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Ocean City’s topless ban survives as Supreme Court declines to hear challenge

Women in Ocean City will have to the keep their tops on.

The U.S. Supreme Court on Tuesday let stand a lower court decision that the Eastern Shore beach town’s prohibition on women going topless while permitting men to go bare-chested does not violate the constitutional guarantee of equal treatment under the law.

The justices declined without comment to hear a challenge by five women to the 4th U.S. Circuit Court of Appeals decision that the gender-based prohibition passes constitutional muster because it is “substantially related to the important governmental interest in protecting the public sensibilities of Ocean City.”

In the women’s unsuccessful petition for Supreme Court review, their attorney stated the ordinance “codifies long-standing discriminatory and sexist ideology in which women are viewed as inherently sexual objects without the agency to decide when they are sexual and when they are not.”

Devon M. Jacob cited the Supreme Court’s 2003 decision in Lawrence v. Texas, in which the justices rejected public sensibilities as a justification in striking down a law that banned sexual relations between members of the same sex.

Likewise, “Ocean City relied on the traditional moral sensibilities of a minority group of people to justify a gender-based classification that denies the equal protection of the law to all females,” wrote Jacob, a solo practitioner in Mechanicsburg, Pennsylvania. “Ocean City’s ordinance that is intended to protect traditional moral sensibilities perpetuates a stereotype ingrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.”

Ocean City waived its right to respond to the women’s petition unless the high court requested a response. The request never came.

The appeal was docketed at the Supreme Court as Chelsea C. Eline et al. v. Town of Ocean City, Md., No. 21-850.

Ocean City’s attorney Bruce F. Bright stated via email that the town is “pleased with this latest and final judicial ruling” regarding the ordinance.

“As the United States District Court and the 4th (U.S.) Circuit Court of Appeals held, the city council acted constitutionally when it passed the ordinance in 2017, and the council’s appropriate legislative decision is not subject to any further judicial challenge,” added Bright, of Ayres, Jenkins, Gordy & Almand PA in Ocean City.

Jacob did not immediately respond to a request for comment Tuesday on the Supreme Court’s denial of his request for review.

The 4th Circuit, in upholding the ordinance in August, declined to overturn its 30-year-old ruling in United States v. Biocic, which upheld the federal government’s prohibition on women going topless in national parks while permitting men to go shirtless.

The 4th Circuit said Biocic remains precedential and Ocean City leaders had sufficiently shown that public opposition to women going topless in the town remains strong.

Town leaders said they received many in-person visits, telephone calls, and emails from residents and seasonal visitors voicing strong concern with the prospect of a change in the dress code, the 4th Circuit said. By contrast, court testimony regarding the public’s evolving tolerance of exposed female breasts “offered no evidence that the public sensibilities of Ocean City residents or vacationers have evolved on that discrete issue,” the 4th Circuit added in its published decision.

“The burden of proving the ordinance’s constitutionality rests with Ocean City and it offered the only admissible evidence on the public sensibilities of Ocean City residents and vacationers,” Judge A. Marvin Quattlebaum Jr. wrote for the appellate panel.

“Accordingly, we find that Ocean City has met its burden of providing an exceedingly persuasive justification for treating the public showing of bare breasts by females and males differently in the ordinance,” added Quattlebaum, who was joined by Judge Barbara Milano Keenan. “We further hold that the prohibition on public female toplessness is substantially related to the important governmental interest in protecting the public sensibilities of Ocean City.”

Chief Judge Roger L. Gregory concurred in the court’s judgment for Ocean City, stating in a separate opinion that the appellate panel was bound by the precedent in Biocic until it is overturned by the Supreme Court.

Gregory advised the high court, if it chooses to hear the case, to be less deferential to public sensibilities on gender matters, saying a discriminatory law cannot be upheld if it “perpetuates the legal, social, or economic inferiority of women” or rests upon “archaic and overbroad generalizations about gender.”

“Viewed in this light, laws that discriminate between male and female toplessness embody problematic stereotypes through the control imposed upon the bodies of women and not men,” Gregory wrote. “By treating women’s breasts (but not those of men) as forbidden in public sight, these laws may reduce women’s bodies to objects of public gaze, reproduce the Victorian-era belief that women should be seen but not heard, and reinforce stereotypes that sexually objectify women rather than treating them as people in their own right.”

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 officials passed an 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 Biocic decision.

The women then sought review by the 4th Circuit, which rendered its decision in Chelsea C. Eline et al. v Town of Ocean City, Md., et al., No. 20-1530.


2 comments

  1. Can anyone tell me how forcing the religious views and practices of one person onto another person is considered in any way Constitutional?

    I should not be surprised, its certainly not the first time a state has failed its duty to uphold the Constitution, I present Exhibit A: Arkansas law § 5-68-204 specify Paragraph (c)(1) the words advocate and promote in its definition of what an unlawful act is. what is being advocated or promoted is irrelevant, and in the case of Arkansas law § 5-68-204 the “what” is not an act of violence, it is not destruction of property, it’s not even the use of any substances.

    “Amendment I
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    “Amendment XIV Section 1
    All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    When state or even federal civil servants ignore their duty, or fail to see how they are breaking the law by writing, passing & enforcing a law that is in violation of the Constitution, They are violating their Oath of Office, which is grounds for dismissal from the office they hold, and in essence they are giving that very piece of paper (The Constitution) no more importance than that of toilet paper.

    The “what” that Arkansas had to violate the 1st & 14th Amendments of the Constitution to “protect” the public from is the “advocating” or “promoting” (freedom of speech) an idea, or belief and ultimately the practice of living as though we could truly accept ourselves and accept others and furthermore that the human body was capable of being seen as something other than a sexual object.

    This practice or belief system has been practiced by various cultures for thousands of years throughout the Americas, Europe, the Mediterranean, Africa, the South Pacific, India etc.. and has been known by various names throughout history, but the more recent names that some people might recognize are “Naturism” or “Nudism”. often confused with the practice of “Hedonism” by those that are either unfamiliar with Naturism” or “Nudism” or currently incapable of believing the body can ever be seen as a nonsexual object.
    Much like the practice of Buddhism which does not label itself as a “religion” but as a philosophical practice it’s still considered a religion by much of the world, and protected under the law as such. it’s worth noting that with the numbers of practicing members, and the longstanding history of the practice of “Naturism” or “Nudism” meets the same criteria as other belief systems or “Religions” that are protected under the 1st 14th Amendments.

    Whenever the argument of decency or morality enter the debate about the human body, this ideology originated from extreme religious views. and most of us have forgotten where these ideas come from, and never think to question them.
    It’s a hard pill to swallow when its the only way you have ever known, and your limited experience cannot fathom an existence, where the body could ever be thought of anything more than just a sexual object.
    As we become older we are so invested in our created sense of identity, our sense of self or ego becomes selfish to protect itself, and says “I” have put too much of my life into this way of thinking, it can not be wrong, I won’t let it be. this selfishness never truly considers the “WE” or the bigger picture of humanity.

    For Humankind to move forward, note I did not say mankind, because that kind of thinking is what continues to leave women behind, And any man that is afraid to treat women as equals in every way, does not deserve the benefit of their existence, in any way. and may your life be devoid of all their blessings. start taking care of your own household, cook all your own meals, do all your own shopping, clean your own house, wash your own laundry, raise your own kids, do everything yourself that a women may be doing for you now, because many women do all of that, and still have to keep a job, while being paid less.

    Humility is an essential ingredient for Humanity to manifest. to those that would use decency and morality as a shield to “protect the public” it’s safe to say you probably hold to some belief in god, and as I recall the idea of trying to be more like god was never considered a sin, but acting like one must certainly would be.
    So I put the question to you, do you believe “god” is lustful and is incapable of self control at the site of female nipples or even genitalia of either gender? Do you believe god considers a body “created in it’s own image” to be indecent or inappropriate? do you believe god is ashamed of, or lives in fear of, his/her/it’s own body? Or do you think its possible that god lives without shame, fear or self hate of it’s own body? or the body of others?

    Okay / Ethical = I’ can’t because my belief system or religion says so.
    Not Okay / Not Ethical = You can’t because my belief system or religion says so.

    If you’re not ready to be more like god, that does not give anyone the right to force their beliefs on others and to hold them back.
    Those who are ready to be more like god should be allowed to be, if thats what they choose for themselves.

    A final note: As for the word “god” I am capable of respecting which ever definition you choose. Are you?