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State v. Lilley

Supreme Court of New Hampshire

February 8, 2019


          Argued: February 1, 2018

          4th Circuit Court-Laconia District Division

          Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

          Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally), for the defendants.

          American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette on the brief), as amicus curiae.

          HANTZ MARCONI, J.

         The defendants, Heidi Lilley, Kia Sinclair, and Ginger Pierro, appeal a ruling of the Circuit Court (Carroll, J.) that they violated a City of Laconia ordinance prohibiting them from appearing in a state of nudity in a public place. See Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-2 (1998). We affirm.

         I. Background

         The following facts are drawn from the trial court's order on the defendants' motion to dismiss or are otherwise supported by the record. On May 28, 2016, Pierro went to Endicott Park Beach in Laconia. At the hearing on the defendants' motion to dismiss, Pierro testified that she "was topless" and was there "to enjoy the beach." She agreed with defense counsel that she was "performing yoga on the beach." She stated that she "was violently harassed" by "[s]everal citizens," but that "out of everybody on the beach, there were only actually a handful that were upset."

         Sergeant Black of the Laconia Police Department testified that, on that same day, he and Officer Callanan responded to the beach because the department had "received several calls about a female . . . doing nude yoga." Callanan testified that they approached a woman, later identified as Pierro, who was "not wearing any shirt and her breasts, as well as her nipples, were both exposed." Callanan stated that she "made attempts to speak to" Pierro, but that Pierro "continued to do her yoga poses." She explained that "after about a minute or so, [Pierro] looked up and acknowledged that we were, in fact, trying to speak to her." She testified that they "explained to [Pierro] that the reason [they] were making contact with her was in reference to a Laconia City Ordinance, since her nipples were exposed on the beach in a public place." Callanan stated that they asked Pierro "multiple times to cover up, to put her bathing suit top back on, or put her shirt back on," but that Pierro "refused."

         Callanan testified that Pierro was arrested for violating Laconia City Ordinance § 180-2 (the ordinance), which states, in relevant part, that "it shall be unlawful for any person to knowingly or intentionally, in a public place: . . . [a]ppear in a state of nudity." "Nudity" is defined as "[t]he showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple." Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-4 (1998).

         In 2015, Sinclair became involved in the "Free the Nipple" movement. Sinclair testified that she was one of the people who "started" the movement in New Hampshire after having her son and realizing "that there was a very big stigma on breastfeeding." She explained that she believed that breasts, specifically nipples, are "hypersexualize[d]" and "consider[ed] pornographic and taboo," which she stated results "in that stigma" and "contributes to the low breastfeeding rates that the United States has compared to the rest of the world." Sinclair told Lilley about the movement, which Lilley then joined. Lilley testified that she is "a feminist" and joined the movement because she "believe[s] in the equality of the male and female."

         On May 31, 2016, Sinclair and Lilley went topless to Weirs Beach in Laconia. While at the beach, they were arrested for violating the ordinance. Sinclair testified that she "purposely engaged in civil disobedience knowing that the City of Laconia has an ordinance against the exposure of the female nipple and areola." She stated that she was "protesting [Pierro's] case where she had been arrested a few days prior." Lilley testified that she was also protesting Pierro's arrest and that she "announced to the arresting police officer that [she] was acting in a protest and that [she] did not believe that [she] could be arrested for protesting." She further agreed with the prosecutor that, on that day, she "chose to take it upon [herself] to violate the ordinance to give attention to [her] cause."

         The defendants jointly moved to dismiss the charges against them. They argued that the ordinance violates the guarantee of equal protection and their right to free speech under the State and Federal Constitutions. They further contended that the City of Laconia lacked the authority to enact the ordinance and that the ordinance was preempted by RSA 645:1 (2016). Finally, the defendants maintained that the ordinance violates RSA chapter 354-A. See RSA ch. 354-A (2009 & Supp. 2017) (amended 2018). The State objected. Following a hearing, the court denied the defendants' motion. The court subsequently found the defendants guilty of violating the ordinance. This appeal followed.

         On appeal, the defendants argue that the trial court erred by denying their motion to dismiss because the ordinance: (1) violates their right to equal protection under the State and Federal Constitutions; (2) violates their rights to free speech and expression under the State and Federal Constitutions; (3) does not fall within the regulatory authority granted to the City of Laconia by the legislature; (4) is preempted by RSA 645:1; and (5) violates RSA chapter 354-A. We will address each of the defendants' arguments in turn.

         II. Equal Protection

         The defendants first argue that the ordinance violates their right to equal protection under Part I, Article 2 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution. See N.H. CONST. pt. I, art. 2; U.S. CONST. amend. XIV. We review the constitutionality of local ordinances de novo. McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154 N.H. 773, 777 (2007). We first address the defendants' arguments under the State Constitution and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33 (1983).

         We begin by addressing the scope of the defendants' challenge to the ordinance. An appellant may challenge the constitutionality of a statute or an ordinance[1] by asserting a facial challenge, an as-applied challenge, or both. See State v. Hollenbeck, 164 N.H. 154, 158 (2012). A facial challenge is a head-on attack of a legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications. Id. To prevail on a facial challenge, the challenger must establish that no set of circumstances exist under which the challenged statute or ordinance would be valid. Id. On the other hand, an as-applied challenge concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case. Id.

         Here, the defendants do not concede that the relevant portion of the ordinance is constitutional in any circumstance. They argue that "the ordinance makes a gender-based classification on its face." We construe their claim to be a facial challenge to the portion of the ordinance that prohibits "the showing of the female breast with less than a fully opaque covering of any part of the nipple" in a public place. See Laconia, N.H., Code of Ordinances ch. 180, art. I, §§ 180-2, 180-4. Thus, the defendants must demonstrate that there is no set of circumstances under which this ordinance might be valid. See Hollenbeck, 164 N.H. at 158.

         Next, we must determine the appropriate standard of review to apply to the ordinance. In re Sandra H., 150 N.H. 634, 637 (2004). We do this by examining the purpose and scope of the State-created classification and the individual rights affected. Id. Classifications based upon suspect classes are subject to strict scrutiny: the government must show that the legislation is necessary to achieve a compelling government interest and is narrowly tailored. Cmty. Res. for Justice v. City of Manchester, 154 N.H. 748, 759 (2007). Classifications which affect a fundamental right may be subject to strict scrutiny depending on the nature of the right and the manner in which it is affected. See Estate of Cargill v. City of Rochester, 119 N.H. 661, 667 (1979); see also Bleiler v. Chief, Dover Police Dep't, 155 N.H. 693, 697-98 (2007); Lamarche v. McCarthy, 158 N.H. 197, 204 (2008). Below strict scrutiny is intermediate scrutiny, which is triggered when the challenged classification involves important substantive rights, Sandra H., 150 N.H. at 637-38, and which requires the government to show that the challenged legislation is substantially related to an important government interest. Cmty. Res., 154 N.H. at 762. Finally, absent a classification based upon suspect classes, affecting fundamental rights, or involving important substantive rights, the constitutional standard of review is that of rationality. Sandra H., 150 N.H. at 638; cf. Gonya v. Comm'r, N.H. Ins. Dept., 153 N.H. 521, 532-33 (2006). Our rational basis test requires that legislation be rationally related to a legitimate government interest. Boulders at Strafford v. Town of Strafford, 153 N.H. 633, 639 (2006). Under this test, the party challenging the statute or ordinance must show that whatever classification is promulgated is arbitrary or without some reasonable justification. Id. at 640.

         The defendants argue that the ordinance discriminates on the basis of gender and/or sex; thus, strict scrutiny is the appropriate standard of review. The State counters that the ordinance only distinguishes between men and women on the basis of their different physical characteristics; thus, the rational basis test applies.

         Under federal equal protection law, pursuant to the Fourteenth Amendment, a classification based on gender triggers intermediate scrutiny. United States v. Virginia, 518 U.S. 515, 532-33 (1996). Part I, Article 2 of the New Hampshire Constitution states, however, "Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin." N.H. CONST. pt. I, art. 2. Thus, under the New Hampshire Constitution, gender is a suspect class and classifications based thereon trigger strict scrutiny. See Cheshire Medical Center v. Holbrook, 140 N.H. 187, 189 (1995); see also LeClair v. LeClair, 137 N.H. 213, 222 (1993) ("We apply the strict scrutiny test . . . when the classification involves a suspect class based on race, creed, color, gender, national origin, or legitimacy . . . ." (quotation omitted)) (superseded by statute on other grounds). In Holbrook, we applied strict scrutiny to the common law doctrine of necessaries, which made husbands legally liable for essential goods or services provided to their wives by third parties. Holbrook, 140 N.H. at 189-90. We concluded that there was no compelling justification for the gender bias embodied in the traditional necessaries doctrine. Id. at 189. However, Holbrook did not address the type of legislation that is at issue here: a proscription that imposes requirements on both men and women, but applies to women somewhat differently. Thus, Holbrook, the only case in which we have applied strict scrutiny to a gender-based classification, does not necessarily establish that the Laconia ordinance triggers strict scrutiny.

         Courts in other jurisdictions have generally upheld laws that prohibit women but not men from exposing their breasts against equal protection challenges. See generally Kimberly J. Winbush, Annotation, Regulation of Exposure of Female, but not Male, Breasts, 67 A.L.R.5th 431 (1999) (collecting cases). But see Free the Nipple Fort Collins v. City of Fort Collins, Colorado, 237 F.Supp.3d 1126, 1133 (D. Colo. 2017) (concluding that equal protection challenge to ordinance prohibiting women but not men from exposing their breasts was likely to succeed on the merits). In so doing, however, they have often left unclear the applicable standard of review. See Tolbert v. City of Memphis, Tenn., 568 F.Supp. 1285, 1290 (W.D. Tenn. 1983); City of Jackson v. Lakeland Lounge, 688 So.2d 742, 751-52 (Miss. 1996); State v. Turner, 382 N.W.2d 252, 255-56 (Minn.Ct.App. 1986); Free the Nipple - Springfield Residents Promoting Equality v. City of Springfield, Missouri, No. 15-3467-CV-S-BP, 2017 WL 6815041, at *2-3 (W.D. Mo. Oct. 4, 2017). Some courts have assumed without deciding that such laws are gender-based and thus trigger intermediate scrutiny under the Federal Constitution, and then upheld them on the grounds that the heightened requirements of intermediate scrutiny were satisfied. See Ways v. City of Lincoln, 331 F.3d 596, 600 (8th Cir. 2003); United States v. Biocic, 928 F.2d 112, 115 (4th Cir. 1991); J & B Soc. Club No. 1, Inc. v. City of Mobile, 966 F.Supp. 1131, 1139 (S.D. Ala. 1996). Others have explicitly held that laws which prohibit women but not men from exposing their breasts are gender-based and trigger intermediate scrutiny either under federal equal protection law or an analogous state constitutional provision. See Tagami v. City of Chicago, 875 F.3d 375, 380 (7th Cir. 2017), cert. denied, 138 S.Ct. 1577 (2018) (Federal Constitution); Buzzetti v. City of New York, 140 F.3d 134, 141-42 (2d Cir. 1998) (Federal Constitution); Craft v. Hodel, 683 F.Supp. 289, 299 (D. Mass. 1988) (Federal Constitution); City of Tucson v. Wolfe, 917 P.2d 706, 707 (Ariz.Ct.App. 1995) (state constitution); Dydyn v. Department of Liquor Control, 531 A.2d 170, 175 (Conn. App. Ct. 1987) (state constitution). Still others appear to have concluded that such laws do not trigger any form of heightened constitutional review. See Schleuter v. City of Fort Worth, 947 S.W.2d 920, 925-26 (Tex. App. 1997) (state constitution); City of Seattle v. Buchanan, 584 P.2d 918, 920-22 (Wash. 1978) (en banc) (state constitution); Eckl v. Davis, 124 Cal.Rptr. 685, 695-96 (Ct. App. 1975); see also Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256-57 (5th Cir. 1995).

         Among states, like New Hampshire, that define gender as a suspect class under their respective state constitutions, we are aware of none that apply strict scrutiny to ordinances similar to Laconia's.[2] See Buchanan, 584 P.2d at 921; City of Albuquerque v. Sachs, 92 P.3d 24, 27, 29 (N.M. Ct. App. 2004). Compare Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex. App. 1989) (recognizing that sex is a suspect class under Texas Constitution), with Schleuter, 947 S.W.2d at 925-26 (applying no heightened scrutiny to ordinance that restricted locations of businesses featuring female topless dancers).

         In Buchanan, for example, the Washington Supreme Court held that an ordinance which prohibited both men and women from being nude in public, but defined nudity for women to include exposure of the breast, "d[id] not . . . impose unequal responsibilities on women" because the ordinance "applie[d] alike to men and women, requiring both to cover those parts of their bodies which are intimately associated with the procreation function." Buchanan, 584 P.2d at 921. The court noted, "It is true that [the ordinance] requires the draping of more parts of the female body than of the male, but only because there are more parts of the female body intimately associated with the procreative function. The fact that the ordinance takes account of this fact does not render it discriminatory." Id. at 922. Thus the ordinance did not "classify . . . on the basis of sex." Id. at 921.

         The Eckl court reasoned similarly:

Nature, not the legislative body, created the distinction between that portion of a woman's body and that of a man's torso. Unlike the situation with respect to men, nudity in the case of women is commonly understood to include the uncovering of the breasts. Consequently, in proscribing nudity on the part of women it was necessary to include express reference to that area of the body. The classification is reasonable, not arbitrary, and rests upon a ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced are treated alike.

Eckl, 124 Cal.Rptr. at 696.

         While Washington and California appear to address these considerations in the threshold analysis of the applicable standard of review, other courts that apply intermediate scrutiny to these types of laws have upheld them based on similar reasoning. See, e.g., Craft, 683 F.Supp. at 300 (quoting Eckl); see also Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 468-69 (1981) (plurality opinion) ("[T]his court has consistently upheld statutes where the gender classification . . . realistically reflects the fact that the sexes are not similarly situated in certain circumstances.").

         We conclude that the Laconia ordinance does not classify on the basis of gender. The ordinance prohibits both men and women from being nude in a public place. See Laconia, N.H., Code of Ordinances ch.180, art. 1, §§ 180-2, 180-4. "[T]he ordinance here does not prevent exposure by one sex only." Buchanan, 584 P.2d at 922. That the ordinance defines nudity to include exposure of the female but not male breast does not mean that it classifies based upon a suspect class. See id.; Gonya, 153 N.H. at 532. "Unlike the situation with respect to men, nudity in the case of women is commonly understood to include the uncovering of the breasts." Eckl, 124 Cal.Rptr. at 696. The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity. See id.; Sachs, 92 P.3d at 29; see also Biocic, 928 F.2d at 115-16 (noting that female breasts have traditionally been regarded by society as an erogenous zone); Buzzetti, 140 F.3d at 143 (noting that, unlike the male breast, "public exposure of the female breast is rare under the conventions of our society, and almost invariably conveys sexual overtones"); cf. Virginia, 518 U.S. at 533 ("The two sexes are not fungible; a community made up exclusively of one sex is different from a community composed of both." (quotation and brackets omitted)).

         Nor do we find that the ordinance affects a fundamental right. See Eckl, 124 Cal.Rptr. at 695. Although freedom of speech is a fundamental right, see McGraw v. Exeter Region Coop. Sch. Dist., 145 N.H. 709, 713 (2001), "[b]eing in a state of nudity is not an inherently expressive condition," Erie v. Pap's A.M., 529 U.S. 277, 289 (2000). Even assuming without deciding that the defendants' nudity in this case was expressive, not every restriction of a right classified as fundamental incurs strict scrutiny. Bleiler, 155 N.H. at 697-98. For limitations upon a fundamental right to be subject to strict scrutiny, there must be an actual deprivation of the right. Lamarche, 158 N.H. at 204; see also Estate of Cargill, 119 N.H. at 667. For the reasons discussed in Part III, infra, there was no such deprivation here. Similarly, intermediate scrutiny does not apply because the ordinance does not involve an important substantive right. Cf. LeClair, 137 N.H. at 222-23. Hence, rational basis is the appropriate standard of review for this ordinance.

         Applying the standard, we have little trouble concluding that the defendants have not carried the heavy burden of mounting a successful facial attack to an ordinance analyzed only for rationality. The stated purpose of the ordinance is to uphold and support "public health, public safety, morals and public order." Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-1 (1998). Under the terms of the ordinance, "[t]he conduct prohibited . . . is deemed to be contrary to the societal interest in order and morality." Id. Federal courts have found these to be important or substantial interests under intermediate scrutiny, let alone legitimate ones under rational basis review. See Tagami, 875 F.3d at 379-80 (finding the purposes of "promoting traditional moral norms and public order" to be "important enough to survive [intermediate] scrutiny"); Biocic, 928 F.2d at 115-16 (finding "important" the "government interest . . . [in] protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed" to parts of the body "that traditionally in this society have been regarded as erogenous zones"); Craft, 683 F.Supp. at 299-300 (finding a sufficient state interest in "protect[ing] the public from invasions of its sensibilities"); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991). We likewise conclude that they are legitimate government interests. "The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals." Barnes, 501 U.S. at 569. Furthermore, the ordinance is rationally related to advancing those interests. See id. at 571-72; Craft, 683 F.Supp. at 300-01. For these reasons, we hold that the ordinance does not violate Part I, Article 2 of the New Hampshire Constitution.[3]

         The dissent faults us for seeking guidance from other courts in ascertaining whether Laconia's ordinance classifies based on gender. However, as demonstrated by the lack of any meaningful discussion of our precedent in the dissent, we have little in the way of help from our own cases in answering this question. Although we applied strict scrutiny to a gender-based classification in Holbrook, see Holbrook, 140 N.H. at 189-90, as already discussed, the law at issue in Holbrook did not impose requirements on both men and women. The dissent identifies no other instance, nor are we aware of any, in which we have concluded that a law challenged on equal protection grounds contained a gender-based classification and therefore was subject to strict scrutiny. But cf. In re Certain Scholarship Funds, 133 N.H. 227, 231 (1990) (concluding that the "State's participation in the administration of" certain scholarships established by trust but expressly limited to one gender "cannot even withstand the lowest level of judicial scrutiny," and thus declining to "determine what level of review should be employed in cases of gender . . . discrimination" under Part I, Article 2). Thus, our prior cases are not helpful in analyzing whether Laconia's ordinance is gender-based. In other words, to the extent the dissent ...

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