November 2021 - Parks & Recreation - 31

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. "
On appeal, Plaintiffs contended
Ocean City, Maryland, had " not
established that the Ordinance is
substantially related to protecting
the public sensibilities of Ocean City
residents and vacationers. "
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
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November 2021 - Parks & Recreation

Table of Contents for the Digital Edition of November 2021 - Parks & Recreation
