This is something of a delicate case that’s been going back and forth in the courts of New Hampshire for more than three years now. Under a long-standing municipal obscenity ordinance, Ginger Pierro was arrested in 2016 for performing yoga while topless at a public beach. Days later, two more women, Heidi Lilley and Kia Sinclair were similarly arrested for going topless at a different beach in protest of Pierro’s arrest. All three women were given a suspended fine of $100 dependent on “future good behavior.”

They appealed the convictions, eventually taking their case all the way to the state supreme court, where the convictions were upheld. At that point, their attorneys decided to appeal to the Supreme Court. Unfortunately for them, the Supremes refused to take the case and allowed the convictions to stand. (Reuters)

The Supreme Court on Monday decided not to “Free the Nipple,” refusing to hear an appeal by three women fined by a city in New Hampshire for exposing their breasts in public who argued that banning female but not male toplessness violates the U.S. Constitution.

The justices left in place a 2019 ruling by New Hampshire’s top court upholding the women’s convictions for violating an ordinance in the city of Laconia that makes it illegal to show female breasts in public “with less than a fully opaque covering of any part of the nipple.”

I’m rather surprised that the justices decided to take a pass on this case. One might make that argument that this isn’t really a constitutional question and is best left to state and local governments based on the wishes of their voters. In fact, that’s the precise argument Ed Morrissey made last year regarding a similar “free the nipple” case in Utah.

But the Supreme Court is regularly called upon when there are conflicting decisions in the lower courts. That’s just what’s happened here. The New Hampshire state supreme court has ruled that public nudity laws that apply only to women are allowable. But the Tenth Circuit ruled that such bans are unconstitutional, in a decision that affected all such rules in six western states. With these two directly contradictory rulings, it only made sense that the Supremes should step in and settle the matter.

Beyond that, we still have the question of whether or not you can have rules that apply unequally to men and women. On the surface, it certainly sounds as if you can’t. If you’re going to allow men to walk around in public without a shirt, insisting that women must keep their nipples covered appears to be a blatant violation of the 14th Amendment’s requirement that the law must be applied equally to everyone, regardless of gender (as well as other demographics).

When Ed debated this subject, he took the opposite approach. He argued that “there are natural and significant differences between men and women that require specific attention in public indecency laws, which means there is a rational and essentially non-discriminatory reason for drawing those distinctions.”

That’s very similar in style to the conclusion reached by the New Hampshire state supreme court. When they ruled against the women and upheld the municipal statute, they claimed that the law applied equally to both men and women because neither were allowed to go nude in public. But they further claimed that their decision was based on “the traditional understanding of what constitutes nudity.” In other words, a man wearing only his board shorts with his chest exposed isn’t nude. But a woman wearing only her bikini bottom without the top is nude. How is that justifiable?

In the end, this sounds like one of those “everybody knows” arguments. But the problem with such interpretations is that “everybody” never knows any given thing. Certainly, most people “know” various socially accepted assumptions, but there’s always somebody ready to upset the apple cart. And “everybody knows” arguments rarely do well in the courts. In this case, however, it was apparently a persuasive enough argument for New Hampshire and strong enough that the Supremes didn’t want to fight it out. I have to disagree with them, however.