Male and female breasts are not created equal when it comes to public bodily exposure, according to Maryland Attorney General Brian Frosh.
The state’s top lawyer finally weighed in this week on a legal controversy in Ocean City concerning the constitutionality of the state’s indecent exposure law banning women from removing their tops in public. In a letter to Worcester County State’s Attorney Beau Oglesby, Frosh wrote that applying the law to only women’s upper halves does not violate state and federal equal protection clauses because there are “real physical differences” between the male and female bodies.
Oglesby solicited Frosh’s opinion on the anatomical perception question last August after Eastern Shore bare-chest activist Chelsea Covington called for a review of state public indecency law, arguing constitutional protections allow all humans to expose their chests if they want to. Oglesby took her request and, after finding it difficult to clarify in his own review, asked Frosh to chime in.
Frosh didn’t respond to the request for more than nine months. As a result, beach season started off this year with some confusion about whether beach patrol cops could ask topless women to cover themselves.
Earlier this month, Ocean City Beach Patrol sent out a memo to its officers advising them to document, but forego approaching any topless women on the beach. Shortly afterward, rumors circulated nationally that Maryland’s most popular coastal destination had become a de facto topless beach.
Not so, said Ocean City lawmakers. To stem the hysteria and infighting between residents of the town, the town council unanimously passed an emergency ordinance last weekend clearly stating that going bare-chested is illegal and punishable with a fine of up to $1,000.
Frosh’s letter says that is a reasonable demand, citing a 1989 court case in which a federal judge upheld the constitutionality of a woman’s petty offense conviction for exposing her breasts at Chincoteague National Wildlife Refuge.
The government has an “important” interest in “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,” Frosh wrote, referring to said portions as “erogenous zones.”
Oglesby in a statement called Frosh’s opinion “a well-reasoned and comprehensive analysis of this legal question.”
Ocean City Mayor Rick Meehan, who last week defended his town against rumors of it allowing unfettered toplessness, said, “we have a responsibility to protect the rights of thousands of families who visit our beach and Boardwalk each summer season, and the letter of advice agreed with our position.”
Covington, who maintains a blog called “Breasts Are Healthy” (contains nudity), responded to Frosh’s letter in a statement given to The Washington Post, calling it “pathetically noncommittal” and said its contents were akin to “a book report written on the bus the morning it is due by a student who didn’t actually read the book.”
“The Attorney General stalled for a year, created unnecessary drama and contention between the parties, wrote a wildly incomplete analysis that clarifies nothing and will ultimately cost Ocean City a lot of money to defend an unconstitutional ordinance,” she said.
According to the Post, Covington plans to continue her fight in court.
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