick” Meehan and the council adopted the ordinance in 2017 based largely on members’ own sense of public morality without having conducted a formal survey of the town’s 7,800 residents and 8 million annual visitors, Jacob said.

The town is “imposing this sexist ideology of a very small group onto the masses,” Jacob said. “We are not supposed to be imposing a morality code, but that is what we are doing here.”

Women were denied the right to vote in many states, cities and towns before the 19^th Amendment’s ratification in 1920 based on a belief that their voting would offend public sensibilities, Jacob said.

“That something might make people uncomfortable is no reason” to deny women equal treatment under the law, he added. “We need to be very careful that we’re not letting improper reasons in.”

Ocean City’s attorney, Bruce F. Bright, told the court that the mayor and council were duly elected to make decisions reflecting the town’s “public moral sensibility,” including whether its definition of prohibited public nudity should include bare female breasts.

“Their job is to take the temperature of the public on a host of issues,” said Bright, of Ayres, Jenkins, Gordy & Almand PA in Ocean City. “Protecting moral sensibilities is an important governmental objective.”

The five women sued Ocean City in 2018, arguing they had the right to appear topless in public like men. The women are Chelsea C. Eline, Megan A. Bryant, Rose R. MacGregor, Christine E. Coleman and Angela A. Urban.

The lawsuit was filed in U.S. District Court in Baltimore after city officials passed the emergency ordinance prohibiting the nude display of a person’s specified anatomical areas. Those areas included the male and female genital regions and the female breast.

Violations of the ordinance carry a fine of up to $1,000.

Local officials passed the ordinance after one of the women sent letters to local authorities stating her intention to go topless, touching off a community debate.

Chief U.S. District Judge James K. Bredar upheld the ordinance in April 2020, saying he was bound by the 4^th Circuit’s Biocic decision.

The women then sought review by the 4^th Circuit.

The appellate court did not state when it will render its decision in Chelsea C. Eline et al. v Town of Ocean City, Md., et al., No. 20-1530.