United States District Court, D. Maryland
CHELSEA C. ELTNE et al, Plaintiffs
TOWN OF OCEAN CITY, Md., Defendant
MEMORANDUM AND ORDER
K. Bredar, Chief Judge.
December 7, 2018, the Court held a hearing on Plaintiffs'
motion for preliminary injunctive relief (ECF No. 21). Both
Plaintiffs 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.
Standard for Preliminary Injunctive Relief
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
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.
Text of the Ordinance
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 ...