November 2021 - Parks & Recreation - 30

LAW REVIEW
she indicated " recent decades have
seen women in Ocean City wearing
thong or G-string bikini bottoms,
and even 'pasties' that cover
just the nipples during 'Best Body'
competitions. "
At the preliminary injunction hearing,
Dr. Herbenick's testimony was
largely consistent with her reports.
At the hearing, Ocean City presented
Mayor Richard Meehan, Council
Member Mary P. Knight and Melanie
Pursel, president and CEO of the
Ocean City Chamber of Commerce.
These witnesses all testified about
communications they had received
in support of the Ordinance.
On appeal, Plaintiffs reiterated
their claim that " the Ordinance
is unconstitutional under the
Equal Protection Clause of the
United States Constitution. "
The district court denied Plaintiffs'
motion for summary judgment.
In so doing, the court noted
that " the majority of cases that have
upheld similar public nudity laws "
have " recognized that protecting the
portion of society that disfavored
public display of female breasts furthers
an important governmental
interest. " In this particular instance,
the district court cited the testimony
of " many Ocean City residents and
vacationers, " which " voiced strong
opposition to allowing public nudity
in Ocean City. " On the other hand,
the district court noted " Plaintiffs
did not testify, choosing instead to
rely upon an expert witness, Dr.
Herbenick. "
The district court did not find
Dr. Herbenick's opinion persuasive.
30 Parks & Recreation | NOVEMBER 2 0 2 1
According to the court, Dr. Herbenick's
opinion was " not strictly relevant
to the issue at hand " because
" instead of her testifying as to what
Ocean City's citizens' public sensibilities
are, she testified as to what
she thought they should be. " As a
result, the district court concluded
that " Plaintiffs did not muster any
evidence to show that Ocean City's
citizens shared their view that women
should be able to be bare-chested
in public places as men are. "
Moreover, the federal district
court determined that " assessment
of public sensibilities does not require
precise scientific sampling. "
On the contrary, the court found
" witnesses were able to articulate
the public sensibilities of the
Ocean City community. " In particular,
the court relied on the information
that Ocean City's witnesses
provided about the support they
received from the public about the
Ordinance. According to the court,
Ocean City's elected officials are
" accredited as accurate barometers
of public sensibilities " who " can,
and do, speak for the public. " As
a result, the federal district court
concluded " Ocean City has shown
its Ordinance is substantially related
to an important government
objective, the protection of public
sensibilities. "
The federal district court, therefore,
granted Ocean City's motion
for summary judgment. Plaintiffs
appealed. On appeal, Plaintiffs reiterated
their claim that " the Ordinance
is unconstitutional under
the Equal Protection Clause of the
United States Constitution. "
Gender Classification
Equal Protection
As cited by the federal appeals
| PARK S ANDRECRE AT ION . OR G
court:
" The
Equal
Protection
Clause of the United States Constitution
provides that: 'No State
shall deny to any person within its
jurisdiction the equal protection
of the laws.' " U.S. Const. amend.
XIV, § 1. Further, the court noted
" the burden of justification is demanding
and it rests entirely on
the State " when " a law containing
a gender-based classification
is challenged under the Equal Protection
Clause. " In reviewing the
challenged law, the court would
examine " differential treatment "
to determine " whether the proffered
justification
persuasive " :
is exceedingly
The defender of legislation that
differentiates on the basis of gender
must show at least that the
challenged classification serves
important governmental objectives
and that the discriminatory
means employed are substantially
related to the achievement of
those objectives.
On the other hand, the federal
district court acknowledged: " the
Supreme
Court
has
recognized
that new insights and societal understandings
can reveal unjustified
inequality within our most fundamental
institutions that once passed
unnoticed and unchallenged. " As a
result, the court found a challenged
gender classification must meet a
" heightened standard " of judicial
review to ensure the governmental
justification does " not rely on
overbroad generalizations
about
the different talents, capacities, or
preferences of males and females. "
Moreover, the governmental justification
for a gender-based classification
must be " genuine, not hypothesized
or invented post hoc in
response to litigation. "
November 2021 - Parks & Recreation

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