Nov 09, 2007 If women are barred from baring their breasts, why are men permitted to bare theirs?
Despite all the inroads made over the last few decades for gender equality, I have yet to find a court opinion barring lawmakers from banning women from baring their breasts in public.
Consequently, when defending against prosecutions involving women baring their breasts (whether on the beach, at a bar, in one’s home when the window is open, or anywhere else), my argument focus includes: focusing on any equal protection provisions of the applicable state or federal constitutions and statutes; arguments of vagueness and over breadth in the applicable statute or regulation (e.g., Maryland state law (aside from laws governing adult cabarets) does not say bared breasts are forbidden in public, but only talks of indecent exposure (and breasts — which, for instance, sustain life through providing mother’s milk — certainly are not indecent); arguments that statutes permitting public breastfeeding confirm that the baring of breasts is not indecent; and arguments about vagueness in the law about how much of a breast is permitted to be exposed (e.g., whether an anti-nudity statute, read to its illogical conclusion, would prohibit the baring of even a half-inch of breast cleavage, which clearly would violate due process rights, equal protection rights, and free expression rights (in that revealing cleavage is a form of expression through fashion, at the very least; imagine, for instance, if women were prohibited from baring cleavage even at the beach)).
It is bad enough that men freely are permitted to bare their breasts but women are not. It is even worse, and grossly bizarre at the very least, that in Ohio recently, bare breasted women were arrested for disorderly conduct, and an appellate court affirmed the convictions. Baring breasts certainly is not a disorderly act, particularly in this instance where the purpose of the breast baring was for a "Solidarity Potluck" in a public park, "to raise awareness of sexism and double standards. Fliers announcing the event had been distributed on the campus of Bowling Green State University." The case is City of Bowling Green v. Lorien D. Bourne (Ohio Sixth Appellate Dist., Oct. 26, 2007).
Quoting from its opinion in State v. Poirier, the Ohio Sixth Appellate District in City of Bowling Green proclaimed:
"’We further note that the reason the female breast was explicitly enumerated as an ‘erogenous zone’ is the fact that female breasts are anatomically distinct and our society has viewed the public display of female breasts far more differently than male breasts. The female breast has traditionally been viewed as an erogenous zone. Because of the anatomical and societal differences, the government has an interest in preservation of the public decorum, decency and morals. See Buzzetti v. New York (C.A.2 1998), 140 F.3d 134; Hang On, Inc. v. Arlington (C.A.5 1995), 65 F.3d 1248; United States v. Biocic (C.A.4 1991), 928 F.2d 112." Id., ¶ 28." If we follow this foregoing court-quoted language to its illogical conclusion, we are back to the question of whether legislatures may even ban the baring of breast cleavage, even if it is at the beach. Moreover, even though clothed people can elicit a sexually excited response from others, that does not permit legislators to mandate the wearing of potato sacks. For the same reason, it is unconstitutional to bar the baring of breasts; now, I just need to convince judges of that.
This preoccupation with barring bared breasts seems to be an unfortunate remnant of America’s Puritan past. Such European Mediterranean nations as France and Italy are not burdened by Puritan pasts, and are places where women are free to bare their breasts on the beach just as much as men are permitted to do so. I have spent many total days at the beaches in France and Italy, starting at the age of fifteen, and witnessed no commotion caused by such bared breasts on the beach, where women freely make their own choice whether or not to bare their breasts. Jon Katz.
ADDENDUM I – Thanks to the First Amendment Profs blog for bringing City of Bowling Green to my attention.
ADDENDUM II – Thanks to Pete Guither from Drug War Rant, for commenting: "You’re familiar with the New York Court of Appeals decision? ; I replied "Thanks, Pete, particularly seeing that I thought I had heard about the Santorelli case you list, but apparently used the wrong Lexis search phrases, which left me empty-handed. The citation for the Santorelli case you list is People v. Santorelli, 80 N.Y.2d 875, 600 N.E.2d 232 (1992). A Shepard’s analysis of the case indicates that no courts outside New York have decided to follow Santorelli."