An activist who walked along the lakefront with her breasts exposed to protest Chicago’s public indecency ordinance could very well have made her point with her clothes on, a prim and proper federal appeals court has ruled.
But the decision to uphold a law that discriminates between male and female breasts prompted a split on the 7th Circuit U.S. Court of Appeals, and — schoolboy snickering aside — an interesting debate between judges Frank Easterbrook, Diane Sykes and Ilana Rovner in the 2-1 ruling.
Sykes, who has been praised by President Donald Trump and is tipped as a potential future U.S. Supreme Court justice, wrote in the majority opinion that protester Sonoku Tagami was not exercising her first amendment rights when she stripped off on “GoTopless Day” in August 2014.
Citing a prior case in which a court found that “being in a state of nudity is not an inherently expressive condition,” Sykes wrote that it was “self-evident” that the ordinance upheld “traditional moral norms and public order.”
According to the ordinance, male breasts are free to be bared in public parks, playgrounds, on beaches, or in “the waters adjacent thereto,” in school facilities or any municipal building. Female breasts — or at least the portion “at or below the upper edge of the areola” — are not, with offenders facing a fine of $100 to $500.
Sykes wrote that the discrimination against women is constitutional in this case because it appropriately “serves important governmental objectives.”
Rovner disagreed, arguing that upholding laws simply because they have been “part of our culture” would have denied society “women lawyers, women jurors, women estate administrators or women military cadets.”
“Tagami was not sunbathing topless to even her tan lines, swinging topless on a light post to earn money, streaking across a football field to appear on television, or even nursing a baby,” she wrote in her dissent. “Her conduct had but one purpose — to engage in a political protest… It is difficult to imagine conduct more directly linked to the message than that in which Tagami engaged.”
She continued, “Any invocation of tradition and moral values in support of a law that facially discriminates among classes of people calls for a healthy dose of skepticism on our part, as historical norms are as likely to reflect longstanding biases as they are reasonable distinctions.”
“The City’s claim … boils down to a desire to perpetuate a stereotype that female breasts are primarily the objects of desire, and male breasts are not.”
Lest she be misunderstood, Rovner added, “Do I relish the prospect of seeing bare-chested women in public? As a private citizen, I surely do not. (I would give the same answer with respect to bare-chested men.) But I speak here strictly as a judge, with the responsibility to accord Tagami her constitutional rights.”
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