OCEAN CITY — The U.S. Supreme Court this week denied a petition to hear a legal challenge of Ocean City’s ordinance prohibiting female toplessness in public.
In what appears to be the end of the line in the dispute over Ocean City’s ordinance prohibiting female toplessness where men are allowed to go shirtless, like the beach and Boardwalk, the U.S. Supreme Court on Tuesday rejected the plaintiffs’ petition for a writ of certiorari. The high court received the petition in December and it was distributed for a conference last Friday.
On Tuesday, the U.S. Supreme Court denied the petition in a terse, two-word docket entry. For a case that has been climbing the appeals ladder at different levels since it was first filed in U.S. District Court and ultimately denied, the U.S. Supreme Court’s order announced on Tuesday should mean the end.
Attorney Bruce Bright, who represented Ocean City through the various iterations of the case, on Tuesday confirmed the U.S. Supreme Court denied the petition. Bright said from the city’s perspective, the U.S. Supreme Court’s order denying the petition represents the end of litigation challenging the ordinance as the appellants have exhausted all appellate avenues.
“Ocean City is pleased with this latest and final ruling regarding the subject ordinance,” he said. “As the United States District Court and the Fourth Circuit Court of Appeals held, the City Council acted constitutionally when it passed the ordinance in 2017, and the council’s appropriate legislative decision is not subject to any further judicial challenge.”
The U.S. Court of Appeals for the Fourth Circuit last year denied a request for a reversal of the U.S. District Court decision in favor of the Town of Ocean City and its ordinance prohibiting female toplessness in the same areas where men are allowed to go shirtless, 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.
In December, Devon 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 petition for writ of certiorari on Dec. 1 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 read “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 read “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. 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 to 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 appeared to be a long shot from the beginning. 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. Ocean City’s topless case did appear to meet at least some of those standards.
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.
