CONCORD, N.H. (CN) - Slamming a razor-thin vote that upheld a New Hampshire beach town’s ban on topless women, the dissenting justices accused the majority Friday of upending the safeguards of equal protection.
"The majority’s conclusion that a lesser standard applies turns the clock back to the era before the adoption of the Equal Rights Amendment — a bygone era when women were the victims of pervasive discrimination and this court rejected challenges to laws that treated men and women differently,” Justice James Basset wrote, joined by Justice Gary Hicks.
Recalling a 1955 ruling where the court upheld a law that restricted the hours when women could play golf on municipal courses, Bassett noted that this decision called the regulation fair since women golf more slowly than men.
He said the majority used similarly tortured logic here to uphold a gender-based nudity ban in the city of Laconia.
"This is a significant change to New Hampshire’s equal protection guarantee that gives us great pause," Basset wrote.
Heidi Lilley, Kia Sinclair and Ginger Pierro brought the appeal here over convictions they incurred after refusing to wear tops while performing yoga and sunbathing at Weirs Beach on Memorial Day weekend 2016.
Laconia city ordinances bans sex and nudity in public, with exposure of the female nipple and areola specifically prohibited. The women claimed that, because both men and women have nipples, the law is discriminatory and violates their guarantee of equal protection and free speech.
But the New Hampshire Supreme Court upheld their convictions Friday after finding it constitutional to define nudity differently by sex characteristics.
"We conclude that the Laconia ordinance does not classify on the basis of gender,” Justice Anna Barbara Hantz Marconi wrote for the three-person majority. “The ordinance prohibits both men and women from being nude in a public place. The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity.”
Dan Hynes, a lawyer for the challengers with Liberty Legal Services in Manchester, said his team has not yet decided whether to appeal to the U.S. Supreme Court.
“Since the N.H. Constitution, which prohibits sex discrimination, was not enough to prevent this unequal, and unfair treatment, we are hopeful the New Hampshire Legislature steps up to correct this injustice by outlawing Laconia’s ordinance,” Hynes said in a statement.
Sinclair, an activist with her local chapter of the Free the Nipple movement, testified that she started the campaign in New Hampshire after giving birth to her son and realizing that "hypersexualized" nipples result in a stigma that contributes to low breastfeeding rates in the United States.
But the majority rejected any claim that nudity falls under the umbrella of freedom of speech of expression. "It does not target nudity meant to advance women’s rights or desexualize the female nipple," Hantz Marconi wrote of the ordinance. "Rather, it prohibits all nudity, regardless of whether the nudity is accompanied by expressive activity."
The majority noted that the public's concepts of morality may be changing, but declined to "second guess legislative bodies as to the wisdom of a specific law."
"The people of Laconia may make such a decision, but this court will not make it for them," wrote Hantz Marconi.
The court also agreed with the state that the ordinance's purpose - to uphold public health, safety, morals and order - gives the city authority to enact the law. Laconia had argued that the sight of the topless women could incite a "mental health issue" and possibly cause violence among beachgoers.
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