All across the country cities and towns seem hell bent on preventing women from showing their breasts in public while placing no such limitation on men. To stop this discrimination based on gender, an organization called “Free the Nipple” has filed lawsuits (or amicus briefs in cases brought by others) challenging these ordinances, and with the exception of a recent Tenth Circuit Court of Appeals case, has been losing. One of those cases, in which the New Hampshire Supreme Court upheld such a law, could be heard by the Supreme Court of the United States this term.
The Justices should decide to hear this case because these discriminatory laws raise important issues of gender equality. My bet, however, is that the Justices will not hear the dispute partly because it would expose some of the limitations, defects, and hypocrisies of originalism, and possibly because not all of the Justices are fully ready to treat men and women equally. Whether women should have a constitutional right to go topless whenever and wherever they want (if men share the same freedom) might be an issue that the conservative Justices feel should be decided by local community standards despite the 14th Amendment’s Equal Protection Clause.
The town of Laconia, New Hampshire has an ordinance providing that, “it shall be unlawful for any person to knowingly or intentionally, in a public place: . . . [a]ppear in a state of nudity.” Nudity is 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.” Ginger Pierro was doing yoga topless on a beach in this town when she was arrested by the police for violating the nudity ban, and subsequently two other women were arrested for the same conduct.
The New Hampshire Supreme Court, like the vast majority of courts that have addressed this issue, sustained the law. According to the justices, the statute did not “classify on the basis of gender. The ordinance prohibits both men and women from being nude in a public place.” But wait, you may ask, the law allows men to show their breasts in public but not women so what legal magic did the justices use to transform a facially discriminatory law into a gender-neutral law? Citing cases from sea to shining sea, the justices said, “The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity.” Additionally, “unlike the situation with respect to men, nudity in the case of women is commonly understood to include the uncovering of the breasts.”
To uphold the law, it was important for the justices to classify it as gender neutral because the Supreme Court has held that laws that make distinctions based on gender are unconstitutional unless they substantially further a strong state interest and have an “exceedingly persuasive justification.” This test is very difficult to satisfy so the justices engaged in serious mental gymnastics. The dissent’s argument was far more persuasive: “Laconia’s ordinance facially classifies on the basis of gender: if a woman and a man wear the exact same clothing on the beach, on Laconia’s main street, or in a backyard “visible to the public,” the woman is engaging in unlawful behavior — but the man is not . . . . This is a gender-based classification.”
Leaving aside for the moment issues of the appropriate role of judges in our constitutional democracy, it should be obvious that laws that allow men to show their breasts in public but prohibit women from doing so perniciously further dangerous sexual stereotypes. As one of the few courts to overturn such laws recently held, “inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” Further, to the extent cities and towns defend these laws on the basis that women’s breasts have sexual implications that men’s breasts do not, “public sensibilities grounded in prejudice and unexamined stereotypes [should] not become enshrined as part of the official policy of government.”
Gender-neutral bans on public nudity may or may not implicate other constitutional concerns such as freedom of expression but laws that treat men and women differently based on their inherent biological differences should be looked at by all of us with extreme skepticism. For these reasons, cities and towns across America should repeal these discriminatory bans that take away a choice that men possess but women do not.
Such modern thinking, however, is unlikely to be popular among elected lawmakers raising the issue of what judges should do with such laws. If one does not care about the original public meaning of the 14th Amendment’s Equal Protection Clause, and if one discards the objectively silly reasoning of the New Hampshire Supreme Court that such laws somehow do not discriminate against women, the answer is easy. The United States Supreme Court has warned that sexual stereotypes and traditional and outdated mores about the sexes cannot justify laws that classify people differently based on their gender. These statutes allow men to express themselves and wear comfortable clothing in ways that local governments deny to women based solely on traditional sexual perceptions of women’s breasts. There is no suspense about how the four liberal Justices would rule in this case.
However, it is also true that few people would have interpreted the 14th Amendment in 1868 to prohibit such laws, which may pose a concern for the Court’s conservative justices. In 1873, the Supreme Court sustained an Illinois law that did not allow women to practice law, and as late as 1948, the Justices upheld a Michigan law that did not allow women to be bartenders unless they were the wife or daughter of the owner of the bar. In the latter case, the Justices said, “Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws.” Although these overtly paternalistic cases are no longer good law, they do support the argument that, as an originalist matter, the 14th Amendment allowed egregiously discriminatory laws and thus would permit a ban on women showing their breasts in public.
So, what is an originalist to do (especially ones like Justice Thomas who have not been shy about overturning precedents in the name of original meaning)? Adherents of the most popular flavor of originalism these days, original public meaning originalism, could, as I show below, consistent with their own philosophy strike these laws down. The problem is that if they were to do so, the flaws of originalism as a legitimate method of constitutional interpretation would be clearly exposed, and the Justices might not want to go down that road.
Professor Lawrence Solum, one of the most important originalist scholars in the United States, and the only one to testify about originalism during the then-judge Gorsuch Supreme Court confirmation hearing, has said the following about gender discrimination and the original meaning of the 14th Amendment:
In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender . . . . Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. [Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.
As I’ve written elsewhere, most originalists today share this view, including Justice Neil Gorsuch, who in his new, and as I just wrote, slightly less than awful book “A Republic If you Can Keep It,” said this: “originalism teaches only that the Constitution’s original meaning is fixed; meanwhile of course new applications of that meaning will arise with new developments ….” This sleight of hand allows originalists to strike down laws that would have been constitutional when the text at issue was ratified. Of course, allowing judges to discard the original expectations of the people who wrote and ratified the original Constitution because times change is also exactly what non-originalists believe.
The obvious inherent elasticity of public meaning originalism could present problems for some of the Justices if the Supreme Court decides to review the New Hampshire supreme court decision. Moreover, even if the conservative Justices could find a way to justify such a clear deviation from the 14th Amendment’s original meaning in order to strike down the law, it is also quite possible that the five Republican men who make up the Court’s right wing would struggle with the idea that women have the same rights as men to show their breasts in public. Such a conclusion, as the weaknesses of the New Hampshire opinion shows, would be challenging to justify given the Court’s recent case law.
Given those difficulties, the Court may well decide to leave this issue to the lower courts. That would be a shame because in 2019 it should be obvious to all that laws treating women differently and less favorably than men based on inherent differences between the sexes have no place in a modern society.