From: dank@blacks.jpl.nasa.gov (Dan Kegel)
Subject: Re: topless in NY state?
Organization: Image Analysis Systems Group, JPL
Date: Fri, 24 Jul 1992 00:35:53 GMT

eck@panix.com (Mark Eckenwiler) writes:
>But don't believe me; here's the opinion: 
>           The People &c., Respondent, v. Ramona Santorelli and Mary
>                  Lou Schloss, Appellants, et al., Defendants.
>                          COURT OF APPEALS OF NEW YORK
>...
Thanks for posting the opinion.  It's a good read, everybody should
take a peek.  Turns out the majority sidestepped the consitutional
issue and ruled very, very narrowly.  A minority ruled broadly that
the statute violated the NY ERA.  Here are excerpts from the minority opinion:

>... The explicit purpose of the new law was to protect 
>parents and children who use the public beaches and parks "from the 
>discomfort caused by unwelcome public nudity" (id.; accord, Bill 
>Jacket, L 1983, ch 216, Sponsors' Memorandum re A-5638; id., Letter 
>dated May 31, 1983 from Assembly Member G.E. Lipshutz to Governor 
>Cuomo re: A-5638). Simply put, the focus of the legislation was to 
>proscribe nude sunbathing by ordinary citizens (see, People v 
>Hollman, 68 NY2d 202). It thus cannot seriously be argued that the 
>present version of Penal Law sec. 245.01 was intended to be limited, as 
>its predecessor may have been, to commercially-motivated conduct.
>... Finally, whatever the Court may 
>have said about the limitations of the predecessor provision (see, 
>People v Price, supra), this Court has already applied the current 
>version of Penal Law 245.01 to the public exposure of a person's 
>"intimate parts," even where the conduct was merely an expression of 
>a personal philosophy or a simple effort to "enhance * * * comfort 
>[or] acquire an even tan" (People v Hollman, supra, at 206). Our 
>analysis in People v Hollman (supra), thus plainly belies the 
>limiting construction the majority now seems to   [*10]   adopt.
>... the majority has gone 
>well beyond the limits of statutory construction and has, in effect, 
>rewritten a statute so that it no longer applies to precisely the 
>conduct that the Legislature intended to outlaw.
So there's no reason to believe that the court was favorably inclined
to nudity in general (but read section below on ingrained cultural attitudes).

>...
>   Although protecting public sensibilities is a generally 
>legitimate goal for legislation (see, e.g., People v Hollman, 
>supra), it is a tenuous basis for justifying a legislative 
>classification that is based on gender, race or any other grouping 
>that is associated with a history of social prejudice (see, 
>Mississippi Univ. for Women v Hogan, 458 U.S. 718, 725 ["care must 
>be taken in ascertaining whether the statutory objective itself 
>reflects archaic and stereotypic notions"]). Indeed, the concept of 
>"public sensibility" itself, when used in these contexts, may be 
>nothing more than a reflection of commonly-held preconceptions and 
>biases. One of the most important purposes to be served by the equal 
>protection clause is to ensure that "public sensibilities" grounded 
>in prejudice and unexamined stereotypes  [*13]   do not become 
>enshrined as part of the official policy of government. Thus, where 
>"public sensibilities" constitute the justification for a 
>gender-based classification, the fundamental question is whether the 
>particular "sensibility" to be protected is, in fact, a reflection 
>of archaic prejudice or a manifestation of a legitimate government 
>objective (cf., People v Whidden, 51 NY2d 457, 461).
> 
>   Viewed against these principles, the gender-based provisions of 
>Penal Law sec. 245.01 cannot, on this record, withstand scrutiny. 
>Defendants contend that apart from entrenched cultural expectations, 
>there is really no objective reason why the exposure of female 
>breasts should be considered any more offensive than the exposure of 
>the male counterparts. They offered proof that, from an anatomical 
>standpoint, the female breast is no more or less a sexual organ than 
>is the male equivalent (see, e.g., J McCrary, Human Sexuality [1973] 
>141). They further contend that to the extent that many in our 
>society may regard the uncovered female breast with a prurient 
>interest that is not similarly aroused by the male equivalent (but 
>see Kinsey, Sexual Behavior in the Human Female [1953] 586-587; 
>[*14]   Kinsey, Sexual Behavior in Human Male [1948] 575; Wildman, 
>Note on Males' and Females' Preference for Opposite-Sex Body Parts, 
>38 Psychological Reports 485-486), that perception cannot serve as a 
>justification for differential treatment because it is itself a 
>suspect cultural artifact rooted in centuries of prejudice and bias 
>toward women. Indeed, there are many societies in other parts of the 
>world -- and even many locales within the 
> 
>United States -- where the exposure of female breasts on beaches and 
>in other recreational area is commonplace and is generally regarded 
>as unremarkable. n3
> 
>- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - 
>- - - - - -
> 
>    n3 Interestingly, expert testimony at appellants' trial 
>suggested that the enforced concealment of women's breasts 
>reinforces cultural obsession with them, contributes toward 
>unhealthy attitudes about breasts by both sexes and even discourages 
>women from breastfeeding their children.
> 
>- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - 
>- - - - - -
> 
>    It is notable that, other jurisdictions have taken the position 
>that breasts are not "private parts" and that breast exposure is not 
>indecent behavior [*15]   (State v Parenteau, Ohio Misc 2d 10, 11, 
>citing State v Jones, 7 NC App 165; State v Moore, 241 P2d 455; 
>State v Crenshaw, 61 Haw 68; see also Duvallon v State, 404 So 2d 
>196), and twenty-two states specifically confine their statutory 
>public exposure prohibitions to uncovered genitalia. n4
> 
>- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - 
>- - - - - -
> 
>    n4 See, Alaska Stat sec. 11.41.460; Cal Penal Code Ann sec. 314 West; 
>Col Rev Stat sec. 18-7-302; Idaho Code sec. 18-4104; Iowa Code sec. 709.9; 
>Kan Stat Ann sec. 21-4301; Ky Rev State Ann sec. 510-150; Me Rev Stat Ann 
>17-A, sec. 854; Mo Rev Stat sec. 566-130; Mont Code Ann sec. 45-5-504; Neb 
>Rev Stat sec. 28.806; NH Rev Stat Ann sec. 645.1; ND Cent Code sec. 
>12.1-20-12.1; NM Stat Ann 30-9-13; Okla Stat, tit 21, sec. 1021; Or Rev 
>Stat sec. 163.465; RI Gen Laws sec. 11-45.1; SD Codified Laws Ann sec. 
>22-24-1; Tenn Code Ann sec. 39-13.511; Tex Penal Code Ann sec. 21.08; Utah 
>Code Ann sec. 76-9-702; Wisc Stat sec. 944.20; see also Robins v Los 
>Angeles County, 56 Cal Rptr 853.
> 
>- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - 
>- - - - - -
> 
>   The People in this case have not refuted  [*16]   this evidence 
>or attempted to show the existence of evidence of their own to 
>indicate that the non-lewd exposure of the female breast is in any 
>way harmful to the public's health or well being. Nor have they 
>offered any explanation as to why, the fundamental goal that Penal 
>Law sec. 245.01 was enacted to advance -- avoiding offense to citizens 
>who use public beaches and parks -- cannot be equally well served by 
>other alternatives (see, Wengler v Druggists Mut. Ins. Co., 446 U.S. 
>142, 151-152; Orr v Orr, 440 U.S. 268, 281-283).
> 
>   In summary, the People have offered nothing to justify a law that
>discriminates against women by prohibiting them from removing their 
>tops and exposing their bare chests in public as men are routinely 
>permitted to do. The mere fact that the statute's aim is the 
>protection of "public sensibilities" is not sufficient to satisfy 
>the state's burden of showing an "exceedingly persuasive 
>justification" for a classification that expressly discriminates on 
>the basis of sex (see, Kirchberg v Feenstra, 450 U.S. 455, 461). 
>Accordingly, the gender-based classification established by Penal 
>Law sec. 245.01 violates appellants' equal  [*17]   protection rights 
>and, for that reason, I concur in the majority's result and vote to 
>reverse the order below.

So at least with the minority, one could conceivably make a case for
the legality of nude sunbathing.
- Dan K.