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Eline v. Town of Ocean City Maryland

United States District Court, D. Maryland

December 20, 2018

CHELSEA C. ELTNE et al, Plaintiffs
v.
TOWN OF OCEAN CITY, Md., Defendant

          MEMORANDUM AND ORDER

          James K. Bredar, Chief Judge.

         I. Background

         On December 7, 2018, the Court held a hearing on Plaintiffs' motion for preliminary injunctive relief (ECF No. 21). Both Plaintiffs[1] and the Defendant were represented by counsel and presented evidence and arguments in support of their respective positions. Plaintiffs, all of whom are females, argue 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.) From that contention, Plaintiffs further argue 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.) Plaintiffs thus assert violation of their rights under the Fourteenth Amendment to the United States Constitution and its counterpart in the Maryland Declaration of Rights, Article 46.

         II. Standard for Preliminary Injunctive Relief

         In Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), the Supreme Court set forth the following standard for preliminary injunctive relief:

A plaintiff seeking a preliminary injunction must establish that [she] is likely to succeed on the merits, that [she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [her] favor, and that an injunction is in the public interest.

Id. at 20. Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22. Courts are called upon to balance a plaintiffs claims of injury against the burdens to be imposed upon the defendant, and they must "pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Id. at 24.

         III Text of the Ordinance

         Sec. 58-191. - Legislative findings.

(a) There is no constitutional right for an individual to appear in public nude or in a state of nudity. It does not implicate either the First Amendment to the United States Constitution, the right to privacy, or a protected liberty interest. It lacks any communicated value that might call for First Amendment protection. Nor does it implicate the right of privacy or the right to be alone: one does not have right to impose one's lifestyle on others who have an equal right to be left alone.
(b) Whatever personal right one has to be nude or in a state of nudity, that right becomes subject to government interest and regulation when one seeks to exercise it in public,
(c) A gender-based distinction challenged under the equal protection clause of the United States Constitution is gauged by an important governmental interest that is substantially accomplished by the challenged discriminatory means.
(d) 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.
(e) The equal protection clause does not demand that things that are different in fact be treated the same in law, nor that a government pretend there are no ...

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