PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-1530
CHELSEA C. ELINE; MEGAN A. BRYANT; ROSE R. MACGREGOR; CHRISTINE E. COLEMAN; ANGELA A. URBAN,
Plaintiffs - Appellants,
v.
TOWN OF OCEAN CITY, MARYLAND,
Defendant - Appellee,
and
RICHARD W. MEEHAN; JOSEPH J. THEOBALD; ROSS C. BUZZURO,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, Chief District Judge. (1:18-cv-00145-JKB)
Argued: May 5, 2021 Decided: August 4, 2021
Before GREGORY, Chief Judge, KEENAN, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Keenan joined. Chief Judge Gregory wrote a separate opinion concurring in the judgment. Devon M. Jacob, JACOB LITIGATION, INC., Mechanicsburg, Pennsylvania, for Appellants. Bruce Frederick Bright, AYRES, JENKINS, GORDY & ALMAND, P.A., Ocean City, Maryland, for Appellee.
2 QUATTLEBAUM, Circuit Judge:
In response to inquiries about topless sunbathing on its beaches, the Town of Ocean
City, Maryland, passed an ordinance prohibiting public nudity. While the ordinance
restricts both men and women from showing certain body parts in public, it prohibits only
women from publicly showing their bare breasts. Plaintiffs, five women who seek “to be
bare-chested in public in the same locations where it is lawful for men to be bare-chested,”
sued Ocean City to enjoin the ordinance, claiming it unconstitutionally discriminated
against women. See J.A. 91a–95a. The gist of Plaintiffs’ argument was that the gender
classification in the ordinance could not withstand the heightened scrutiny required by the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
The district court disagreed and granted Ocean City’s Motion for Summary
Judgment. We agree with the district court that Ocean City has established that prohibiting
females from publicly showing their bare breasts is substantially related to an important
government interest—protecting public sensibilities—and satisfies the heightened scrutiny
of the Equal Protection Clause. For those reasons, and as explained below, we affirm.
I.
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.” J.A. 358a.
Ocean City currently has over 7,000 residents, with a median age around 54 years old.
Despite its small population, Ocean City is a frequent tourist location, with over 300,000
vacationers per weekend during the busy summer months and 200,000 vacationers per
3 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.” J.A. 609a.
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.” J.A. 607a. “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.” J.A. 608a. As a result of her inquiry,
the possibility of Ocean City becoming a topless beach “became a matter of great public
attention and concern . . . .” J.A. 608a. 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.” J.A. 608a (internal quotation marks omitted). 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.” J.A. 612a.
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.
4 J.A. 46a. The Ordinance also recognizes that “[p]rotecting the public sensibilities is an
important governmental interest” and contains 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.” J.A. 45a.
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 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 1 sued Mayor Meehan and several other city officials 2 in the United States
District Court for the District of Maryland, alleging a 42 U.S.C. § 1983 claim for violation
of their equal protection rights. 3 Plaintiffs sought a declaration that the Ordinance violates
1 None of the Plaintiffs are residents of Ocean City nor even the county in which it resides. Three are Maryland residents who live in other counties, and two reside out of state. All claim they frequent Ocean City beaches and state they desire to do so topless. 2 The other officials were Emergency Services Director Joseph J. Theobald and Chief of Police Ross C. Buzzuro. Plaintiffs subsequently dismissed Meehan, Theobald and Buzzuro. Therefore, the case proceeded only against Ocean City. 3 Plaintiffs also alleged a Monell claim against Ocean City for violation of Plaintiffs’ equal protection rights. See Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 690 (1978) (holding that municipalities “can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers”). Additionally, Plaintiffs alleged a claim for violation of Article 46 of the Declaration of Rights to the
5 the Equal Protection Clause and a preliminary and permanent injunction precluding Ocean
City from enforcing the Ordinance.
Later, after Plaintiffs moved for a preliminary injunction, the parties presented
evidence at a hearing on the motion. None of the Plaintiffs testified. Instead, they presented
their proposed expert witness, Dr. Debby Herbenick, who had produced two expert reports.
Dr. Herbenick’s initial report acknowledges that the Ordinance contains language
indicating that it was enacted for the protection of the public sensibilities. Despite that, she
offered four opinions that 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 barechested 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.
J.A. 1260a. Dr. Herbenick’s supplemental expert report indicated that she “systematically
reviewed more than one thousand historical and contemporary photographs from Ocean
City, Maryland.” J.A. 1268a. Based upon this review, Dr. Herbenick opined “that 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
Maryland Constitution. See Md. Const. Dec. of Rights, Art. 46 (“Equality of rights under the law shall not be abridged or denied because of sex.”).
6 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.” J.A.
1268a. Additionally, the supplemental expert 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.” J.A. 1268. 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.” J.A. 1268a. At the hearing, Dr. Herbenick
testified largely consistent with her reports.
Ocean City presented Mayor Richard Meehan, Council Member Mary P. Knight,
and Melanie Pursel—the 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. Noting the majority of cases that have
upheld similar public nudity laws, the court found that it was bound by our decision in
United States v. Biocic, 928 F.2d 112, 115–116 (4th Cir. 1991), which recognized that
protecting the portion of society that disfavored public display of female breasts furthers
an important governmental interest. 4 The district court described the testimony from Ocean
City’s witnesses—Mayor Meehan, Council Member Knight and Ms. Pursel—which
indicated that many Ocean City residents and vacationers had voiced strong opposition to
4 Ocean City and the district court referred to this governmental interest as protection of “public sensibilities.” See J.A. 45a, 432a–33a. For ease of reference, we adopt this shorthand description.
7 allowing public nudity in Ocean City. It then noted that “Plaintiffs did not testify, choosing
instead to rely upon an expert witness, [Dr.] Herbenick . . . .” J.A. 431a. The district court
did not find Dr. Herbenick’s opinion persuasive and, more importantly, concluded that it
was “not strictly relevant to the issue at hand” because “[i]nstead of her testifying as to
what Ocean City’s citizens’ public sensibilities are, she testified as to what she thought
they should be.” J.A. 432a. Accordingly, 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.” J.A. 432a. It determined
that “assessment of public sensibilities does not require precise scientific sampling,” and
found that Ocean City’s witnesses were able to articulate the public sensibilities of the
Ocean City community because—as elected officials—they are “accredited as accurate
barometers of public sensibilities” and “can, and do, speak for the public.” J.A. 432a. The
court also relied on the information that Ocean City’s witnesses provided about the support
they received from the public about the ordinance. It concluded, therefore, that “Ocean
City has shown its ordinance is substantially related to an important government objective,
the protection of public sensibilities.” J.A. 433a.
After a year of litigation, the parties each moved for summary judgment. 5 Through
discovery, the record had been developed somewhat since the Order denying Plaintiffs’
5 Additionally, Plaintiffs moved to exclude Mayor Meehan and Council Member Knight as expert witnesses, arguing that neither were qualified to offer expert opinions, that their opinions would not be reliable and that Ocean City did not comply with the disclosure requirements of Federal Rule of Civil Procedure 26(a)(2). In response, Ocean City clarified that it was not offering these witnesses as experts but, instead, was offering
8 Motion for Preliminary Injunction. For example, the parties deposed several witnesses and
produced emails from concerned residents and vacationers, which were largely in support
of the Ordinance. Nevertheless, the arguments offered at summary judgment were not
materially different from those offered in connection with the Motion for Preliminary
Injunction.
The district court granted summary judgment for Ocean City on all of Plaintiffs’
claims. Initially, in evaluating Ocean City’s adoption of the Ordinance, it “‘assume[d],
without deciding’ that a classification based on ‘anatomical differences between male and
female’ qualifies as a gender-based distinction in the context of the equal protection
analysis.” J.A. 1306a (quoting Biocic, 928 F.2d at 115). The district court then found that
Dr. Herbenick’s opinions were irrelevant and declined to consider them in evaluating
Plaintiffs’ constitutional challenges to the Ordinance. In its Order, the district court found
that “Dr. Herbenick’s opinion that the ordinance overstates differences between females
and males in terms of breasts/chests, focusing heavily on sexualization does not help the
Court to understand whether Ocean City’s public sensibilities support a ban on public
female toplessness.” J.A. 1303a (internal quotation marks omitted). Nor, the district court
concluded, did Dr. Herbenick’s opinion that female toplessness is not generally seen as
them as fact witnesses who may offer lay opinions. The district court agreed that Ocean City was not seeking to offer expert testimony, concluding that Mayor Meehan and Council Member Knight were entitled to “testify as to what they have observed and experienced in the course of their personal community interactions,” as such testimony was “relevant to determining the purpose of the Ordinance . . . .” J.A. 1300a–02a. Accordingly, the district court denied Plaintiffs’ Motion to Exclude as moot.
9 unpalatable in contemporary American society help resolve whether female toplessness is
considered unpalatable in Ocean City.
Then, relying on this Court’s decision in Biocic, as well as most courts from around
the country that have considered this issue, the district court held that the purpose of the
restriction—protecting the public sensibilities—was an important governmental interest.
Finally, echoing its analysis of the evidence presented by Ocean City in response to
Plaintiffs’ Motion for Preliminary Injunction, the court held that the record established that
the restriction was substantially related to that interest. 6 Accordingly, the district court
granted Ocean City’s Motion for Summary Judgment and denied Plaintiffs’ Motion for
Summary Judgment.
Plaintiffs filed a timely Notice of Appeal from the district court’s Order. They ask
us to reverse the district court’s grant of summary judgment in favor of Ocean City and
find that the Ordinance is unconstitutional under the Equal Protection Clause of the United
States Constitution. In assessing this argument, we review that decision de novo, “applying
the same legal standards as the district court and viewing all facts and reasonable inferences
in the light most favorable to the nonmoving party.” Ballengee v. CBS Broad., Inc., 968
F.3d 344, 349 (4th Cir. 2020).
6 Because the district court found no constitutional violation, it also granted summary judgment for Ocean City on Plaintiffs’ Monell claim. Additionally, the district court—applying Maryland law—found “substantial justification” for the Ordinance and granted summary judgment for Ocean City on Plaintiffs’ claim under Article 46 of the Maryland Declaration of Rights. See Giffin v. Crane, 716 A.2d 1029, 1037 (Md. 1998) (noting that Article 46 “flatly prohibits genderbased classifications, absent substantial justification”).
10 II.
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. When a law containing a gender-based classification is
challenged under the Equal Protection Clause, “[t]he burden of justification is demanding
and it rests entirely on the State.” United States v. Virginia, 518 U.S. 515, 533 (1996).
When examining the “differential treatment[,] . . . the reviewing court must determine
whether the proffered justification is exceedingly persuasive.” Id. at 532–33 (internal
quotation marks omitted).
“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.’” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1690 (2017) (quoting Virginia,
518 U.S. at 533). Moreover, the classification must meet that heightened standard by
today’s assessment, for 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.” Obergefell v. Hodges, 576 U.S. 644, 673
(2015). “The justification must [also] be genuine, not hypothesized or invented post hoc in
response to litigation.” Virginia, 518 U.S. at 533. “And it must not rely on overbroad
generalizations about the different talents, capacities, or preferences of males and females.”
Id.
11 However, “[t]he heightened review standard [the Supreme Court’s] precedent
establishe[d] does not make sex a proscribed classification.” Id. That is so because “the
two sexes are not fungible; a community made up exclusively of one [sex] is different from
a community composed of both.” Ballard v. United States, 329 U.S. 187, 193 (1946).
“Inherent differences between men and women, 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.” Virginia, 518 U.S. at 533 (internal quotation
marks omitted). 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.” Id. at 534 (internal citation omitted).
Whether laws that prohibit public nudity by referencing anatomical differences
between women and men—as the Ordinance does—qualify as gender-based classifications
that are subject to heightened scrutiny for purposes of the Equal Protection Clause has not
been squarely addressed by this Court or the Supreme Court. However, we decline to delve
into that issue because, even assuming that the classification in the Ordinance is subject to
heightened scrutiny, the gender-based classification in the Ordinance “serves important
governmental objectives and . . . the discriminatory means employed are substantially
related to the achievement of those objectives.” Virginia, 518 U.S. at 533 (internal
First, our Biocic decision teaches that the classification in the Ordinance serves an
important government objective. There, an adult female “removed the top of her two-piece
bathing suit, fully exposing her breasts” while walking on the beach in a Natural Wildlife
12 Refuge. Biocic, 928 F.2d at 113. An officer of the federal Fish and Wildlife Service charged
her with violating a federal regulation, which provided that “[a]ny act of indecency or
disorderly conduct as defined by State or local laws is prohibited on any national wildlife
refuge.” Id. (alteration in original) (citing 50 C.F.R. § 27.83). The applicable local
ordinance made it “unlawful for any person to knowingly, voluntarily, and intentionally
appear . . . in a place open to the public or open to public view, in a state of nudity” and
defined “state of nudity” to include the showing of female breasts. Id. (alteration in
original). She appealed her conviction under this regulation, claiming that it violated the
Equal Protection Clause. Id. at 114. We disagreed, concluding that:
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.
Id. at 115–16. Biocic is clear. And we are not permitted to discard it merely due to the
passage of time.
Importantly, the overwhelming majority of courts that have addressed laws banning
public female toplessness have upheld their constitutionality. See, e.g., Free the Nipple –
Springfield Residents Promoting Equal. v. City of Springfield, Mo., 923 F.3d 508, 512 (8th
Cir. 2019) (noting “important governmental interests in promoting public decency and
proscribing public nudity to protect morals, public order, health, and safety” and collecting
cases upholding similar laws); see also Kimberly J. Winbush, Regulation of exposure of
female, but not male, breasts, 67 A.L.R.5th 431, § 2[a] (1999) (“As a general rule, the
13 courts have concluded that the equal protection clause of the Fourteenth Amendment does
not prohibit such ordinances . . . .”). 7
Plaintiffs acknowledge Biocic and the other courts that have expressed the same
view. They ask us to overrule Biocic, however, largely suggesting it represents a viewpoint
that is outdated at best and misguided at worst. As far as being outdated, Plaintiffs argue
that “[t]his nation has evolved significantly” during the thirty years since this Court issued
its decision in Biocic. Appellants’ Br. at 41. Therefore, in light of what they characterized
as the changing public sentiment towards females as well as the Supreme Court’s recent
equal protection jurisprudence, Plaintiffs ask the Court to overrule Biocic and conclude
that protecting the public sensibilities is no longer an important government interest.
To be sure, public attitudes about gender and sexuality are constantly changing and
evolving. But our precedent has not changed. As a three-judge panel, we may not overrule
Biocic, and it has not been overruled by the Supreme Court. In any event, Plaintiffs
arguments do not persuade us that the important government interest we recognized then
is no longer important.
7 The outlier on this issue is Free the Nipple-Fort Collins v. City of Fort Collins, Co., 916 F.3d 792 (10th Cir. 2019). There, the Tenth Circuit, in a divided decision, held a similar ordinance failed to withstand heightened scrutiny when justified on three reasons other than public sensibilities. See id. at 802–05. The issues presented to the Tenth Circuit, however, were in a different procedural context. The Tenth Circuit was reviewing a district court’s issuance of a preliminary injunction; therefore, its finding on the constitutionality of the ordinance was limited to concluding that the plaintiffs “made a strong showing of their likelihood of success on the merits . . . .” Id. at 805. Even so, it acknowledged that its decision represented “the minority viewpoint.” Id.
14 As far as being misguided, Plaintiffs point out that perceived public moral
sensibilities have been used to justify government action that we now recognize to be
unconstitutional if not outright immoral. On this issue, they have a point. The judicial
legacy of justifying laws on the basis of the perceived moral sensibilities of the public is
far from spotless. Some government action that we now rightly view as unconstitutional,
if not immoral, has been justified on that basis. Even so, in this situation, protecting public
sensibilities serves an important basis for government action. Thus, following Biocic and
the majority of courts that have addressed the issue, we find 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. 8
Last, Plaintiffs alternatively argue that, even if Biocic controls, Ocean City has not
established that the Ordinance is substantially related to protecting the public sensibilities
of Ocean City residents and vacationers. That position, however, is belied by the record.
Ocean City 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.
8 Of course, the Ordinance could serve other important governmental interests, such as “promoting public decency and proscribing public nudity to protect morals, public order, health, and safety.” See City of Springfield, Mo., 923 F.3d at 512. But those are not before us, and Biocic controls on the important governmental interest advanced by Ocean City.
15 Undeterred, Plaintiffs offer several counter-arguments. First, they criticize Ocean
City’s evidence. They argue it is not illustrative of the views of Ocean City because its
population is transient due to tourism. But the emails sent to Mayor Meehan undermine
this argument. Alongside the view of residents, many of the emails came from tourists who
indicated that they would not vacation in Ocean City if public female toplessness was
allowed.
Additionally, Plaintiffs argue the testimony of Ocean City’s leaders who expressed
their opinions on the public sensibilities concerning female toplessness lacks sufficient
scientific basis. For example, they suggest that Ocean City officials did not save all emails
related to the Ordinance and point out that the “names of the people who complained by
telephone or in person were not recorded . . . .” Appellants’ Br. at 23. But nothing in our
precedent requires that a municipality empirically prove the public sensibilities of a
community. 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. That is sufficient to show that the Ordinance is substantially related to
this important governmental interest.
Finally, Plaintiffs contend the district court erred by excluding Dr. Herbenick’s
expert reports and testimony. They claim that this evidence reveals that public female
toplessness does not violate the public sensibilities of Ocean City residents and vacationers.
Even so, much of their briefing focuses on explaining Dr. Herbenick’s qualifications and
the methodology that she used to reach her opinions. Those arguments, however, miss the
16 point. To be sure, Dr. Herbenick has experience and expertise in human sexuality,
including American societal attitudes concerning female breasts. But that does not make
her testimony or opinions relevant to the discrete issue in this case—the public sensibilities
of Ocean City residents and vacationers on the issue of public female toplessness. As the
district court properly noted, while Dr. Herbenick’s supplemental expert report does show
a substantial transformation in male and female swimwear in Ocean City over the last
century, “[t]he issue facing the Court is not whether society’s ideas around appropriate
beachwear have evolved over time, as they undeniably have . . . .” J.A. 1304a. The issue is
the current public sensibilities on the issue of public female toplessness, and Dr. Herbenick
offered no evidence that the public sensibilities of Ocean City residents or vacationers have
evolved on that discrete issue.
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.”
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). “In reviewing a trial
court’s ruling on experts, we are mindful of the Supreme Court’s admonition against
‘applying an overly stringent review . . . [that] fail[s] to give the trial court the deference
that is the hallmark of abuse-of-discretion review.’” United States v. Ancient Coin
Collectors Guild, 899 F.3d 295, 318 (4th Cir. 2018) (alterations in original) (quoting Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)). Accordingly, and in light of our deferential
standard of review, we cannot conclude that the district court erred in concluding that Dr.
17 Herbenick’s testimony would not be helpful “to understand the evidence or to determine a
fact in issue.” 9 See Fed. R. Evid. 702(a).
In sum, Ocean City has met its burden of showing the Ordinance is substantially
related to an important government interest. The burden of proving the Ordinance’s
constitutionality rests with Ocean City, and it offered the only admissible evidence on the
public sensibilities of Ocean City residents and vacationers. Accordingly, we find that
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. See Virginia at 518 U.S. at 533. Therefore, we affirm the district
court’s grant of Ocean City’s Motion for Summary Judgment on Plaintiffs’ equal
protection claim. 10
9 Similarly, we conclude that the district court did not err in denying Plaintiff’s Motion to Exclude the testimony of Mayor Meehan and Council Member Knight. These witnesses were offered as lay witnesses. They provided opinion testimony that was based on their perceptions dealing with Ocean City residents and vacationers, was helpful in determining Ocean City’s purpose in adopting the Ordinance and was not based on scientific, technical or other specialized knowledge. This is a quintessential example of the type of opinion testimony from lay witnesses that is permitted by Federal Rule of Evidence 701, and the district court did not abuse its discretion in finding it admissible. See United States v. Hassan, 742 F.3d 104, 130, 135–36 (4th Cir. 2014) (outlining the requirements for lay opinion testimony and noting that we will only overturn an evidentiary ruling “that is arbitrary and irrational” (internal quotation marks omitted)). 10 Because we find that the district court properly concluded there was no constitutional violation, we also affirm the district court’s grant of summary judgment on
18 III.
For the reasons stated above, the district court’s Order granting Ocean City’s Motion
for Summary Judgment, denying Plaintiffs’ Motion for Summary Judgment and denying
Plaintiffs’ Motion to Exclude is
AFFIRMED.
Plaintiffs’ Monell claim. And we find, for the reasons expressed by the district court, that the Ordinance does not violate Article 46 of the Maryland Constitution.
19 GREGORY, Chief Judge, concurring:
I agree that we must affirm the district court’s grant of summary judgment to Ocean
City under United States v. Biocic, 928 F.2d 112, 115–16 (4th Cir. 1991). However, I write
separately, concerned that Biocic’s reasoning is inconsistent with equal protection
principles. In Biocic, this Court upheld gender-based distinctions in nudity laws, believing
them to substantially relate to an important governmental interest: “protecting the
[community’s] moral sensibilities.” Id. at 115. Though we are bound by Biocic, the
majority properly recognizes that “[s]ome government action that we now rightly view as
unconstitutional, if not immoral,” has been justified by invoking “the perceived moral
sensibilities of the public.” Maj. Op. at 15. This case raises the question, then, of how we
distinguish between the types of disparate treatment justified by a community’s public
sensibilities and those that are not.
Ordinarily, we answer this question by determining whether the law’s
discriminatory classifications “create or perpetuate the legal, social, and economic
inferiority of women.” United States v. Virginia, 518 U.S. 515, 533 (1996). A law
discriminating this way would not be permissible on the grounds that it reflected the views
of a particular community. See Lawrence v. Texas, 539 U.S. 558, 582 (2003) (O’Connor,
J., concurring) (“Indeed, we have never held that moral disapproval, without any other
asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify
a law that discriminates among groups of persons.”).
But Biocic contradicts this rule by permitting gender discrimination so long as the
law doing so is supported by “public sensibilities.” Because local legislative bodies
20 represent the communities that elected them, their legislative acts presumably reflect the
public sensibilities of those communities. See Reynolds v. Sims, 377 U.S. 533, 562 (1964)
(“As long as ours is a representative form of government, [] our legislatures are those
instruments of government elected directly by and directly representative of the people.”).
Upholding discrimination because it reflects public sensibilities therefore defers to the
legislative body that passed it, effectively applying a kind of rational-basis review contrary
to the heightened scrutiny required under the Equal Protection Clause. See Virginia, 518
U.S. at 555.
Moreover, the Court’s heightened scrutiny is incomplete if we assume without
deciding that this ordinance enacts a form of gender-discrimination. See Biocic, 928 F.2d
at 115. Heightened scrutiny serves the purpose of “smok[ing] out” any impropriety
underlying a form of discrimination. See Johnson v. California, 543 U.S. 499, 506 (2005)
(quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)); Cary Franklin, The Anti-
Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83,
146 (2010). Because of that, each step in the intermediate scrutiny analysis is
interconnected. See Franklin, The Anti-Stereotyping Principle, supra, at 138 n.296 (“The
anti-stereotyping principle pervades both stages of [intermediate scrutiny], shaping what
constitutes an important interest and what means qualify as sufficiently narrowly tailored
to serve this interest.”). Thus, we must grapple with the nature of the alleged discrimination
to establish whether the government’s ends justify its means. Rather than assuming that
this ordinance presents a cognizable form of gender-based discrimination, this Court must
ask whether it perpetuates the legal, social, or economic inferiority of women.
21 Many of the Supreme Court’s gender-discrimination cases have involved laws
erecting economic, educational, or employment barriers between men and women. See,
e.g., Califano v. Westcott, 443 U.S. 76, 84, 88–89 (1979) (holding unconstitutional
provision that gave unemployed-parent benefits exclusively to fathers); Califano v.
Goldfarb, 430 U.S. 199, 206–207 (1977) (plurality opinion) (holding unconstitutional a
Social Security classification that denied widowers survivors’ benefits available to
widows); Weinberger v. Wiesenfeld, 420 U.S. 636, 648–653 (1975) (holding
unconstitutional a Social Security classification that excluded fathers from receipt of child-
in-care benefits available to mothers); Frontiero v. Richardson, 411 U.S. 677, 688–691
(1973) (plurality opinion) (holding unconstitutional exclusion of married female officers
in the military from benefits automatically accorded married male officers); Reed v. Reed,
404 U.S. 71, 74, 76–77 (1971) (holding unconstitutional a probate-code preference for a
father over a mother as administrator of a deceased child’s estate); Virginia, 518 U.S. at
555–58 (holding unconstitutional the Virginia Military Institute’s male-only admissions
policy).
But the Court’s gender-discrimination cases extend beyond economic or
educational opportunities. In Craig v. Boren, the Supreme Court struck down a sex-based
restriction on the purchase and sale of certain alcoholic beverages. 429 U.S. 190, 204
(1976). Though the law imposed a relatively insignificant burden, the Court nevertheless
recognized it to fall within a run of statutes that impermissibly rested upon “‘archaic and
overbroad’ generalizations” about gender. Id. at 198 (quoting Schlesinger v. Ballard, 419
U.S. 498, 508 (1975)).
22 Across all of these cases, the Court has consistently struck down gender-based
restrictions, even ones supposedly based upon “reasonable considerations,” because those
laws were premised upon noxious gender stereotypes. See J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127, 135 (1994). Laws premised upon noxious gender stereotypes stand as yet
another plank propping up the structure of gender inequality. While many of those laws
were enacted out of a paternalistic attempt to “protect” members of a certain gender, they
proved unconstitutional because they relied upon stereotypical understandings of where
men and women belong both in the public and at home. See Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 725 & n.10 (1982); Weinberger, 420 U.S. at 648–653. And the
Constitution requires us to remain wary of those paternalistic laws in search of victims to
protect. See Sessions v. Morales-Santana, 137 S. Ct. 1678, 1692 (2017); Melissa Murray,
Inequality’s Frontiers, 122 Yale L. J. Online 235, 236–37, 239–40 (2013).
At first glance, Ocean City’s ordinance seems innocuous enough. It forbids public
nudity and defines nudity in a way commonly understood across western societies. But we
must take care not to let our analysis be confined by the limits of our social lens. See
Obergefell v. Hodges, 576 U.S. 644, 673 (2015). Suppose the ordinance defined nudity to
include public exposure of a woman’s hair, neck, shoulders, or ankles. Would that law not
run afoul of the Equal Protection Clause? 1 While the ordinance here imposes a much
narrower restriction on women, this is only a difference in degree, and not in kind.
1 This is not to suggest that there is anything wrong, for example, with women choosing to cover their hair due to personal or religious beliefs about modesty. Where such a rule is imposed broadly by law, however, such a restriction takes on different meaning.
23 Viewed in this light, laws that discriminate between male and female toplessness
embody problematic stereotypes through the control imposed upon the bodies of women
and not men. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 915 (1992)
(Stevens, J., concurring in part, dissenting in part) (“‘Our whole constitutional heritage
rebels at the thought of giving government the power to control men’s minds.’ . . . The
same holds true for the power to control women’s bodies.”). By requiring women to cover
up, such laws heighten the “feminine mystique” and all the baggage that it forces women
to carry. See generally Betty Friedan, Feminine Mystique (1963); bell hooks, Feminist
Theory: From Margin to Center (1984). By treating women’s breasts (but not those of
men) as forbidden in public sight, these laws may reduce women’s bodies to objects of
public gaze, reproduce the Victorian-era belief that women should be seen but not heard,
and reinforce stereotypes that sexually objectify women rather than treating them as people
in their own right.
In Free the Nipple-Fort Collins v. City of Fort Collins, Co., the Tenth Circuit came
to that very conclusion. 916 F.3d 792, 802–05 (10th Cir. 2019). It determined that laws
prohibiting female toplessness perpetuate negative sex-object stereotypes about women
and their bodies. Id. To be sure, the Tenth Circuit’s case differs from our case
procedurally, and it contains a different factual record as well. Even considering the
evidence excluded by the district court, Plaintiffs present little evidence connecting female
24 toplessness to gender stereotypes. 2 Nevertheless, this Court should reconsider Biocic and
apply greater scrutiny to fulfill the full promise of equal protection.
2 For example, Plaintiffs offer journal articles that reference the sexual objectification of women, but these sources do not mention nudity laws at all, let alone explain how such laws are related. Plaintiffs’ expert, Dr. Herbenick, states in her report that disparate treatment of male and female breasts “may contribute to harmful secondary effects, such as . . . promoting a culture that oversexualizes girls and women.” J.A. 1260. But she does not actually explain why or how. The corresponding section of her report instead discusses whether the public thinks female toplessness should be banned.