A three-judge panel heard oral arguments on Wednesday in a case involving a local ordinance in Ocean City, Maryland, that forbids women from walking around topless on beaches.
The Fourth Circuit Court of Appeals will decide whether the April 2020 federal ruling — which found the ordinance is constitutional — should be overturned.
Civil rights attorney Devon Jacob represents five women who started the challenge to the ordinance soon after it was approved in 2017.
In April 2020, a federal judge upheld the constitutionality of the ordinance, as long as it didn’t lead to the “legal, social, and economic inferiority of women.”
During virtual oral arguments at the appellate hearing, Jacob accused city leaders of misusing the 14th Amendment’s Equal Protection Clause.
“In this case, Ocean City has used the clause to justify the existence of an ordinance that’s based on sexist ideology,” Jacob said.
Jacob argued that the fact that “something may make other people uncomfortable is not a reason” to move ahead with the ordinance that the city believed was needed to protect the public.
“The public has consistently been demanding more and more equality under the law,”, Jacob said. “[The phrase] ‘public moral sensibilities’ is an amorphous term that nobody has really been able to define.”
Ocean City attorney Bruce Bright defended city leaders, saying they received approximately 100 emails, along with an undefined number of phone calls, before they took action.
“Their job is to take the temperature of the public on a whole host of issues, this being no different than other issues, where they evaluate what the public view is and then legislate on that basis,” Bright said.
Judge A. Marvin Quattlebaum Jr. appeared to support the city’s reasons based on how the general public felt leading to the decision.
The panel’s chief judge, Roger L. Gregory, appeared to be leaning toward the side of the plaintiffs, noting that the country’s moral positions have evolved over time on other matters, which led to the striking down of bans on interracial couples and sexual activity between people of the same sex.
Gregory argued that the nation is “not in the same Neanderthal-type environment” that gave birth to such laws.
But Bright said the city is regulating “public nudity” and not sexual behavior.
There were no questions from the third judge on the panel, Barbara Milano Keenan.
Police can enforce Ocean City’s topless ordinance, which can lead to a $1,000 fine.
