The constitutionality of Ocean City’s law banning women — and not men — from sunbathing topless could potentially go before the U.S. Supreme Court after the attorneys representing five women in the case petitioned the nation’s highest court earlier this month.
The petitioners are asking the Supreme Court to review the Aug. 4 federal appeals court ruling, which determined that Ocean City’s law is constitutional.
This petition was filed Dec. 1, and the court has until Jan. 7 to respond, according to the U.S. Supreme Court docket.
While the Supreme Court hears only a small percentage of cases petitioned, this move continues a new chapter in the ongoing debate over what is protecting “moral sensibility” or violating gender equality in Maryland’s largest beach town.
In 2017, Ocean City passed a law banning only women from exposing their breasts in public. It came after one of the plaintiffs in the case, Chelsea Eline, contacted Ocean City police and said it was her right to go topless.
Eline and four other women then filed a lawsuit against the town in 2018, claiming that the ordinance violated their constitutional rights.
A federal judge first ruled in April 2020 that the town’s ordinance was legal and did not violate the U.S. Constitution’s Equal Protection Clause, as the plaintiffs argued.
Then, less than a month later, Eline and her fellow plaintiffs appealed the ruling to the U.S. Court of Appeals.
In August, a federal appeals court again affirmed Ocean City’s right to ban women from going topless in the town.
In this decision, Judge A. Marvin Quattlebaum Jr. wrote that Ocean City’s elected leaders are within their rights to enact laws that protect public sensibilities.
“The judicial legacy of justifying laws on the basis of the perceived moral sensibilities of the public is far from spotless. Some government action that we now rightly view as unconstitutional, if not immoral, has been justified on that basis,” Quattlebaum wrote. “Even so, in this situation, protecting public sensibilities serves an important basis for government action.”
The court denied the appellants’ request to rehear the case on Sept. 2.
Since that court upheld the lower court’s ruling, and the plaintiffs once again lost their case, they’re now hoping to take the question of constitutionality to the U.S. Supreme Court.
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.
This latest move asks the court to declare that Ocean City’s ordinance violates the Equal Protection Clause of the Constitution “because the discriminatory gender classification contained in the ordinance does not further an important governmental interest, and is not narrowly tailored to achieve its objective.”
The court document further argues that the ordinance stems from “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.”
This article originally appeared on Salisbury Daily Times: Ocean City lawsuit over banning topless women sent to Supreme Court