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In the case of Eline v. Town of Ocean City, 2021 U.S. App. LEXIS 23246 (4th Cir. 5/5/2021), the Town of Ocean City, Maryland, had passed an ordinance prohibiting public nudity. The ordinance was in response to inquiries about topless sunbathing on the town’s beaches. While the ordinance restricted both men and women from showing certain body parts in public, only women were prohibited from publicly showing bare breasts. Plaintiffs were five women who sought “to be bare-chested in public in the same locations where it is lawful for men to be bare-chested.”
Family Resort Town
Ocean City is a beach town “located on a barrier island 8.4 miles long in Worcester County, Maryland, and was originally founded as a fishing village in 1875.” Ocean City currently has more than 7,000 residents, with a median age around 54 years old. Despite its small population, Ocean City is a frequent tourist location, with more than 300,000 vacationers per weekend during the busy summer months and 200,000 vacationers per weekend during the off-season months. “Ocean City has long been identified and considered by its visitors and residents, and has identified itself, as a family-friendly resort catering to visitors of all ages and providing a family-friendly environment.”
On August 17, 2016, Plaintiff Chelsea Eline contacted the Ocean City Police Department and the Worcester County State’s Attorney “regarding her stated intention to go ‘topless’ in Ocean City, including on its beaches.” Eline took the position that she had a constitutionally protected right to be topless (i.e., expose her breasts) in public, including in Ocean City and on its beaches.
As a result of her inquiry, the possibility of Ocean City becoming a topless beach became a matter of great public attention and concern. Ocean City Mayor Richard W. Meehan and members of the Ocean City Council received many emails and phone calls from Ocean City residents and vacationers expressing great concern about the possibility that Ocean City beaches would become topless beaches. Due to the large number of inquiries government officials received on the issue, Ocean City posted an announcement on its website titled “Ocean City Is Not a Topless Beach & Will Not Become A Topless Beach.”
Public Nudity Ordinance
The Ocean City Council then held a special meeting to consider the first reading of a proposed ordinance to regulate public nudity — Ordinance 2017-10 (“the Ordinance”). The Ordinance defines nudity as follows:
(a) Nude, or a State of Nudity means the showing of the human male or female genitals, pubic area, vulva, anus, or anal cleft with less than a full opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.
In addition, the Ordinance recognized that “protecting the public sensibilities is an important governmental interest” and contained a legislative finding that “a prohibition against females baring their breasts in public, although not offensive to everyone, is still seen by society as unpalatable.”
At the meeting, the Ordinance was read and the floor was opened to the public. Only one member in the audience — a 70-year-old Ocean City resident — spoke. She expressed support for the Ordinance. City Council then passed the Ordinance on the first reading unanimously. Following that vote, a Council member moved to immediately enact the Ordinance on an emergency basis. That motion passed unanimously as well. After that, Mayor Meehan approved the passage of the Ordinance as an emergency ordinance.
Plaintiffs sued Mayor Meehan and several other city officials in the U.S. District Court for the District of Maryland, alleging a 42 U.S.C. § 1983 claim for violation of their equal protection rights. Plaintiffs sought a declaration that the Ordinance violated the Equal Protection Clause and a preliminary and permanent injunction precluding Ocean City from enforcing the Ordinance.
Expert Witness Testimony
After Plaintiffs moved for a preliminary injunction, the parties presented evidence at a hearing on the motion. Plaintiffs presented their proposed expert witness, Dr. Debby Herbenick, who had produced two expert reports. In addition, Dr. Herbenick’s supplemental expert report indicated that she had “systematically reviewed more than [1,000] historical and contemporary photographs from Ocean City, Maryland.”
Dr. Herbenick’s initial report acknowledged that the Ordinance contains language indicating that it was enacted for the protection of the public sensibilities. Despite that admission, Dr. Herbenick offered the following four opinions that were in conflict with the Ocean City Council’s legislative findings:
(1) The ordinance fails to acknowledge important similarities between female and male breasts.
(2) The ordinance overstates differences between female and male breasts.
(3) The notion that females baring their breasts in public “is still seen by society as unpalatable,” is not supported by peer-reviewed scientific research.
(4) Peer-reviewed scientific research supports the conclusion that by not treating females and males equally in regard to their ability to appear bare-chested may contribute to harmful secondary effects, such as discouraging breastfeeding and promoting a culture that over-sexualizes girls and women; thus harming and not protecting the public.
Evolving Sensibilities
Based upon her review, Dr. Herbenick opined “public sensibilities have evolved rapidly over the decades regarding what males and females wear on or near the Ocean City beaches”:
From the 1930s to 1960s and 1970s, there were considerable changes that resulted in men going from covering their chests to baring their chests, and from women wearing dresses and even stockings to wearing bikinis.
Additionally, Plaintiffs’ expert witness report stated that “Ocean City has seen the establishment of two Hooters locations, with quite a few photos of ‘Hooters girls’ posing with young boys.” Moreover, she indicated “recent decades have seen women in Ocean City wearing thong or G-string bikini bottoms, and even ‘pasties’ that cover just the nipples during ‘Best Body’ competitions.”
At the preliminary injunction hearing, Dr. Herbenick’s testimony was largely consistent with her reports. At the hearing, Ocean City presented Mayor Richard Meehan, Council Member Mary P. Knight and Melanie Pursel, president and CEO of the Ocean City Chamber of Commerce. These witnesses all testified about communications they had received in support of the Ordinance.
The district court denied Plaintiffs’ motion for summary judgment. In so doing, the court noted that “the majority of cases that have upheld similar public nudity laws” have “recognized that protecting the portion of society that disfavored public display of female breasts furthers an important governmental interest.” In this particular instance, the district court cited the testimony of “many Ocean City residents and vacationers,” which “voiced strong opposition to allowing public nudity in Ocean City.” On the other hand, the district court noted “Plaintiffs did not testify, choosing instead to rely upon an expert witness, Dr. Herbenick.”
The district court did not find Dr. Herbenick’s opinion persuasive. According to the court, Dr. Herbenick’s opinion was “not strictly relevant to the issue at hand” because “instead of her testifying as to what Ocean City’s citizens’ public sensibilities are, she testified as to what she thought they should be.” As a result, the district court concluded that “Plaintiffs did not muster any evidence to show that Ocean City’s citizens shared their view that women should be able to be bare-chested in public places as men are.”
Moreover, the federal district court determined that “assessment of public sensibilities does not require precise scientific sampling.” On the contrary, the court found “witnesses were able to articulate the public sensibilities of the Ocean City community.” In particular, the court relied on the information that Ocean City’s witnesses provided about the support they received from the public about the Ordinance. According to the court, Ocean City’s elected officials are “accredited as accurate barometers of public sensibilities” who “can, and do, speak for the public.” As a result, the federal district court concluded “Ocean City has shown its Ordinance is substantially related to an important government objective, the protection of public sensibilities.”
The federal district court, therefore, granted Ocean City’s motion for summary judgment. Plaintiffs appealed. On appeal, Plaintiffs reiterated their claim that “the Ordinance is unconstitutional under the Equal Protection Clause of the United States Constitution.”
Gender Classification Equal Protection
As cited by the federal appeals court: “The Equal Protection Clause of the United States Constitution provides that: ‘No State shall deny to any person within its jurisdiction the equal protection of the laws.’” U.S. Const. amend. XIV, § 1. Further, the court noted “the burden of justification is demanding and it rests entirely on the State” when “a law containing a gender-based classification is challenged under the Equal Protection Clause.” In reviewing the challenged law, the court would examine “differential treatment” to determine “whether the proffered justification is exceedingly persuasive”:
The defender of legislation that differentiates on the basis of gender must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.
On the other hand, the federal district court acknowledged: “the Supreme Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” As a result, the court found a challenged gender classification must meet a “heightened standard” of judicial review to ensure the governmental justification does “not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Moreover, the governmental justification for a gender-based classification must be “genuine, not hypothesized or invented post hoc in response to litigation.”
That being said, the federal appeals court recognized a heightened standard of judicial review of gender-based legislation “does not make sex a proscribed classification” because the Supreme Court precedent has established “the two sexes are not fungible; a community made up exclusively of one sex is different from a community composed of both”:
Inherent differences between men and women, which we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Laws may, for that reason, acknowledge the physical differences between men and women so long as they are not used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.
According to the federal appeals court, the Supreme Court had not yet “squarely addressed” whether laws, like the challenged Ordinance, that “prohibit public nudity by referencing anatomical differences between women and men” would qualify as “gender-based classifications that are subject to heightened scrutiny for purposes of the Equal Protection Clause.” In the absence of applicable Supreme Court precedent, the federal appeals court indicated it would uphold “the gender-based classification in the Ordinance” if the Ordinance “serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives”:
The important government interest is the widely recognized one of 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. These still include (whether justifiably or not in the eyes of all) the female, but not the male, breast.
Moreover, the court noted “the overwhelming majority of courts that have addressed laws banning public female toplessness have upheld their constitutionality” based upon “important governmental interests in promoting public decency and proscribing public nudity to protect morals, public order, health, and safety.”
Changing Public Attitudes
While acknowledging that “other courts that have expressed the same view,” Plaintiffs argued this precedent “represents a viewpoint that is outdated at best and misguided at worst.” In particular, Plaintiffs contended “protecting the public sensibilities is no longer an important government interest” because “this nation has evolved significantly” with regard to “the changing public sentiment towards females.” While acknowledging “public attitudes about gender and sexuality are constantly changing and evolving,” the federal appeals court was not persuaded by Plaintiffs’ argument that judicial recognition of this important government interest was “no longer important.” On the contrary, the court found “protecting public sensibilities serves an important basis for government action.”
As cited by Plaintiffs, “perceived public moral sensibilities have been used to justify government action that we now recognize to be unconstitutional if not outright immoral.” The federal appeals court acknowledged: “The judicial legacy of justifying laws on the basis of the perceived moral sensibilities of the public is far from spotless.” The court further recognized: “Some government action that we now rightly view as unconstitutional, if not immoral, has been justified on that basis.”
Consistent with the precedent set by “the majority of courts that have addressed the issue,” the federal appeals court in this particular instance found “no error in the district court’s determination that the provision in the Ordinance prohibiting the public showing of female breasts furthers the important governmental interest of protecting the public sensibilities.”
Public Sensibilities Evidence
On appeal, Plaintiffs contended Ocean City had “not established that the Ordinance is substantially related to protecting the public sensibilities of Ocean City residents and vacationers.” The federal appeals court rejected this argument.
As noted by the court, Ocean City had “presented testimonial and documentary evidence that demonstrated Ocean City residents and vacationers overwhelmingly supported the Ordinance”:
The vast majority of the emails in the record favor the Ordinance. And Meehan, Knight and Pursel all testified that they had received communications from residents and vacationers supporting it as well.
In response, Plaintiffs claimed Ocean City’s evidence was “not illustrative of the views of Ocean City because its population is transient due to tourism.” The court, however, found many of the emails sent to Mayor Meehan reflected the view of residents as well as “tourists who indicated that they would not vacation in Ocean City if public female toplessness was allowed.”
Plaintiffs also argued “the testimony of Ocean City’s leaders who expressed their opinions on the public sensibilities concerning female toplessness lacks sufficient scientific basis.” In particular, Plaintiffs claimed “Ocean City officials did not save all emails related to the Ordinance” and did not record the “names of the people who complained by telephone or in person.” The federal appeals court rejected this claim.
Citing precedent, the court found there was no legal requirement that “a municipality empirically prove the public sensibilities of a community.” Accordingly, in this particular instance, the federal appeals court concluded there was sufficient evidence to “show that the Ordinance is substantially related to this important governmental interest.” Specifically, the federal appeals court determined: “The district court rightly held that Ocean City’s leaders could offer testimony as fact witnesses giving lay opinions about the moral sensibilities of the Ocean City community based on their personal community interactions, including those interactions as elected officials.”
Irrelevant Expert Testimony
On appeal, Plaintiffs further contended “the district court erred by excluding Dr. Herbenick’s expert reports and testimony.” According to Plaintiffs, “this evidence reveals that public female toplessness does not violate the public sensibilities of Ocean City residents and vacationers.”
While acknowledging “Dr. Herbenick has experience and expertise in human sexuality, including American societal attitudes concerning female breasts,” the federal appeals court found her testimony and opinions were not relevant on “the discrete issue in this case — the public sensibilities of Ocean City residents and vacationers on the issue of public female toplessness.”
As described by the court, Dr. Herbenick had found “a substantial transformation in male and female swimwear in Ocean City over the last century.” The relevant issue, however, identified by the court was “not whether society’s ideas around appropriate beachwear have evolved over time, as they undeniably have.” Rather, as identified by the court, the “discrete issue” for judicial consideration was “the current public sensibilities on the issue of public female toplessness.” On this specific question, the court found Dr. Herbenick had “offered no evidence that the public sensibilities of Ocean City residents or vacationers have evolved on that discrete issue.”
As cited by the court: “The Federal Rules of Evidence assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Moreover, the federal appeals court acknowledged it was required to afford deference to the federal district court’s ruling on Dr. Herbenick’s testimony.
In light of the required deferential standard of review, the federal appeals court determined that the district court had not erred in “concluding that Dr. Herbenick’s testimony would not be helpful to understand the evidence or to determine a fact in issue.”
Conclusion
While noting “the burden of proving the Ordinance’s constitutionality rests with Ocean City,” the federal appeals court found Ocean City “offered the only admissible evidence on the public sensibilities of Ocean City residents and vacationers.” Accordingly, the federal appeals court held “Ocean City has met its burden of showing the Ordinance is substantially related to an important government interest”:
Ocean City has met its burden of providing an exceedingly persuasive justification for treating the public showing of bare breasts by females and males differently in the Ordinance. We further hold that the prohibition on public female toplessness is substantially related to the important governmental interest in protecting the public sensibilities of Ocean City.
The federal appeals court, therefore, affirmed the district court’s grant of Ocean City’s motion for summary judgment on Plaintiffs’ equal protection claim.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Law review articles archive (1982 to present)