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“Free the nipple” heading to SCOTUS?

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This has been a closely watched case in New Hampshire, both in terms of free speech and gender discrimination. (And I don’t mean “closely watched” just because it involves topless women.) Three Granite State ladies, Heidi Lilley, Kia Sinclair and Ginger Pierro, were arrested in 2016 for going topless at a local beach and refusing to cover up after other bathers complained. They were subsequently convicted of violating a local indecent exposure law. Their initial appeals were rejected and now the state’s highest court has agreed with the previous judges and declared that the conviction was not a violation of their rights and the ordinance does not unfairly treat men and women differently. (Associated Press)

New Hampshire’s highest court on Friday upheld the conviction of three women who were arrested for going topless on a New Hampshire beach, arguing their constitutional rights were not violated.

In a 3-2 ruling Friday, the court found Laconia’s ordinance does not discriminate on the basis of gender or violate the women’s right to free speech. In a dissenting opinion, Associate Justice James P. Bassett with Senior Associate Justice Gary E. Hicks found the ordinance was unconstitutional because it treats men and women differently.

Heidi Lilley, Kia Sinclair and Ginger Pierro are part of the Free the Nipple campaign — a global campaign advocating for the rights of women to go topless. They were arrested in 2016 after removing their tops at a beach in Laconia and refusing to put them on when beachgoers complained. Pierro was doing yoga, while the two others were sunbathing.

This obviously isn’t up there on the priority list with civil rights complaints, border security or abortion, but it would still be an interesting case for the Supreme Court to take up. (And the women are currently considering such an appeal.)

The judges in this case are making an argument that seems awfully tough to substantiate. Associate Justice Anna Barbara Hantz Marconi cited the fact that “courts generally upheld laws that prohibit women but not men from exposing their breasts against equal protection challenges.” That may be the case, but courts regularly upheld laws supporting slavery for a long time as well. We eventually moved past such notions.

The bottom line here is that the laws are supposed to apply equally to all. These laws are tailored specifically to treat women differently than men. There’s nothing unnatural about human breasts, and given the obesity epidemic the country is currently facing, I can assure you that there are some men out on those beaches with their tops off who could do with a larger cup size bra than at least one of the women who were convicted. Either the law applies to all citizens or it doesn’t.

For a more recent example of this double standard, look no further than Maroon 5 frontman Adam Levine removing his shirt entirely during the Super Bowl LIII halftime show. You’ll notice that people didn’t freak out the way they did when Janet Jackson had her little “wardrobe malfunction” a decade earlier.

Whether you find the idea of people going topless offensive or not, you risk running into all manner of offensive sights when you venture outside your front door. The courts have an obligation to strike down laws that treat people differently based on gender as well as race, religion and all the rest. The Free the Nipple advocates deserve their day before the Supreme Court and the justices should agree to hear this one.

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