Until today, I had never even wondered whether indecent exposure laws that differentiate on the basis of sex might violate the equal protection clause. But now I am wondering.
United States v. Virginia, 518 U.S. 515 (1996), perhaps the crowning achievement of the late Justice Ginsburg’s career, tells me that gender-based classification triggers exacting scrutiny: the government would have to provide “exceedingly persuasive justification”. I suspect it would be argued that the female breasts have a different and innately more sexual function than the male breast, and therefore exposing them is less moral. And that upholding public morals is a legitimate government interest under exacting scrutiny.
I’m not so sure that upholding the public morals counts as a legitimate government interest any more. Upholding public morals didn’t work in Lawrence v. Texas (striking down anti-sodomy laws), although Justice Kennedy’s opinion noted that Lawrence “does not involve public conduct”. 539 U.S. at 578 (2003). But then you have something like Paris Adult Theatre I v. Slaton, where the court upholds an obscenity law in the name of “decency”, and putting emphasis on the fact that the law applied to movie theaters and did not intrude on the privacy of the home. 413 U.S. 49 (1973).
There was a case before the United States Supreme Court last year, but they denied certiorari. You can read the Supreme Court of New Jersey make its ruling, wherein it is said that a topless man is not naked while a topless woman is naked, therefore no gender-based classification was made at all. New Hampshire v. Lilley, 204 A.3d 198 (2019). I think I like this argument the least.
I thought this thread was going to be talking about visible genitalia laws. Breast exposure laws are a different thing and I think the equal protection clause could apply here.
I think if we took away the restriction entirely it would eventually become a non-issue in our culture; I don’t have a problem with doing that.
I’m not aware of gender differences in laws prohibiting indecent exposure of genitalia, but I think if such differences do exist, they would be on-topic.
Conclusion first: yes, I think that they do, but also, no they don’t, and also it depends.
Yes, they violate the Constitution, because I don’t think a legally sound justification can be articulated for them. No, they don’t violate the Constitution, because I tend to doubt a court is going to make that finding anytime soon, which means it isn’t true yet, because it really depends mostly on where the public and political winds are blowing at any given time, when you get right down to it.
Possibly a minor nitpick, but the “exceedingly persuasive” justification requires more than just a “legitimate” governmental interest. I think that’s important here. Gender distinctions have their own weird history in Equal Protection law, as you allude to, and the “exceedingly persuasive” test dates back a little farther than Virginia. The only important bit here is that because this level of review is in kind of an intermediate zone between the regular kind of scrutiny that all laws get, on the one hand, and the strict scrutiny that laws based on protected classes get, on the other, we know that we definitely need something more than simply a legitimate governmental interest. A legitimate governmental interest is what’s required for rational basis scrutiny, i.e. the non-heightened kind. For heightened/intermediate scrutiny, what’s needed is an “important” governmental interest, and governmental action that is “substantially” related to serving that interest.
In other words, even if we concede that upholding public morals is a legitimate interest, we still have a hill to climb. In order to discriminate on the basis of sex in upholding public morals, we have to show that our law is substantially related to upholding public morals and that it is important to do so, with the understanding that “substantially” and “important” are upgraded, harder to satisfy terms than “rationally” related and “legitimate” interests. I don’t think you can make a persuasive argument that distinguishing sex in topless laws satisfies intermediate scrutiny, even assuming you can argue successfully that it satisfies rational basis.
I think the truth, though, is that no matter what language we use, we’re always going to end up in subjective territory, which means as long as it’s not obviously out of step with the times, you can still probably get away with it. Sure, you can’t really, truly, objectively demonstrate that a woman’s breast is something meaningfully morally different from a man’s pectoral region, building from first principles. That distinction is cultural and social and religious and regional and subjective. But, as loath as attorneys and judges and interested observers are sometimes to admit it, all of this stuff is floaty and abstract, and dependent to a large degree on the zeitgeist. At some point in the future, it’s likely that many of the things (some of us) consider “upholding public morals” will be considered a joke at best, or evil at worst. At some point in the past, a lot of these things were beyond questioning. So, as with most Equal Protection matters, we’re really just asking what point on that timeline we’re on. All the level of scrutiny, and the operation of precedent, do is ratchet us into a more confined space so that we follow a subtler arc through time.
There’s a whole Free the Nipple movement that is trying to make it legal anywhere it’s legal for men. They probably have some persuasive arguments on their websites. In NY, where the high court there said that it was discrimination, you’ll see women going topless on beaches and in parks occasionally. There’s a group of women that was written up in Time Out New York, or something, that takes advantage of this – I think they read pulp fiction novels or something while out topless in parks, etc. I read the article a while ago.
My opinion is that it is illegal sex discrimination and if I were a Justice, that’s how I would rule. Since the constitution is what SCOTUS says it is, the answer to your question is, no, they don’t violate that clause. Yet.
Well, I could see it going either way. A state could have a referendum on the question of whether exposing female breasts in public is immoral whereas exposing male breasts is not immoral. The notion does not seem absurd on its face - I have personally grown up all my life under the unquestioned assumption that exposing the female breast in public is, at the very least, frowned upon. I feel bad for those breastfeeding mothers who are ashamed of breastfeeding. Maybe the sense of public morals are unfortunate, but it doesn’t shock my conscience to learn that a woman is ashamed of showing her breasts in public. That’s normal. If I were a judge, a referendum would go a long way towards convincing me that prohibiting the exposure of female breasts in public serves to uphold public morals.
This is probably off topic but something I’ve wondered about is child custody. Is it actually enshrined in law somewhere that the female is guaranteed custody (or custodial)
Guaranteed is used loosely here of course. What I mean is that the female will in every instance get custody unless the father proves her unfit or they split custody. (with her getting support)
I’d substitute “socially typical” for “normal” but otherwise I think you’re right. “Normal” tends to imply some extrinsically imposed rightness/wrongness. The position we’re both arguing towards is that female breasts are private parts because we mostly all agree, and have agreed for centuries, that they are. Whereas we mostly all agree, and have agreed for centuries, that male breasts aren’t.
It’s a socially constructed arbitrary distinction that has no deeper factual difference for a basis. Yes, biologically there is a profound difference: one kind can make milk & one can’t. But that’s not the reason we cover the milk-producing kind.
If what you state is true, then that’s a gender bias. There may be reasons for it (maybe there are studies that show that, on average, children brought up by single women do better than by single men, or something like that) or maybe it’s just historical bias. In any event, it seems very off-topic for this thread.
Back to the subject of the thread, my understanding is that there is no difference in the exposure laws in Germany, for example, and women routinely go topless in parks and on the beach.
I have a hard time reconciling my strong distaste for laws that require headscarves or face coverings in other countries with this disparate treatment for men and women here. It’s a difference in degree to be sure, but it doesn’t seem like a difference in kind. So, as I said above, I would rule against laws that require women to keep their shirts on where men don’t have to.
Wait, is that an accurate description of society’s perspective on breasts? My read of the situation is that anybody can decide that they don’t want their chest exposed regardless of gender, so there’s nothing about a male chest that makes it public property (so to speak). What’s actually happening is that currently there’s a greater tendency for women to choose to keep their breasts covered (for various reasons), and that there’s a tendency for authority figures to want to keep women’s breasts covered because either a) males are horny out of control beasts who can’t control themselves and breasts are covered to maintain public order, or b) women are property of some kind and only their man can decide who sees their breasts.
Which is to say, while I believe that everyone has the right to choose to keep their shirt on, I’m not seeing a lot of good societal basis for forcing anybody to keep their shirt on. (Except Chris Hemsworth, whose torso is clearly a riot-risk.)
I don’t know how you got to “public property”, but if you have been following the debate the “good societal basis” would be “upholding the public morals”. And that means some majority of people in the state (society) think it is appropriate (good) to enforce their moral judgement by law.
I’m following the debate, but it’s unclear to me what the basis for the “moral judgment” is - what the basis for “the public morals” are. It’s clear that “whatever most think is good” isn’t enough to cut it from a legal standpoint: if most people think it’s good to put all black people (or women) in chains then “public morality” will be disregarded, obviously.
The basis for public morals is the sheer number of people who agree on some set of moral judgements. Public morals do not have to survive any other rational or legal analysis to be certified as public morals. The reason “whatever most think is good” isn’t enough to imprison or enslave black people is because the rights implicated by imprisonment or enslavement outweigh society’s moral interests in imprisoning and enslaving black people. Or women, you could substitute women for black people and the previous sentence still holds true. As I cited above, it would appear that the right to privacy in one’s home outweighs the public’s interest in prohibiting sodomy.
But the right not to be held in slavery or servitude is not implicated when a law punishes women for exposing their breasts in public. Neither is the right to the privacy implicated by a law prohibiting certain public exposures. The right to go topless does exist, trivially, but I defy you to argue that it is so important as to hold the same protections as basic liberty or the right to privacy in one’s home.
Not that you need to, unless you want to prove the relevance of your appeal to these other rights.
There is no argument to be made that anti-slavery laws prevent forcing people (of either gender) to wear clothes. Obviously. My point was that “public morals”, whatever the hell they are, clearly have hard limits to how exceedingly persuasive they are as a legitimate governmental interest.
I’m also less certain about what the current public wishes are regarding female toplessness - and how that is officially determined. Is it just up to what the oldest judge present recalls about his youth?
For the life of me, I can’t think of any public interest in prohibiting sodomy. If you could just comment on that, I’ll leave it along and won’t hijack things any further.