Judge’s Memo Suggests Support For OC’s Topless Ban; Va. Precedent Cited In Court Filing

Judge’s Memo Suggests Support For OC’s Topless Ban; Va. Precedent Cited In Court Filing
Photo by Chris Parypa

OCEAN CITY — It remains to be seen if a federal judge will grant a preliminary injunction that could allow women to go topless in Ocean City, but the decision will likely be moot, as a hearing is set for later next month.

U.S. District Court Chief Judge James Bredar last week issued a memorandum and scheduling order in the federal civil suit filed by five plaintiffs earlier this year challenging the Town of Ocean City’s emergency ordinance prohibiting female toplessness in certain public areas including the beach and Boardwalk, for example. The larger suit was filed last January and in June, the plaintiffs, including local resident Chelsea Eline, filed a motion for a preliminary injunction that would allow them, and ostensibly any other women who chose to do so, to go topless in certain areas of the resort while the larger case runs its course.

Last Thursday, the federal judge issued a memorandum and scheduling order, which among other things, sets in motion a hearing on the preliminary injunction. The hearing on the preliminary injunction is now set for Sept. 21.

The accompanying memorandum also outlines some of the case history and precedents established on the female topless issue, and short of endorsing the town of Ocean City’s position, there are some indicators in the language in the document that suggest the judge could be leaning that way. Bredar’s memorandum lists six basic observations leading up to the preliminary injunction hearing.

For one, the memorandum cites a case from Virginia — United States v. Biocic — in which the courts ruled in favor of the defendant, in this case Accomack County.

In that case, a plaintiff claimed constitutional injury because of a county code that prohibited indecency in public areas of national parks and wildlife refuges. The particular law at issue in that case prohibited public nudity, defined in part as the showing of the female breast with less than a “fully opaque covering on any portion thereof below the top of the nipple,” which roughly follows the language in the town of Ocean City’s ordinance passed last summer. In his memorandum issued last week, Bredar pointed out how the courts ruled in that case as it applied to the current case involving Ocean City.

“The court found no constitutional violation by enforcement of the code section,” the judge’s memo reads. “With regard to equal protection, the court assumed, without deciding, that a distinction based upon the anatomical differences between the male and female is gender-based for equal protection analysis purposes,” and “that the distinction is one that is substantially related to an important government interest, hence does not deny equal protection.”

Essentially, the judge’s memo released last week appears to assert the U.S. v. Biocic case sets a precedent by which a decision could be made in the case against the town of Ocean City’s topless ordinance.

“The court identified the important government interest as protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones,” the memo reads. “These still include, whether justifiably or not in the eyes of all, the female, but not the male breast.”

Bredar’s memorandum brings that sentiment from Biocic back to the current case involving Ocean City.

“The Ocean City ordinance at issue sets forth various legislative findings including protecting the public sensibilities is an important government interest based on an indisputable difference between the sexes,” the judge’s memo reads. “Further, a prohibition against females baring their breasts in public, although not offensive to everyone, is still seen by society as unpalatable. This court will as of course it must, respect the precedent set in Biocic.”

The judge’s memo also points out the town’s emergency ordinance was passed by a Mayor and Council elected by the residents, and by extension, reflect the same general feelings on the topless issue as the residents who elected them.

“The contested ordinance was enacted by duly elected representatives of the public who reside in Ocean City,” the memo reads. “The court observes it is, at least, arguable that these representatives are authorized to speak, through legislation, in a manner that reflects the public’s sensibilities.”

The judge’s memorandum also points out the plaintiffs in the Ocean City case appear to rely on a court decision in Colorado that ultimately went against the jurisdiction the passed an ordinance prohibiting female toplessness in certain public areas. In that case- Free the Nipple v. Fort Collins, Colorado- the plaintiffs were successful in arguing that town’s ordinance violated equal protection under the constitution. In fact, the plaintiffs’ complaint in the current Ocean City case includes a long list of similar cases in which the plaintiffs succeeded on the merits.

However, Bredar’s memo issued last week appears to assert Free the Nipple v. Fort Collins was the exception and not the rule, reverting back to the U.S. v. Biocic precedent.

“The plaintiffs rely on one court decision from the district of Colorado that favors their position,” the memo reads. “The Colorado decision appears to be an outlier, given the various decisions in both federal and state courts that do not favor the plaintiffs.”

Again, it remains to be seen how the federal court will rule, first on the preliminary injunction and ultimately on the larger case, but the memo issued last week appears to show which way the judge is leaning heading into the September hearing. Of course, both the plaintiffs and the defendant, in this case the town of Ocean City, will have the opportunity to present evidence at that hearing.

“At the hearing, the parties are free to present evidence on the question of whether public sensibilities are accurately reflected or not in the Ocean City ordinance,” the memo reads.

From the beginning, Ocean City’s opposition to allowing female toplessness in the same areas as men are allowed to go without shirts is rooted in the “character and moral balance of a historically family-oriented tourist destination.

“They seek to disrupt the character and moral balance of a historically family-oriented tourist destination, visited and enjoyed by so many people whose expectations and sensibilities do not contemplate and likely will not tolerate nudity in such a densely-populated and wholesome tourist setting as Ocean City and its beaches,” the town’s motion to stop the preliminary injunction filed in late July reads.

However, in a motion in response to the town’s opposition to the preliminary injunction, the plaintiffs’ attorney attempts to spell out multiple ways in which Ocean City does not live up to its “family-friendly” claims including the rates of alcohol consumption, an apparent willingness to accept underage drinking and even some of the names of liquor-serving establishments among others.

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.