Ocean City did what it had to when its elected officials enacted an emergency ban on topless women. Whether the new ordinance will withstand a legal challenge will likely be determined in the future, but early word is it does not represent a constitutional infringement.
Facing an onslaught of questions from the vacationing public and hundreds of “topless beach” headlines in the media, the Ocean City Mayor and Council met in an emergency session last Saturday to introduce and approve an emergency ordinance that clearly states women are not allowed the same rights as men when it comes to going shirtless.
“There is no constitutional right for an individual to appear in public nude or in a state of nudity,” the ordinance reads. “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 or 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. … 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. A gender-based distinction challenged under the equal protection clause of the United States Constitution is gauged by an important government interest this is substantially accomplished by the challenged discriminatory means. Protecting the public sensibilities is an important governmental interest based on the 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.”
The ordinance continues, “It shall be unlawful for any person to be on the beach, Boardwalk, public parks, parking lots, streets, avenues, alleys or any other public place with the person’s specified anatomical areas nude or in a state of nudity. Any person who is found to be in any violation of this article shall be deemed to be guilty of a municipal infraction and be subject to a fine of up to $1,000.”
The city had to go the ordinance route because the Attorney General’s Office would not in a timely fashion issue an opinion after guidance was sought by Worcester County State’s Attorney Beau Oglesby in response to Maryland resident Chelsea Covington seeking guidance on what state law says about women going topless. At its most simplistic, her argument is if men can do it so can women. It’s a complicated gender equality issue, but the Town of Ocean City didn’t seem to have too much trouble differentiating between men and women. We can only ascertain by the long delay from the attorney general that it’s a challenging issue to differentiate in legal language.
The attorney general’s delay in responding to Oglesby’s request fanned the firestorm that embroiled Ocean City in recent weeks and resulted in the beach patrol issuing its own directive to essentially do nothing when confronted with complaints about a topless woman.
Rather than focusing on suing the president over energy efficiency standards and issuing statements on differences of opinion his office has with Secretary of Education Betsy DeVos on Borrower Defense Regulations, it would behoove Attorney General Brian Frosh to be more responsive to inquiries from within his own state. This matter deserved his attention soon after the request for his opinion was made. That didn’t come until late this week.
While he engaged in partisan national political issues, he brought a heap of negative national media attention on his own state, and specifically Ocean City, because he seemingly ignored a matter that needed addressing in a timely fashion. This week’s response would have been much more helpful and productive had it come earlier, even just a few months ago before bathing suit season.