New Hampshire’s highest court upholds arrests in topless case 

  • FILE - In this Aug. 26, 2017 file photo, women go topless as they participate in the Free the Nipple global movement during Go Topless Day at Hampton Beach, N.H. New Hampshire's highest court is set to rule Friday, Feb. 8, 2019, on the case of three women who were arrested for going topless as part of the Free the Nipple campaign on a New Hampshire beach in 2016. A lawyer for the women argued in court that the law is discriminatory and unconstitutional. (Ioanna Raptis/Portsmouth Herald via AP, File) Ioanna Raptis

  • Heidi Lilley wonders, all the fuss about the human nipple? A nipple, after all, is just a nipple. GEOFF FORESTER

  • A portrait of Heidi Lilley near the spot where she was arrested last Monday by the Laconian poliec. Lilley was cuffed by Laconia police earlier this week for taking her top off at Weirs Beach. She was escorted into the back of a police cruiser, treated like a criminal, her mug shot taken at headquarters. She’s facing a 250 fine. GEOFF FORESTER

By MICHAEL CASEY
Published: 2/8/2019 9:34:49 AM

New Hampshire's highest court on Friday upheld the conviction of three women who were arrested for going topless on a beach, finding their constitutional rights were not violated.

In a 3-2 ruling Friday, the court decided that Laconia's ordinance does not discriminate on the basis of gender or violate the women's right to free speech. In a dissenting opinion, Associate Justice James P. Bassett with Senior Associate Justice Gary E. Hicks concluded the ordinance was unconstitutional because it treats men and women differently.

Heidi Lilley, Kia Sinclair and Ginger Pierro are part of the Free the Nipple campaign — a global campaign advocating for the rights of women to go topless. They were arrested in 2016 after removing their tops at beaches in Laconia and refusing to put them on when beachgoers complained. Pierro was doing yoga, while the two others were sunbathing.

The Laconia law on indecent exposure bans sex and nudity in public but singles out women by prohibiting the "showing of female breast with less than a fully opaque covering of any part of the nipple." A lower court judge refused to dismiss the case, and the women appealed to the state Supreme Court.

“We agree with the trial court that the ordinance merely prohibits those who access public places from doing so in the nude, and makes a permissible distinction between the areas of the body that must be covered by each gender,” wrote the court’s only female justice Anna Barbara Hantz Marconi for the majority opinion.

The women, through their lawyer, expressed their dismay.

"We are extremely disappointed in the Court's ruling that treating women differently than men does not amount to sex discrimination. The court has effectively condoned making it a crime to be female," the women's lawyer, Dan Hynes, said in a statement. "Since the N.H. Constitution, which prohibits sex discrimination, was not enough to prevent this unequal, and unfair treatment, we are hopeful the New Hampshire legislature steps up to correct this injustice by outlawing Laconia's ordinance."

Hynes said he would have to talk to the women about their next step, including possibly appealing the ruling to the U.S. Supreme Court.

Gilles Bissonnette, the legal director at the ACLU of New Hampshire, which filed an amicus brief in the case, said he was disappointed with the ruling.

"Unlike the Federal Constitution and the cases interpreting its equal protection provision cited by the majority, the New Hampshire Constitution provides even broader protections against gender discrimination," Bissonnette said in a statement. "What is deeply concerning about this decision is that it undermines these broader, unique constitutional protections and, in so doing, minimizes the importance of the New Hampshire Constitution."

The attorney general's office, which defended the ordinance in court, said it would have no comment beyond the brief it submitted. It had argued the city was trying to avoid a public disturbance resulting from bare-breasted women on the beach and that it narrowly tailored the law to requiring only the covering of nipples — not requiring women to wear shirts. It questioned the First Amendment argument

The ruling is the latest setback for the movement, which has had mixed success fighting similar ordinances in other parts of the country.

A federal judge ruled in October 2017 that a public indecency law in Missouri didn't violate the state constitution by allowing men, but not women, to show their nipples. In 2013, a public nudity ban in San Francisco was also upheld by a federal court. But in February 2017, a federal judge blocked the city of Fort Collins, Colorado, from enforcing a law against women going topless, arguing it was based on gender discrimination.




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