Wednesday, August 14, 2019

New Hampshire v. Lilley: Will the Supreme Court "Free the Nipple"?

Scotusblog has highlighted the cert. petition in New Hampshire v. Lilley, in which the New Hampshire Supreme Court held that a city ordinance prohibiting women from exposing their nipples in public is constitutional. Although other courts had rejected similar claims, the New Hampshire Supreme Court reached the odd conclusion that the ordinance is not sex-based even though it only requires women to cover their nipples. In the court's view, the differential treatment is not sex-based because it reflects the common understanding that only women are perceived as nude if they uncover their breasts. This is nonsense. If the definition of nudity in the ordinance is grounded in a sex-based perception of nudity, then the ordinance is also sex-based.

Of course, whether such a sex-based distinction is permissible is a different matter, but it's much more likely to be unconstitutional if it is sex-based. The Tenth Circuit came out on the other side, so now is the time for the Supreme Court to step in.

For more on this issue, check out my earlier post on Free the Nipple v. City of Springfield.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.