There is a certain amusement about the “free the nipple” movement, as women challenge the criminalization of baring their breasts in public. A victory was scored in Colorado. The New Hampshire Supreme Court has just handed the nipple a defeat. The law at issue expressly criminalized the public display of female breasts.
Callanan testified that Pierro was arrested for violating Laconia City Ordinance § 180-2 (the ordinance), which states, in relevant part, that “it shall be unlawful for any person to knowingly or intentionally, in a public place: . . . [a]ppear in a state of nudity.” “Nudity” is defined as “[t]he showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple.” Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-4 (1998).
Unequal protection? The court wasn’t biting.
Nor should the siren call of “equal rights” lead us to forget our constitutional role. In the absence of a suspect classification or a fundamental right, courts will not second guess legislative bodies as to the wisdom of a specific law. Winnisquam Reg. Sch. Dist. v. Levine, 152 N.H. 537, 539 (2005). That the ordinance may or may not “reflect sociological insight, or shifting social standards” is not determinative for our purposes. Buchanan, 584 P.2d at 921 (quotation omitted). “Our obligation” is to interpret and apply the law, “not to mandate our own moral code.” Planned Parenthood of Southeastern PA v. Casey, 505 U.S. 833, 850 (1992). “We are told that concepts of morality and propriety are changing”; if so, then “it can reasonably be expected that public demand will soon make it imperative that this portion of the ordinance be repealed.” Buchanan, 584 P.2d at 920-21. The people of Laconia may make such a decision, but this court will not make it for them.
The dissent, on the other hand, stated the obvious.
We strongly disagree that rational basis is the lens through which the defendants’ equal protection challenge should be analyzed. Laconia’s ordinance facially classifies on the basis of gender: if a woman and a man wear the exact same clothing on the beach, on Laconia’s main street, or in a backyard “visible to the public,” the woman is engaging in unlawful behavior
— but the man is not.
Key to this otherwise obvious assertion is the use of “rational basis” for the level of scrutiny to be applied. Sex is not a suspect classification under the United States Constitution, so strict scrutiny doesn’t apply, but it is under the New Hampshire Constitution. Yet, the majority applied the rational basis test anyway.
The majority acknowledges — as it must — that under the New Hampshire Constitution, gender-based classifications trigger strict scrutiny. Yet the majority declines to apply strict scrutiny in this case, reasoning that, because “men and women are not fungible with respect to the traditional understanding of what constitutes nudity,” the Laconia ordinance does not classify on the basis of gender. The conclusion that the ordinance does not classify on the basis of gender, and therefore can be analyzed by applying the rational basis test, does not find support in the plain language of the ordinance, the New Hampshire Constitution, or our precedent.
The dissent’s point is irrefutable, as the definition specifically distinguishes the crime as being female only. It doesn’t get more clear than that. Yet, the majority’s focus isn’t on the word, but public perception.
The majority asserts that such reasoning is “flawed” and “deceptively simple.” We fail to see the flaw or deception in our simplereasoning: when a law uses the word “female” to classify between those who can violate the ordinance — females — and those who cannot — males — it contains a gender-based classification. We freely acknowledge that the question of whether basic physiological differences between the sexes justify disparate treatment of men and women is a more nuanced and complicated question.
In other words, everybody knows women’s breasts are different than men’s. Like it or not, a woman walking down Main Street with her boobs out would potentially cause a “disturbance.” Of course, even if there was no law criminalizing the display of women’s breasts, the likelihood of this happening is slim. Then again, the issue raises on beaches and, more importantly, with regard to breastfeeding.
The majority relies on the obvious, that women’s breasts aren’t the same as men’s, that the reaction to the public display of women’s breasts isn’t the same as men’s. This may be true, but so what? Should it be? Just because guys get hot and bothered by breasts, does that mean women’s options should be criminalized?
But there’s another aspect to the argument that is unlikely to be given much consideration. If this is unequal protection, and it’s wrong to criminalize the public display of female breasts when the same doesn’t apply to males, would this also mean that the touching of women’s breasts should be treated no differently than the touching of men’s breasts? If breasts are not sexualized for the purpose of display, can they be sexualized for the purpose of sexual assault?
As arguments are proffered to undo puritanical sensibilities about the human body in one context, they necessarily end up applying to others in the absence of a conceptual ledge upon which the extension ends. It’s entirely fair to argue that the “hypersexualization” of the female breast is merely dirty thoughts in the minds of men, but then the rationale extends to woman’s accusations of sexual assault should a man touch her breasts. If a nipple is just a random patch of flesh on a woman, then what’s the big deal about touching it?
The question isn’t that it “feels” different, just as the majority acknowledges in concluding that displaying expressly female breasts isn’t unequal protection, since it’s not based on gender but on physiological reality. The dissent rejects this reliance on a “bygone” era.
The majority’s conclusion that a lesser standard applies turns the clock back to the era before the adoption of the Equal Rights Amendment — a bygone era when women were the victims of pervasive discrimination and this court rejected challenges to laws that treated men and women differently.
The problem is that if it’s a bygone era for one purpose, then why not for all?