Sex

Ban on Toplessness for Women Doesn't Violate the Equal Protection Clause

The Eighth Circuit sticks with its earlier views on the subject, but earlier this year the Tenth Circuit departed from the majority view on the subject.

|The Volokh Conspiracy |

Today's case is Free the Nipple, Inc. v. City of Springfield (8th Cir.); here's the court's summary of the breakdown of the cases:

The majority of courts considering equal protection challenges have upheld
similar laws prohibiting women, but not men, from exposing their breasts. See e.g.,
Tagami v. City of Chicago, 875 F.3d 375, 377, 379–80 (7th Cir. 2017); United States
v. Biocic, 928 F.2d 112, 115–16 (4th Cir. 1991); Craft v. Hodel, 683 F. Supp. 289,
299–301 (D. Mass. 1988); Tolbert v. City of Memphis, 568 F. Supp. 1285, 1290
(W.D. Tenn. 1983); State v. Lilley, 2019 WL 493721, at *3–5 (N.H. Feb. 8, 2019).
But see Free the Nipple—Fort Collins v. City of Fort Collins, 916 F.3d 792, 802–05
(10th Cir. 2019) (equal protection challenge to ordinance prohibiting women from
exposing nipple likely to succeed on merits); People v. Santorelli, 80 N.Y.2d 875,
882–83 (1992) (Titone, J., concurring) (statute prohibiting women from exposing
nipple violated Equal Protection Clause).

Fort Collins didn't ask the Supreme Court to review the Tenth Circuit decision, but that may have been because the case involved only a preliminary injunction, a factor that tends to cut against Supreme Court review. If the injunction is made permanent (as I expect it will be), Fort Collins may again appeal and then ask the Supreme Court to hear the case.

You can the substantive arguments in favor of the majority view in the earlier Eighth Circuit precedent (Ways v. City of Lincoln)—or, better yet, State v. Lilley, the more thorough New Hampshire decision on this from earlier this year. And you can read the minority view in the Tenth Circuit case. Thanks to Howard Bashman (How Appealing) for the pointer.

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  1. Again, let me suggest that Congress *require* the Supreme Court to resolve circuit splits.

    The Court’s current power to decline to hear cases goes back to 1922, and is a grant of power from Congress. Congress can in part withdraw that grant by saying that the Supreme Court is *obliged* to hear appeals from a circuit court whose view clashes with the view of a (non-overruled) opinion in another circuit.

    The risk of course would be that the Supremes would impose a bad legal rule on the whole country, when before the bad rule applied only in a couple circuits.

    1. While Congress has the authority to decide the makeup of the Judicial Branch (inferior courts), I don’t see how they have the power to do anything other than strip jurisdiction from courts depending on how they define the make-up of said inferior courts. Where in the constitution would you find the power for Congress to tell SCOTUS what cases to take?

      1. “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

        If the provision about exceptions and regulations were stricken out of the Constitution, then the Supreme Court would *have* to hear all federal cases appealed to them.

        Congress used its power under the exceptions clause in 1891 and most significantly in 1925 (I said 1922 through error) to delegate to the Court the power of choosing most of its appeallate docked and rejecting cases it didn’t want – with exceptions.

        Chief Justice Taft and other judges lobbied for Congress to pass the 1925 law, as opposed to simply having the Supreme Court bypass Congress pick and choose the cases it preferred to hear.

        https://en.wikipedia.org/wiki/Judiciary_Act_of_1925

        1. Ah, thanks!

          1. Step 1: Congress passes the law Eddy wants.

            Step 2: The Supreme Court slaps it away for being unconstitutional.

            Step 3: This is better because…

      2. Congress has the power to set the Supreme Court’s jurisdiction. “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Art. III, Sect. 2. Cl. 2.

        Jurisdiction can be optional or mandatory. We are very used to the current system whereby the Supreme Court’s jurisdiction is determined solely by Writ of Certiorari, which is a fancy way of saying, they decide whether to review. (The only current exception is original jurisdiction, such as where one state sues another.)

        But this was not always so. Well into the 20th Century, the jurisdictional statutes provided for appeal as of right in certain cases to the Supreme Court. For example, where a question of federal law was involved, one had a right to appeal to SCOTUS from a decision of a state court of last resort. Or where a federal appeals court declared a state statute unconstitutional. You can read the history here: https://www.fjc.gov/history/courts/jurisdiction-appellate

        There is no reason Congress could not provide jurisdiction with an appeal as of right to SCOTUS in certain cases (assuming they qualify under Article III). Whether that is a good idea is another question. (I agree that Circuit splits are annoying, and in some cases, they last for decades. The notion that the same federal law means different things in different parts of the country grates against the rule of law, IMO.)

        1. “There is no reason Congress could not provide jurisdiction with an appeal as of right to SCOTUS in certain cases”

          Well, there’s one reason… the Constitution vests the Supreme Court with the judicial power, not Congress. If Congress wants to try and tell the SC how they can use the judicial power in a way the SC doesn’t want to, it won’t hold up.

          1. The Constitution vests Congress with the power to set SCOTUS’s appellate jurisdiction. An appeal to the Constitution will not save your argument. If SCOTUS gets in a direct fight with Congress, SCOTUS will lose, anyway. They’re outnumbered 435-9.

          2. You seem to have a problem with reading.

            “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Art. III, Sect. 2. Cl. 2.

            1. “You seem to have a problem with reading.”

              Or you do.

              Congress can control the jurisdiction of the inferior courts. They can’t control use of judicial power by the USSC.
              At least, not since Chief Justice Marshall took for the Court the power of judicial review.

              1. “At least, not since Chief Justice Marshall took for the Court the power of judicial review.”

                Are you talking about Marbury? How familiar are you with the holding re: jurisdiction?

                1. “Are you talking about Marbury?”

                  Is there another opinion in which Chief Justice Marshall too for the Court the power of judicial review?

                  “How familiar are you with the holding re: jurisdiction?”

                  About he same as any law school graduate, I’d guess. You imagine it’s relevant?

                  1. It’s relevant because the holding in Marbury was that the Supreme Court did not have jurisdiction.

                  2. Marbury did not take for the court the power of judicial review, as it was a pre-existing, inherent, power of the court; this was in fact implicitly recognized by multiple earlier court cases in the 1790’s.

    2. Again, let me suggest that Congress *require* the Supreme Court to resolve circuit splits.

      And let me offer you the testimony of Stephen Reinhardt – “they can’t catch ’em all” in reference to his avowed policy of ignoring SCOTUS precedents on the 9th, on the basis that SCOTUS didn’t have the capacity to reverse him all the time.

      Hence anything that forces SCOTUS to spend its time on other matters and not on reversing the late Judge Reinhardt’s friends, allows the late Judge Reinhardt’s friends to carry on making things up as they please in defiance of law and precedent.

      Hmm what shall we do today ? I think a neat little Circuit split with the 8th on a fine point of trademark law would be fun. That’ll keep SCOTUS busy for a while.

      Bad idea, Eddy.

      1. The Supreme Court spends way more time on each case than they used to. In any event, not every case requires an oral hearing. Let them resolve the “easy” circuit splits with a simple per curiam.

      2. A better idea would be for a courageous President to use the military to send judges like Reinhardt and Ginsburg on helicopter rides.

    3. “Again, let me suggest that Congress *require* the Supreme Court to resolve circuit splits.”

      You disapprove of separation of powers?

      1. I think his idea is not a good one, but Congress’s power over SCOTUS jurisdiction is a critical component of separation of powers. Because separation of powers is not explicitly mentioned in the Constitution (as it is in many states’ counterparts), that cross-branch oversight is exactly what creates separation of powers.

        1. “separation of powers is not explicitly mentioned in the Constitution”

          Yeah, I guess since they didn’t use that exact string of words, there’s no separation of powers in the Constitution.

      2. When liberals like Ruth Bader Ginsburg and Sonia Sotomayor are on the Supreme Court, then yes.

      3. James, you are simply wrong. See my post above. The jurisdiction of SCOTUS is determined by Congress, and that may (and historically did) include appeals as of right. There is no separation of powers issue.

        1. The Constitution rests the supreme judicial power in the Supreme Court. Congress has tried to strip them of jurisdiction (such as over Guantanamo Bay detainees)… unsuccessfully. Congress has authority over the lesser courts, which are a Congressional exercise of power.

          1. Art. III, Sec. 2.

          2. “Congress has tried to strip them of jurisdiction (such as over Guantanamo Bay detainees)…”

            Which case are you referring to?

  2. I think Bernstein posted this on twitter, and I’m paraphrasing, but any judge who says that men and women shouldn’t be treated any differently when exposing their chests should be required to take an evolutionary biology class.

    1. Adult male chests don’t resemble adult female chests…
      So what? The same can be said for the hips and the throat.
      Don’t blame your hangups on evolution.

      1. You, sir, are the perfect encapsulation of the mental loop-da-loops that people take to deny empirical reality, and thus, should be sitting in the first row of said class.

        1. But he didn’t deny empirical reality, he affirmed it. Men and women look different. In a lot of places. Not all of those places are illegal to show. What’s your argument for treating nipples differently? Does it have to do with lactation?

          1. Should grabbing a woman’s breast be considered sexual assault?

            1. I think so, sure. I’m not against making it sexual assault. Are you?

              1. No. But if it’s sexual assault, whereas grabbing men’s nipples is not, then you’re already treating them differently.

                1. I agree, that’s treating them differently for the purposes of sexual assault. What’s the argument for treating them differently for public exposure purposes? (If you think the reasons are the same, what are the reasons you think they should be treated differently in both instances?)

                  1. If touching them is sexual assault, then they’re sexual organs. Sexual organs of either sex don’t belong out in public. You can’t have it both ways.

                    1. “If touching them is sexual assault, then they’re sexual organs.”

                      Dimwit, you can be charged with sexual battery even if all you got was a handful of cotton and polyester. Are padded bras sexual organs, too?

                    2. A ha! I’ve just got you to admit that men’s butts are sexual organs. I knew you were gay.

                    3. NTOJ : A ha! I’ve just got you to admit that men’s butts are sexual organs. I knew you were gay.

                      I really don’t know how to break this to you without spoiling your lunch, but, um, er…..

                      …..some women are quite interested in men’s butts.

                    4. @Lee,

                      I can’t tell if he’d be madder if you called him a woman or a gay man. It’s a close question.

            2. “Should grabbing a woman’s breast be considered sexual assault?”

              Depends on why you did it.

            3. I think you will find no state defines grabbing a person’s breast as rape or sexual assault. These offenses always require someone’s genitals or anus be involved.

              Whether it constitutes a lower grade sexual offense such as sexual battery or no sexual offense at all varies from state to state. In California the female breast (but not the male breast) is defined as an “intimate region” the improper touching of which can support a charge of sexual battery. In Pennsylvania, on the other hand, sexual battery is limited to the genitals or anus and the charge would be plain old battery.

              1. “I think you will find no state defines grabbing a person’s breast as rape or sexual assault”

                That would be incorrect. Oregon convicted a woman for touching the back of a child’s head with her (clothed) breasts.

      2. “Adult male chests don’t resemble adult female chests…”
        Depends on the cup size of the female, and the state of obesity in the male, does it not? (shaving aside)
        Besides, equal means equal. If this law treats females (and, oh by the way, what is a female these days?) and males (and, oh by the way, what is a male these days?) differently, it is discriminatory.
        And come the ERA amendment, unconstitutional.

      3. Actually, a lot of overweight dudes have breasts that resemble female breasts.

        1. Then there’s the guy who got implants because he lost a bet.

      4. Smooth: “Adult male chests don’t resemble adult female chests…”

        I’m reminded of an incident I read of long ago, in which a 1930’s newspaper posted a photo of what looked like a small-breasted woman’s chest. The next day the whole pic was shown — Johnny Weissmuller, swimming champion and long-time Hollywood Tarzan.

        Actually, Weissmuller took chances posing in events without a top, early in his career, as even men were often forbidden to flash.

        Still, I think the 8th circuit got it right. If we are to mask sexually-significant body parts, the female chest has to go undercover.

    2. What does biology have to do with whether or not we should punish people who expose their chests?

      1. Let me ask you, then, to tell me why that of all the mammals in the animal kingdom, it is that only human females have breasts that are not temporary during nursing?

        1. (A) ethical arguments based on what happens in “nature” are always flawed.
          (B) no one knows. We can talk about theories, but because of (A) they’re not relevant anyway.

          1. (A) ethical arguments based on what happens in “nature” are always flawed

            Nonsense. Ethics does not inhabit a disembodied spiritual world – it inhabits the actual world of nature and physical things. “What happens in nature” is essential factual basis on which to ground the ethical implications of human action.

            To take an obvious example, if you choose to argue about whether there is, or isn’t, something ethically wrong with casual sexual relationships, you can’t do so coherently without some sort of appreciation of nature’s role in influencing the proceedings and the consequences, including why participants might want to engage in them when they do, and why participants might regret it afterwards. And why participant A might have different wants and regrets from participant B.

            Simply pontificating that it’s ethically right or that it’s wrong without regard to the natural landscape in which it takes place is handwaving, not ethical analysis.

            Nature doesn’t determineethical conclusions, but it’s an essential premise to an ethical argument.

            1. “Nature doesn’t determine ethical conclusions, but it’s an essential premise to an ethical argument.”

              No it isn’t. There are plenty of examples where what happens in nature is agreed (by all) to not be ethical. We should certainly factor in the way humans feel in thinking about what is right and wrong–and how we feel is a function in part on nature–but looking at chimpanzees to tell us how to behave is not a premise of any ethical argument.

            2. Seeing as your “essential premise” includes both “it’s in nature and it’s good” and “it’s in in nature and it’s bad”, it’s not essential, or actually part of the premise.

              1. Since both you and NTOJ have totally missed the point, I must assume I worded it poorly. I’ll try again.

                No, my “essential premise” includes neither “it’s in nature and it’s good” nor “it’s in in nature and it’s bad.”

                The structure of an ethical argument about human action is :

                Premise 1 : cutting someone’s head off will kill them
                Premise 2 : kiliing someone is usually ethically bad

                Conclusion : cutting someone’s head off is usually ethically bad

                Premise 1 forms a subset of the facts that nature provides you with. The conclusion does not follow from Premise 2 alone. Premise 1 is necessary to the conclusion.

                If, as a matter of fact, cutting someone’s head off didn’t kill them, but was an essential part of intellectual growth, because it was naturally followed by the sprouting of a new and better functioning head, the conclusion that cutting someone’s head off was usually ethically bad would much harder to justify.

                1. If you have to include a conditional in one of your premises, the conclusions you reach are probably invalid. (See what I did there?)

                2. Premise 1 can change nine ways to Sunday, and you’ll still get the “right” answer by asking “did it kill them?” You yourself demonstrated one way, a “Walt Disney’s frozen head” scenario is another.

                  But if you change premise 2, you quickly start getting “wrong” answers.

                  That is to say… even by your own example, the “facts that nature provides you with” aren’t necessary.

                  1. you’ll still get the “right” answer by asking “did it kill them?”

                    But whether it did kill them, or in prospect is likely to kill them, is a fact provided by nature.

                    Premise 1 can change nine ways to Sunday

                    Obviously nature provides innumerable facts, some of which are, and some of which are not, necessary premises for your ethical argument. I’m certainly not arguing that irrelevant facts of nature are necessary premises – why would they be ?

                    I’m arguing that there are always some relevant facts of nature that are necessary to your argument – you will always need some. In arguing about the ethics of human action there are no valid arguments that are disembodied, that can do without premises rooted in the facts of nature.

                    And I have to say that I’m absolutely astonished that you should pop
                    up (twice !) to dispute such a logically inescapable point. I can’t imagine why you would bother arguing against a point that is obvious to the point of banality.

        2. Let me ask you how you explain the cultures now and in the past which didn’t sexualize and prohibit exposure of female breasts.

          1. Can’t we just watch Mutiny on the Bounty and study the issue more first?

          2. “Let me ask you how you explain the cultures now and in the past which didn’t sexualize and prohibit exposure of female breasts”

            Including those cultures that currently exist in the USA presently, where nudity isn’t a crime.

            1. So different cultures that have different nudity standards than ours, some had men walk around naked too. Hell, everyone could walk around naked if they felt like it in JP’s world then, because some culture somewhere did.

              Lots of cultures had different standards about lots of different things, be it slavery (still practiced in Africa), lack of equality for women (go to the middle east), hygiene practices (taking a dump in the open is common in India and San Fran). Should we all consider anything some other culture does, or did, as equally valid?

              You’re so silly, and you don’t even see it. Our culture sets our standards for us, here, and now.

              1. Standards are subject to change.
                Wasn’t that long ago it was shocking to see a woman’s ankle.
                Just what is so horrible about the human body anyway?

                1. “What a piece of work is man!” – Hamlet

                  The human body is an amazing thing. Look, if we want to democratically decide that bare tits are fine, so be it, but courts shouldn’t decide to let have women bare their breasts “because equality” when equality has nothing to do with it when men’s and women’s chests are different. It silly and unscientific to say that human female breasts are not sexual organs (in addition to being feeding devices), and that fact should play some LARGE bearing in the decision-making process.

                  Secondly, judges foolishly getting rid of laws preventing partial female nudity “because equality” are the worst example of counter-majoritarianism and unscientific thinking.

                  1. “courts shouldn’t decide to let have women bare their breasts “because equality” when equality has nothing to do with it when men’s and women’s chests are different. ”

                    Men’s and women’s chests are different when they’re applying for jobs. Guess there’s no point pretending they’re equally capable of doing the job. You’re either in favor of treating people equally, or you’re not. You are not. Which is certainly your right. But when all you have is stupid arguments, you don’t get to complain when other people point out that all you have are stupid arguments.

                  2. So you admit it’s cultural then.

                    At which point, you are defending a law not because it is good, but because you think it’s the proper role of government to enforce culture.

                    1. No, it’s the proper role of government to reflect social mores, and those are shaped by culture.

                    2. Oh hey, I get to say the thing!

                      *ahem*

                      Fuck off, slaver.

              2. ” everyone could walk around naked if they felt like it in JP’s world then, because some culture somewhere did.”

                Not could. Can. Because there are parts of the USA that don’t criminalize nudity. Just because YOU have a hangup about YOUR body doesn’t mean that everybody does.

                “You’re so silly, and you don’t even see it. Our culture sets our standards for us, here, and now.”

                You’re so stupid, you didn’t even get the point, which is that “Our culture” isn’t what you think it is. “Our culture” currently includes entire states where nudity isn’t a crime. I’m not talking about some random third-world country at some isolated point in time, I’m talking about America, in the present. Idiot.

                1. Do other people laugh at you in person as well as online? That must get tiresome, and hard on the ego.

                  Again with the moral relativism. According to you, if it is allowed somewhere, or at sometime, then it should be allowed everywhere and anytime via your logic. JP as a giggling little boy once saw naked tits on a tribal woman in a faded yellow National Geographic at his library, so hey, it should be okay for courts to make it so a woman can walk shirtless down a middle America shopping mall.

                  I love the projection and straw-manning to boot…because someone doesn’t want women walking around topless, then they must have a hangup about their body.

                  1. He probably giggles when reading a Bible passage about an ass.

                  2. “Again with the moral relativism.”

                    This a chicken-shit response. You made a biological claim about women’s breasts. Quite reasonably, someone upstream mentioned the fact that not every culture developed the same taboos about exposed breasts, which speaks directly to your biological claim. This isn’t about moral relativism, it’s about how your biological theory holds up against contrary facts. Don’t change the subject.

                    1. Did you read what he wrote? JP is saying that since other cultures are fine with bared female breasts, we should be too, because equality or something. Note, he didn’t provide any real context either. Furthermore, he strawmans the debate, such that if you don’t want half-naked women wandering about, you have hang ups about *your* body.

                      And it’s not my claim, it’s evolutionary biology’s claim, about female human breasts.

                    2. mad,

                      “JP is saying that since other cultures are fine with bared female breasts, we should be too…”

                      No, he was saying that the challenge to your biological argument (other cultures don’t have the taboo) can be extended to the US, since there are US cultures that don’t ban nipples. You’re the one who made this about moral relativism, not him.

                    3. “Did you read what he wrote? JP is saying that since other cultures are fine with bared female breasts, we should be too, because equality or something.”

                      Dimwit, it’s fairly obvious that you didn’t read what he wrote. AND you’ve been corrected on this before, but insist on continuing your delusion.
                      JP said absolutely nothing about other cultures. He referred specifically to AMERICANS in present-day AMERICA.

                  3. “Do other people laugh at you in person as well as online? ”

                    Just the stupid ones.

                    ” According to you, if it is allowed somewhere, or at sometime, then it should be allowed everywhere and anytime via your logic.”

                    Uh, that’s according to YOUR logic. I didn’t say that. You made it up on your own.

                    “I love the projection and straw-manning to boot”

                    I don’t. Knock it off.

        3. Your question is based on a false premise.

          Female elephants have breasts just like female humans

          1. Your link to some dude’s travel blog doesn’t doesn’t say what you think it says. Try reading it again.

            LOL!

            In fact, the author specifically alludes to the “nubility hypothesis” about human females that I was hoping someone with even a smattering of evolutionary biology knowledge would get at.

            1. “Your link to some dude’s travel blog doesn’t doesn’t say what you think it says. Try reading it again.”

              You are clearly confused about what I think that article says. “Female elephant’s have breasts” is the only thing I postulated it as saying.

              You don’t like the travel blog, try this: Where is the mammary gland of a camel and an elephant located?

              On an elephant, it’s up between the forelegs, just like on a human. It’s even somewhat shaped like a human’s. The breast protrudes so that it’s easier for the baby elephant to get past its trunk and into its mouth.

              1. So a Quora answer by some guy who’s not an evolutionary biologist but who wrote a book on mammoths that says that an elephant sorta has a breast that he says it is “somewhat shaped like a human’s” that sorta protrudes to (his thinking goes) make it easier for a baby elephant to get a drink because its trunk gets in the way.

                That really doesn’t refute the particular proposition that only human female mammals have permanent breasts even when not nursing, nor the general theory from evolutionary biology that the first link mentions, called the “nubility hypothesis”.

                In fact, it sorta supports the nubility hypothesis, in that the only reason an elephant has a breast that sorta protrudes is because of the particular nature of the elephant’s trunk selecting for fitness for female elephants who had protruding breasts, whereas in other mammals without trunks, like dog, then they don’t have protruding breasts in females.

                Please try again.

                1. No, the proposition that only human female mammals have permanent breasts even when not nursing is false because female elephants also have permanent breasts.

                  The fact that elephants have permanent breasts for different evolutionary reasons than humans is not relevant to the truth or falseness of the above proposition.

                  1. Whether or not human female mammals have permanent breasts is as useful to resolving this dispute is as is noting that most animals have six legs and no breasts.

                    Try this starting point:
                    The person who decides how covered a breast should be should be the owner of said breasts.
                    If someone else wants a vote on the subject, let them first provide evidence that they should have a vote on the subject.

        4. “tell me why that of all the mammals in the animal kingdom, it is that only human females have breasts that are not temporary during nursing?”

          Who cares? 100% of animals are born/hatched naked.

          I mean, if nature is your guide…

          1. JP just did the equivalent of “in the long run we are all dead” and thinks that’s an argument.

            1. Mad Kalak just did the equivalent of “I have no counter-argument for that” and thinks that makes him the winner of the debate.

              1. JP…that’s not an argument. It’s on the opposite side of the planet from a rational argument.

                1. I accepted it as a concession that you didn’t have any RATIONAL arguments.

                  Still do.

        5. kalak, pretty sure that female humans are RARE & not UNIQUE in having breasts that do not shrink and conform to the body (they are still there, not gone) in times outside of nursing. but so what?? our society is rare (but hardly unique) in its extreme approach to exposure of various bits of epidermis. there is no fundamental reason we need to be, our approach has changed over the years (oooh baby, check out that ankle!!), and it should continue to change. heck, we’re all born naked — what is the big deal (and please don’t argue aesthetics – clothing just doesn’t matter in many cases)??

        6. Your confidence in the why is not supported by current science, but in any event would have nothing to do with a law banning nipples. If men are biologically drawn to breasts, the nipples aren’t the thing driving men wild (biologically). It is not the case that only human females have nipples.

        7. That is not true, mad. All mammals have breasts even when not nursing. They are not enlarged but they still exist.

          The fact that human female breasts are enlarged even when not nursing is legally irrelevant, not only for the reasons above, but also because it remains illegal for a female with non-enlarged breasts to expose her chest. There are plenty of cases of pre-pubescent girls (or more precisely, their parents) being arrested for indecent exposure. Also plenty of cases of women who, in that part of the body, are indistinguishable from men.

          In other words, the current state of the law does not recognize the distinction that you are attempting to make.

          1. It is legally relevant, because it is culturally relevant, and it is culturally relevant because it is biologically relevant, and it is biologically relevant because it is a product of natural and sexual selection that women have breasts even when not nursing.

            What else do you think was the impetus for the laws against the bearing of female breasts? While they are feeding devices, they are also sex organs, despite everyone’s attempts to label them as no different than men’s pectorals. Sorry.

            1. “While they are feeding devices, they are also sex organs…”

              Even under your theory, they’re “sex organs” in the same way enlarged muscles are on men. And you still have not confronted the fact that not every human culture adopts the “culturally relevant” ban, suggesting it is not some inherent trait. There are also biologic, non-sexual explanations for human females’ unique permanent enlarged breasts.

              1. Nope, not under my theory, under evolutionary biology as per the latest research and thinking on the matter. Sorry!

                Something can be a sexual, without it being a sex organ. A woman’s red lips (why they wear lipstick) but not be a sex organ. Furthermore, a body feature can be a sign of fertility (like the hip waist ratio or luscious hair) without being a sex organ.

                I would love to hear your theory about why human females have permanent breasts, please go on.

                1. The scientific community is not in total agreement as to the biological reason for the difference between humans and other primates re: breasts.

                  BUT IT’S NOT MY THEORY! If you want explanations besides the one you’re resting on, go google Discovery Mag March 6, 2019, breasts human primates, etc.

                2. “Nope, not under my theory, under evolutionary biology as per the latest research and thinking on the matter. Sorry!”

                  Based on your demonstrated inability to summarize my argument, I find that taking your word for what a qualified scientist says would be highly unwise.

            2. “they are also sex organs”

              So much for arguing from biology.

            3. You know, I really hate not being able to unflag a comment after accidentally hitting that when I intended to reply. Apologies for the flag.

              That’s the end of what I can say nicely about your comment, though. If your line of reasoning were solid (that it is deterministic from biology), all human cultures would have legal prohibitions against the baring of female breasts. The fact that not all human cultures have that prohibition is sufficient demonstration that your reasoning is invalid.

              As a matter of biology, you are simply wrong. Breasts are not sex organs (organs necessary to the process of sexual reproduction) though they are sexually-differentiated organs. But so are pectorals, hips, adams apples and facial hair.

              Why do I think we (now) have laws against the baring of female breasts? For the same reasons we used to have laws against the baring of female ankles and that many muslim jurisdictions have laws against the baring of female hair. They are cultural anachronisms, not innate characteristics.

              1. “Why do I think we (now) have laws against the baring of female breasts?”

                Depending on which state you happen to be standing in, there may well not be any laws against the baring of female breasts. In at least a couple more, such laws may exist, but not be enforced.

          2. “All mammals have breasts even when not nursing.”

            Two problems with this claim:

            1) “All mammals” includes the male mammals.

            2) It also includes the sexually immature ones.

        8. I read somewhere that the breasts look like a butt and this tricked human males into having sex with human females from the front instead of from the back. Having sex from the facing each other is what separates us from the beasts. Apparently at some point in the twentieth century, human males saw through the subterfuge and realized that human females also have actual butts. That is why civilization is in tatters.

          I read elsewhere that humans are also pretty close to unique in having butts because they’re a product of our bipedal stance. If you look at other primates, well, you’ll see there’s not much to look at.

          How the pre-breast hominids knew to be turned on by butts I haven’t worked out.

          Curiously, you can show a butt on TV but you can’t show a breast.

          I’ve also read that the breast helps distinguish males from females. This is handy because there’s no other way to tell, right? I guess other primates are always messing this up. “Oh, sorry, didn’t realize you were a dude.” “Not your fault.”

          1. “Curiously, you can show a butt on TV but you can’t show a breast.”

            Not (completely) true. Way back in my childhood I was startled to learn that the local PBS station aired “Monty Python” in uncensored form. Many (but not all) of the parts for women in the show were played by the Pythons in drag. The ones that don’t include a couple of topless scenes.

      2. 12ip: You’re right, in that it is culture (ours) not biology. This case draws on biology in that banning the breast otherwise risks violating concepts of equal treatment.

  3. Ha ha, I took the high road and discussed circuit courts and certiorari while others were talking about boobs.

    1. Well, we are what we discuss. 🙂

      1. Eddy is a circuit split?

        1. He’s a circuit court, Eugene, not a circuit split.

          Circuit split doesn’t even make sense.

    2. “Ha ha, I took the high road and discussed circuit courts and certiorari while others were talking about boobs.”

      Circuit cleavage?

      1. “Udderly indefensible” – hat tip* Stewart Baker

        * and even that came out wth a second t before I corrected it

  4. The problem is that at some point, society got confused and began conflating the laudable conceit that people should be metaphysically equal in worth with the holy dogma that everybody was literally equal in every aspect* (except when convenient for leftists). So we’re left with trying to square incompatible ideology and reality.

    Personally if I was king of the world I’d have two categories for this situation. Attractive young women and everybody else.

    1. Personally if I was king of the world I’d have two categories for this situation. Attractive young women and everybody else.

      1. I’d be willing to go further. There are so many chests that absolutely need to be kept from public view, as a matter of aesthetics, or even just hanging on to your cookies, that I’d be willing to eschew the public display of even the ones belonging to attractive young women – these can be left for private inspection. Besides which, a well filled sweater is quite erotic anyway.

      2. I couldn’t help notice that your “king of the world” division is exactly how the King of the Jungle sees things (even though he doesn’t live in the jungle.) When a new male lion takes over a pride by defeating the existing male, the new guy kills all the baby lions, male and female. The adult lionesses, who are all available for mating, are spared. The only way to survive as a kid is to be female and Lolita-ish – just about old enough for the new male to mentally flip you from the category of {that other guy’s rugrat} into the category of {well lookee here}.

      1. ” There are so many chests that absolutely need to be kept from public view, as a matter of aesthetics, or even just hanging on to your cookies, that I’d be willing to eschew the public display of even the ones belonging to attractive young women”

        Better play it safe, and have yourself blinded to spare you the horror of seeing breasts you find unaesthetic.

        You’ve fallen into the basic statist fallacy… You say “I don’t want this, therefore I get to put limits on what other people do.”

        1. You say “I don’t want this, therefore I get to put limits on what other people do.”

          Yeah, that kinda comes with the territory of being “king of the world.”

          Doh !

          1. If you were king of the world, you wouldn’t have to misquote people to win arguments.

      2. That is precisely the thinking that justifies prohibitions of this kind.
        It’s also what gives rise to the Islamic practice of requiring total coverage of women.
        Congratulations. You’re in the same club with the Ayatollahs.

    2. Nobody thinks everyone is literally equal. It’s apparent to the rest of us that you’re below average in many ways.

  5. Setting aside issues of jurisdiction, what would the courts say of the rules regarding competitive beach volleyball attire?

    Hypothetically, what would the courts say to a rule (promulgated by a state athletics association) that required that all track athletes wear a tank top, shorts, socks, and sneakers, and nothing else (i.e. forbidding women to wear sports bras)? It would be entirely gender-neutral and entirely ridiculous.

    1. That’s true. Rules that require clothing are ridiculous.

    2. There’s no shortage of stupid uniform rules for athletes that exist for stupid reasons. One of them being that a clothing/shoe manufacturer has a contract with the organization that requires the athletes to only wear that brand.

      Perhaps there’s a reason the Olympic games were originally all-nude.

      1. Perhaps there’s a reason the Olympic games were originally all-nude.

        Yes, there is. Sexism. It was to keep women from competing.

        1. The Greeks were so so on female nudity and exercise. Take this exchange from the Republic:
          —————–
          Then women must be taught music and gymnastic and also the art of war, which they must practice like the men?

          That is the inference, I suppose.
          I should rather expect, I said, that several of our proposals, if they are carried out, being unusual, may appear ridiculous.

          No doubt of it.
          Yes, and the most ridiculous thing of all will be the sight of women naked in the palaestra, exercising with the men, especially when they are no longer young; they certainly will not be a vision of beauty, any more than the enthusiastic old men who in spite of wrinkles and ugliness continue to frequent the gym….

        2. Or this exchange:
          Not long ago, as we shall remind them, the Hellenes
          were of the opinion, which is still generally received among the barbarians,
          that the sight of a naked man was ridiculous and improper; and when
          first the Cretans and then the Lacedaemonians introduced the custom,
          the wits of that day might equally have ridiculed the innovation.

          No doubt.
          But when experience showed that to let all things be uncovered was
          far better than to cover them up……….

  6. So, let me make sure I understand this, there has actually been enough litigation to generate a circuit split in the federal courts on this issue? And, Trump is criticized for not showing due respect to the legal profession?

    1. Don’t blame the “legal profession”. They can only highlight stupid laws. It’s the legislators who pass ’em.

      1. Amen

      2. It’s not a stupid law. It’s a stupid application of the equal protection clause.

        1. Treating people equally is a stupid application of equal protection?

        2. It’s a law attempting to enforce culture. Yes, it’s stupid.

        3. MKE — and who is responsible for the equal protection clause?

  7. When and why did milk glands get re-classified as sexual organs?

    1. When the Victorians covered everything up and created the first heaving bosom.

    2. Well, Nerdy, even today they’re not sexualized in all cultures, but they have been in some places for at least 20,000 years, based on the voluptuous stone age “Venus” figures that turn up.

      So it’s your multi-great grandfathers’ fault.

  8. May I suggest men file a lawsuit against establishments that have more female bathrooms than male? It is be based on what we would now all agree is the patently unconstitutional idea that biology makes women have more frequent and less controllable urges than men. We now recognize biology has no influence at all on gender behavior.

    The fact that scientists supported such an idea can only be evidence of the persistence of bigotry in science and the need to re-educate the old fogies who cling to hateful views.

    1. As with most equality things, it all depends on the framing. More bathrooms for females looks like unequal treatment if you frame the question as “number of toilets per male v. number of toilets per female.”

      But if you frame it as “number of minutes waiting for a slot in the bathroon per male v. number of minutes waiting for a slot in the bathroom per female” you’ll get a different answer.

      Theoretically, you might even use this to try to justify the most obvious anti-male discrimination on the restroom front – the fact that 95% of the time the female restroom is closer to the dining area, shopfloor, whatever, than the male one. if you’re trying to equalise the waiting time, you might as well make the guys walk a bit further.

      And while I’m on this subject, urinals are a very efficient use of toilet space. Consequently in any joint large enough to merit a reasonable chunk of toilet space, the fashion for turning everything into unisex cubicles is NUTS. it increases waiting time both for men, who could whizz and away at a urinal, and for women who have to wait in the same line for a cubicle as men who could be whizzing and awaying at a urinal.

      1. It doesn’t take that much longer to whizz and away in a cubicle. Really, just the extra half-second it takes you to put the seat up.

        1. Except that there are going to be fewer of them.

        2. No it doesn’t. But in the space required for three cubicles, you could have at least six guys whizzing into urinals (or even more into one big urinally wall.). So the whizz rate per unit of bathroom area is at least double if you let the guys whizz in urinals.

    2. “It is be based on what we would now all agree is the patently unconstitutional idea that biology makes women have more frequent and less controllable urges than men. We now recognize biology has no influence at all on gender behavior.”

      Ah, did you know that men have TWO, count ’em, TWO urinary sphincters? While women have only ONE? (It has to do with making sure a certain fluid goes in the right direction…)

      As a result, there’s this point of fullness where a man merely has to think about not peeing, while a woman goes straight to eyeballs and slacks turning yellow.

      Hm, I wonder if this means my prostate surgery qualifies as partial gender reassignment for victimhood points?

      1. “biology has no influence at all on gender behavior…”

        Yeah. Right. This is patently untrue in just about everything in life. Take mate selection for example. Women have a whole different set of criteria for a potential mate then men do.

        1. Interesting that you feel qualified to speak so confidently for other people, who clearly do not share a unified view.

    3. ” It is be based on what we would now all agree is the patently unconstitutional idea that biology makes women have more frequent and less controllable urges than men.”

      No, it isn’t. It’s based on the readily observable fact that the ladies’ is more subject to being pushed over capacity than is the gents’. There’s a couple of reasons for this. One is that urinals take less space than toilets, so you can provide more facilities in the same space in the gents’ Another is that the nature of men’s clothing makes using a urinal faster than using a toilet.

      Restroom facilities are designed by engineers, not scientists, so railing against scientists because you had to wait is kind of dumb.

      1. Maybe restroom facilities ought to be designed by engineers, but in my experience they are, at best, designed by architects.

        1. Architects are engineers, so your complaint is… what, exactly?

          1. Not in my state, they aren’t. (I mean, sometimes, but they’re separate licenses.) Where do you live?

            1. Are you confusing “Professional Engineers”, which takes licensing, and “engineers”, which does not?

              1. I’m not participating in this conversation anymore.

  9. Apparently gender equality requires tit for tat.

  10. Hard to see how appearing in our natural state should be any kind of a crime.

    1. Iowa, the natural state.

      /rejected slogan

  11. Interestingly, it is the dissent and not the majority that raises an issue I think cuts against it. Many state laws criminalize the non-consensual touching of the female breast (as “sexual battery” or the like) but not the male breast. How could those laws hold up under the notion that treating male and female breasts differently is just some old-fashioned, patriarchal attitude?

    1. I might add, for example, would anyone seriously argue that topless photos of men and women must be treated equally in the context of, say, a “revenge porn” statute?

      1. In most states, topless photos of men and women are treated equally in the context of “revenge porn” statutes, in the sense that there isn’t one.

        1. 44 states and D.C. have “revenge porn” laws. And while I have not done a survey of all of them, there is a Findlaw page that links to all of them, and checking the statutes of the first five states listed alphabetically, all five include the female breast either explicitly or by reference to another statute. So it is, contra your statement, likely a part of most, if not all, the statutes. California, for example, prohibits the distribution of an image of an “intimate body part” defined as “any portion of the genitals, the anus and IN THE CASE OF A FEMALE, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.” Cal. Pen. Code sec. 647(j)(4)(A) & (C).

          Here is the page with a link to the various state statutes:https://criminal.findlaw.com/criminal-charges/revenge-porn-laws-by-state.html

          1. Seattle has a regular “naked bike ride”. There’s regularly photos from the event that get published online. Do you really think any of the photographed folks could sue under the state’s “revenge porn” laws, even with their dicks clearly hanging out?

            Face it, whether nudity is sexual or not is contextual (see the old “I know it when I see it” claim). A photo of a topless woman who is obviously intentionally topless in a public place isn’t going to pass the smell test of a revenge porn law any more then a photo of a dude at a naked bike ride is going to.

            1. Do you not understand what “revenge porn” is? Obviously, I did not reproduce the entire statute. Someone who voluntarily appears nude in public has effectively consented to let the public at large see him/her nude. Someone who has consented to a private photo has not given consent for that image to be shared with the world.

              Women, in general, would be much more embarrassed from the release of a topless photo than a man. That’s why the statutes would punish the release of a topless photo of a woman, but not one of a man.

              1. ” Someone who voluntarily appears nude in public has effectively consented to let the public at large see him/her nude.”

                The relative handful of folks who happen to be present, not everyone who has an Internet connection, in perpetuity.

                The two cases you think are so different aren’t, really. Try this alternative phrasing:

                ” Someone who voluntarily appears nude in public has effectively consented to let the public at large see him/her nude”

                Someone who agreed to be photographed has absolutely agreed to be photographed. A person who appeared in public in a state of undress may or may not have agreed to be photographed.

    2. To be accurate:
      It’s also battery to grab a male breast.
      What you’re pointing out is an enhancement, like battery on a cop >> battery on a regular person.

      1. “It’s also battery to grab a male breast.”

        True, but it’s not sexual battery, and the offender will not be on a sex offender registry for life. More than just a subtle distinction, wouldn’t you say?

        1. “True, but it’s not sexual battery, and the offender will not be on a sex offender registry for life.”

          A single incidence of unpermitted handling of a breast won’t get you on the registry for life. That’s in the tier that gets you ten years.

          1. TEN years?
            What sort of hypertrophic police state do you people live in?
            In my state, a breast grope is, at worst, a felony with no jail time; for most people it would get misdemeanor treatment either before or after probation.

            1. “What sort of hypertrophic police state do you people live in?”

              The federal government made the states adopt sex offender registries. The states didn’t all choose to enact the same statutory scheme, however. Some chose to enact only what the feds required (registration requires registration), and some chose to go far beyond what the feds require (limits on where registrants can live, jobs they can have, etc.)

              “In my state, a breast grope is, at worst, a felony with no jail time;”
              It’s a class A misdemeanor in most. But you can land on the sex offender registry for peeing in a corner behind a bar.

    3. Because they all require that the touching be somehow sexual in nature. Nowhere is it the law that simply touching a boob is sexual battery; that could be plain old battery or nothing.

      States could and should very easily expand those definition so that any touching of the body that is sexual in nature supports the charge. Under the right circumstances, unconsented rubbing of feet or sucking of fingers or tweaking of nipples probably ought to be prosecuted as a sexual offense regardless of male/female issues.

  12. Once women secure the right to walk topless down the street the next “right” they will want is being able to tell people not to take pictures of them topless in public and to sue if those pictures end up online. Think I am joking or this isn’t going to happen? Just wait.

    1. Your slippery slope fails to account for the fact that the issue you’re afraid of has already been resolved.

    2. I don’t think it is going to happen. I doubt that women who walk around topless are particularly concerned about strangers seeing their tits.

      We already know your theory is stupid, because there are a lot of fantastically rich and powerful people who are photographed in public who don’t want to be photographed in public, and their efforts at preventing themselves from being photographed in public have been without effect.

    3. Think I am joking or this isn’t going to happen?

      Nah, you’re serious. Just misinformed. This is already legal in many places in America and whataya know, the women who choose to walk around topless are also the women who aren’t concerned about being photographed by strangers while they’re topless.

  13. in reviewing Lilley, basically what I’m getting out of it is that it is not common for women to go topless in our society, and therefore an ordinance making illegal for them to do so is perfectly acceptable. since it has been illegal for them to do so, women going topless in our society is rare because they don’t want to go to jail. this is a ridiculous, circular argument (and don’t get me started on their specious, misogynist claim that the case/ordinance is not gender based)!!

    1. Sounds like the “common use” test for the 2nd Amendment and the “evolving standards of decency” test for the 8th.

    2. That’s the actual argument about automatic firearms.

      Macdonald v Chicago said that guns in common use cannot be banned.

      Machine guns are not in common use, therefore they can be banned.

      Machine guns are not in common use because they were previously banned for decades, but that aspect is simply ignored: they were in common use before the ban.

  14. […] Volokh explains the 8th Circuit’s verdict in Free the Nipple, Inc. v. City of […]

  15. […] Volokh explains the 8th Circuit’s verdict in Free the Nipple, Inc. v. City of […]

  16. […] Volokh explains the 8th Circuit’s verdict in Free the Nipple, Inc. v. City of […]

  17. If tops cannot be constitutionally required, can bottoms be far behind?

    1. I don’t agree with the constitutional argument, but bottoms remain safe. I’m not aware of any jurisdiction that permits men but not women (or women but not men) from public pantslessness.

      1. Gee whiz, I thought that bottoms are behind was not debatable.

      2. “I don’t agree with the constitutional argument, but bottoms remain safe. I’m not aware of any jurisdiction that permits men but not women (or women but not men) from public pantslessness.”

        Oregon permits pantslessness throughout the state, for almost everybody. (It does still criminalize “indecent” pantlessness.)

  18. Maybe we should allow women to expose their nipples if they meet certain requirements, such as age, weight, and breast size, so as not to see offensive breasts? Actually from a lot of guys I have seen shirtless, that would be a good idea for men too. There, now you have equal protection! LOL (I am being factious)

    1. Meh. Maybe we should leave it to the owner of the nipples to decide how much of them is publicly visible, and when. (Not facetious.)

      Then, if an undesireable nipple should happen into view, a person who objects to said nipple could, you know, look at something else, or close their eyes.

  19. Hi from New York, where it has been established law since 1992 that the nudity rules for men and women are the same, and women can go without shirts in the same places that men can. There is some topless sunbathing in parks and on beaches, and in NYC a certain number of topless street performers (where I can assure you exposed nipples are far from the most exotic things you will see.)
    The world has not come to an end. Get over it.

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