Supreme Court Petitioned To Hear OC Topless Ordinance Challenge

Supreme Court Petitioned To Hear OC Topless Ordinance Challenge
Photo from July 6 by Chris Parypa

OCEAN CITY — Unsatisfied with the denial of an appeal in the U.S. Court of Appeal, attorneys for the plaintiffs challenging Ocean City’s ordinance prohibiting female toplessness this week petitioned the U.S. Supreme Court to take up the case.

The U.S. Court of Appeals for the Fourth Circuit earlier this year denied a request for a reversal of the U.S. District Court decision in April in favor of the Town of Ocean City and its ordinance prohibiting female toplessness in the same areas where men are allowed to go topless, such as the beach and the Boardwalk for example. The plaintiffs in the case, in yet another attempt to reverse the ordinance, filed a motion in the U.S. District Court of Appeals in September to reverse the lower court’s decision, but the high court denied a request for a new hearing and new oral arguments in the case.

This week, Devin Jacob, attorney for the named plaintiffs in the case, filed a petition in the U.S. Supreme Court to have the highest court in the land review the case and decide whether or not take it up. Jacob filed the writ of certiorari on Wednesday in the U.S. Supreme Court, and in simplest terms, it asks the same essential questions posed during proceedings in the lower courts. The first question reads “Is protecting the traditional moral sensibilities an important governmental interest on which the government may lawfully base a discriminatory gender-based classification as the Fourth and Seventh Circuits held, or not an important governmental interest as the 10th Circuit, and this court, held?”

The second question reads “Is the all-encompassing sex and gender classification of ‘female,’ provided in Ocean City’s ordinance, sufficiently tailored to achieve an important governmental interest?”

The U.S. District Court opined protecting a community’s moral sensibilities did serve an important governmental interest and the U.S. Court of Appeals upheld that decision. It now remains to be seen if the U.S. Supreme Court will grant the writ of certiorari and take up the case at the highest level. Parties who are not satisfied with the decision of a lower court must petition the U.S. Supreme Court to hear their case. The primary means to petition the court for review is to ask for a writ of certiorari, which is a request to have the U.S. Supreme Court order a lower court to send up the record of the case for review.

Asking the highest court in the country to take up Ocean City’s topless ordinance case could be a long shot. The Supreme Court typically accepts around 100 to 150 of the 7,000 cases it is asked to review each year. However, the Supreme Court is not under any obligation to hear cases and usually only does so if the case could have national significance, or it might harmonize conflicting decisions in the federal circuit courts or could have precedential value.

In January 2018, a civil suit was filed in U.S. District Court challenging an emergency ordinance passed by the Mayor and Council in June 2017 prohibiting females from going topless in the same areas as men are allowed to go shirtless, including the beach and Boardwalk, for example. The plaintiffs in the case, including local resident Chelsea Eline and four others, argued the emergency ordinance passed by the Mayor and Council in June 2017 violated their constitutional rights allowing them, and ostensibly any other woman who chose to do so, to go topless in certain areas of the resort where men are allowed to go shirtless.

In April 2020, a U.S. District Court judge dismissed the case, essentially opining Ocean City officials have a better understanding of the public sensibilities of their residents and visitors regarding the issue of allowing women to go topless in the same public areas where men are allowed to go shirtless, including the beach and Boardwalk for example. The U.S. District Court’s ruling in the case relied largely on the precedent-setting U.S. v. Biocic case heard by the Supreme Court nearly three decades ago.

The plaintiffs’ attorney argued the U.S. District Court relied on the decades-old U.S. v. Biocic when ruling in the case against the town’s topless ordinance, while there have been more recent cases that went the other way on the female topless issue. From the beginning, Ocean City has successfully contended the town’s ordinance is valid because it serves the important governmental function of the protecting the general public’s moral sensibilities.

During testimony at the District Court level, Ocean City officials testified the ordinance passed in 2017 reflected the general public’s moral sensibilities regarding female toplessness in public, based on a sampling of calls, emails and personal interactions with residents and visitors to the resort. The plaintiffs countered with testimony from a noted expert on the changing public sensibilities regarding female toplessness in public areas and asserted the sample size put forth by town officials during testimony did not represent the general public’s feelings on the issue.

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.