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Could the U.S. Supreme Court overturn the “moral sensibility” protection of a law banning women from exposing their breasts on Ocean City, Md. beaches? On Dec. 1 a petition was filed before the highest court in the land asking it to overturn the beach town’s law on constitutional grounds.

The request stems from a 2017 law passed in Ocean City that prohibits only women from going topless. After a woman named Chelsea Eline reportedly informed the town’s police force that she had the same rights as a man to go shirtless, the ordinance was approved by city leaders who were anxious to keep the resort town family-friendly.

Eline and four other women responded by filing a lawsuit in 2018 that claimed the new law violated their constitutional rights. Ocean Beach officials reacted in turn by submitting as evidence letters and phone calls from residents who supported the ban by a wide majority. In April 2020, a federal judge in Baltimore rejected the plaintiffs’ argument and upheld that Ocean City’s Motion for Summary Judgment was legal and met the requirements of the Constitution’s Equal Protection Clause.

It took less than a month for the plaintiffs to appeal that decision. In August, however, a three-judge panel of the appellate court agreed with the lower court’s reasoning.

Judge A. Marvin Quattlebaum Jr. wrote, “the prohibition on public female toplessness is substantially related to the important governmental interest in protecting the public sensibilities of Ocean City.” Quattlebaum argued that many courts across the country have upheld similar laws.

Since that decision, the plaintiffs are now hoping the Supreme Court justices will look at their petition.

“The specific question that the petition asks is whether ‘protecting traditional moral sensibilities — the overarching defense for the Ocean City ordinance — is an important governmental interest that a municipality can use to support what the petitioners consider a discriminatory gender-based classification,” according to Yahoo!News.

The request also argues that the law is based on “longstanding discriminatory and sexist ideology in which women are viewed as inherently sexual objects without the agency to decide when they are sexual and when they are not.”

An attorney for the named plaintiffs, Devin Jacob, filed a writ of certiorari last week in the U.S. Supreme Court.

“Is protecting the traditional moral sensibilities an important governmental interest on which the government may lawfully base a discriminatory gender-based classification as the Fourth and Seventh Circuits held, or not an important governmental interest as the 10th Circuit, and this court, held?” the attorney asked in the petition.

“Is the all-encompassing sex and gender classification of ‘female,’ provided in Ocean City’s ordinance, sufficiently tailored to achieve an important governmental interest?” he also questioned.

The Supreme Court traditionally hears only a fraction of the cases petitioned annually, as noted by The Dispatch. But this case may move the continuing discussion over where the line is drawn between an ongoing discussion over what constitutes gender equality and what determines “moral sensibility.”

The implications could be significant — not just for Ocean City but on a national level.

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Robin Beres

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