Argued: February 1, 2018
Circuit Court-Laconia District Division
J. MacDonald, attorney general (Susan P. McGinnis, senior
assistant attorney general, on the brief and orally), for the
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.
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.
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."
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."
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).
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
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."
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.
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
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).
begin by addressing the scope of the defendants'
challenge to the ordinance. An appellant may challenge the
constitutionality of a statute or an ordinance 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.
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.
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
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.
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.
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
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. 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).
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.
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.
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.").
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)).
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
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
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 ...