United States District Court, D. Maryland
CHELSEA C. ELINE et al, Plaintiffs
TOWN OF OCEAN CITY, Md., Defendant
MEMORANDUM AND ORDER
K. Bredar Chief Judge.
Plaintiffs have moved for preliminary
injunctive relief in this case claiming a denial of equal
protection under the Fourteenth Amendment to the United
States Constitution. (Mot. Prelim. Inj., ECF No. 21.)
Plaintiffs, who are females, contend they have a "legal
right to be bare-chested, in public, in the same places that
men are permitted to be bare-chested, for purposes other than
breastfeeding." (Mot. Prelim. Inj. Supp. Mem. 1, ECF No.
22.) They further claim the Town of Ocean City, Maryland
("Ocean City"), has denied them equal protection of
the law by enacting and enforcing Emergency Ordinance
2017-10, which bans "female bare-chestedness in public
while permitting male bare-chestedness." (Id.)
Court will hold a hearing on Plaintiffs' motion, which
has been fully briefed (ECF Nos. 27, 28), on the date set at
the end of this memorandum and order. In preparation for the.
hearing, the Court makes the following observations:
1. The United States Court of Appeals for the Fourth Circuit
has previously addressed a similar contention in United
States v. Biocic, 928 F.2d 112 (4th Cir. 1991). In that
case, the person claiming constitutional injury had been
cited for violating a United States Fish and Wildlife
regulation that prohibited, on any national wildlife refuge,
any act of indecency as defined by State or local law. The
particular law at issue was § 9.3 of the Accomack
County, Virginia, Code, which prohibited public nudity,
defined in part as "the showing of the female breast
with less than a fully opaque covering on any portion thereof
below the top of the nipple." 928 F.2d at 113. The Court
found no constitutional violation by enforcement of the code
section. With regard to equal protection, the Court assumed
without deciding "that a distinction based upon
anatomical differences between male and female is
gender-based for equal protection analysis purposes,"
but then went on to decide "that the distinction ... is
one that is substantially related to an important
governmental interest, hence does not deny equal
protection." Id. at 115. The Court identified
the important governmental interest as "protecting the
moral sensibilities of that substantial segment of society
that still does not want to be exposed willy-nilly to public
displays of various portions of their fellow citizens'
anatomies that traditionally in this society have been
regarded as erogenous zones. These still include (whether
justifiably or not in the eyes of all) the female, but not
the male, breast." Id., at 115-16.
2. The Ocean City ordinance at issue, codified as sections
58-191-194, sets forth various legislative findings,
including, "Protecting the public sensibilities is an
important governmental interest based on an indisputable
difference between the sexes. Further, a prohibition against
females baring their breasts in public, although not
offensive to everyone, is still seen by society as
unpalatable." Sec. 58-191(d). In keeping with that
finding, the ordinance prohibits public nudity, defined in
part as "[l]ess than [a] completely and opaquely covered
.. . female breast below a point immediately above the top of
the areola." Sec. 58-192(2).
3. The contested ordinance was enacted by duly elected
representatives of the public who reside in Ocean City. The
Court observes it is, at least, arguable that these
representatives are authorized to speak, through legislation,
in a manner that reflects the public's sensibilities.
4. Plaintiffs rely on one court decision from the District of
Colorado that favors their position, Free the
Nipple-Fort Collins v. City of Fort Collins,
Colorado, 237 F.Supp.3d 1126 (D. Colo. 2017). That case
is currently on appeal to the Tenth Circuit, No. 17-1103.
5. The Colorado decision appears to be an outlier, given the
various decisions in both federal and state courts that do
not favor Plaintiffs. See, e.g., Free the Nipple
-Springfield Residents Promotion Equality v. City of
Springfield, Missouri, No. 15-3467-CV-S-BP, 2017 WL
6815041 (W.D. Mo. Oct. 4, 2017); Book v. City of Daytona
Beach, Florida, No. 6:08-cv-1180-Orl-28DAB, 2009 WL
3720932 (M.D. Fla. Nov. 5, 2009); CT. v. Indiana,
939 N.E.2d 626 (Ind.Ct.App. 2010); City of Bowling Green
v. Bourne, No. WD-07-007, 2007 WL 3120191 (Ohio Ct. App.
Oct. 26, 2007); Frandsen v. County of Brevard, 800
So.2d 757 (Fla. Dist. Ct. App. 2001); New Jersey
v. Vogt, 775 A.2d 551 ( N.J.Super.Ct.App.Div. 2001).
6. This Court will, as of course it must, respect the
precedent set in Biocic.
hearing, the parties are free to present evidence on the
question of whether public sensibilities are accurately
reflected or not in the Ocean City ordinance.
hearing will be held on September 21, 2018, at 11:00 a.m., in
Courtroom 3D, United States Courthouse, 101 West Lombard
Street, Baltimore, Maryland 21201.