RICHMOND, Va. (CN) — “Nobody has been killed by a breast,” an attorney for a group of women argued before a Fourth Circuit panel Wednesday as he assailed Ocean City, Maryland’s ban on topless women.
Mechanicsburg, Pennsylvania-based lawyer Devon M. Jacob is representing a handful of women who approached the city in 2016 about its policy on toplessness in the coastal tourist destination. While no policy existed before local media picked up on the issue, before long Ocean City argued that media attention led to emails and phone calls supporting an effort to keep female breasts concealed.
Courts around the country have fallen on both sides of the issue. Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, had tough questions Wednesday for Ocean City about the plaintiffs' equal protection claims.
“This law came into effect about what they would do if they expressed their freedom on the beach?” the judge asked during the virtual hearing, referring to the ordinance that is less than five years old. “This moral sensibility was a recent vintage, right? It didn’t exist before someone asked the question?”
“The mayor and City Council didn’t see a reason to legislate the issue until now, when someone came along to ask if they could go topless,” replied attorney Bruce F. Bright with the Ocean City-based firm Ayres, Jenkins, Gordy & Almand, who represents the city in the dispute. “That necessitated the adoption of the ordinance. But we don’t take the position that the moral sensibilities relate to recent events, it's just the issue surfaced.”
This dispute stems from the birth of the city’s exposed breast ban in 2017, which spurred a lawsuit from Chelsea C. Eline and four other women in January 2018.
“It is now considered normal for males to appear bare-chested in public, and the act is associated with power, strength and freedom,” according to the complaint filed by Jacob and attorney Jason Downs with Baltimore firm Downs Collins.
Eline and her co-plaintiffs argued ordinances like Ocean City’s deny women the same right to go topless as men in violation of the 14th Amendment, causing “disparate social and legal treatment” for women and creating “feelings of body and gender shame in young girls.”
But Chief U.S. District Judge James K. Bredar in Baltimore disagreed last year, pointing to Fourth Circuit precedent that says protecting “moral sensibilities” is within a locality’s power.
The three-judge panel of the Fourth Circuit was nearly silent during Jacob’s oral arguments, in which he said there is a lack of quality evidence to meet the standard of a city legislating moral sensibilities. He said the ordinance was the result of Ocean City officials getting comment from only "a few hundred people at best."
“The facts weren’t properly documented and it wasn’t clear what positive comments were lost along the way,” Jacob said.
He said the mayor and City Council members admitted they had no special training regarding public sensibilities, and claimed one member used their Catholic upbringing as grounds for developing a moral code.
“The courts have guided us that we need to be careful that we’re not letting unlawful reasons creep into the law and the law is riddled with situations where that has occurred and the courts have reversed,” Jacob told the judges.
Bright, meanwhile, pointed to the lower court’s assessment that the elected nature of the officials empowered them to know the sensibilities of locals. Even if there were questions about their testimony, he said, court precedent protected a city’s ability to pass ordinances like the one at issue.