Eline v. Town of Ocean City

7 F.4th 214

Chelsea C. ELINE; Megan A. Bryant; Rose R. MacGregor; Christine E. Coleman ; Angela A. Urban, Plaintiffs - Appellants,

v. TOWN OF OCEAN CITY, MARYLAND, Defendant - Appellee,andRichard W. Meehan; Joseph J. Theobald; Ross C. Buzzuro, Defendants.

No. 20-1530

United States Court of Appeals, Fourth Circuit.

Argued: May 5, 2021

Decided: August 4, 2021

Devon M. Jacob, JACOB LITIGATION, INC., Mechanicsburg, Pennsylvania, for Appellants. Bruce Frederick Bright, AYRES, JENKINS, GORDY & ALMAND, P.A., Ocean City, Maryland, for Appellee.

Before GREGORY, Chief Judge, KEENAN, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Keenan joined. Chief Judge Gregory wrote a separate opinion concurring in the judgment.

QUATTLEBAUM, Circuit Judge:

In response to inquiries about topless sunbathing on its beaches, the Town of Ocean City, Maryland, passed an ordinance prohibiting public nudity. While the ordinance restricts both men and women from showing certain body parts in public, it prohibits only women from publicly showing their bare breasts. Plaintiffs, five women who seek "to be bare-chested in public in the same locations where it is lawful for men to be bare-chested," sued Ocean City to enjoin the ordinance, claiming it unconstitutionally discriminated against women. See J.A. 91a–95a. The gist of Plaintiffs’ argument was that the gender classification in the ordinance could not withstand the heightened scrutiny required by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The district court disagreed and granted Ocean City's Motion for Summary Judgment. We agree with the district court that Ocean City has established that prohibiting females from publicly showing their bare breasts is substantially related to an important government interest—protecting public sensibilities—and satisfies the heightened scrutiny of the Equal Protection Clause. For those reasons, and as explained below, we affirm.

I.

Ocean City is a beach town "located on a barrier island 8.4 miles long in Worcester County, Maryland and was originally founded as a fishing village in 1875." J.A. 358a. Ocean City currently has over 7,000 residents, with a median age around 54 years old. Despite its small population, Ocean City is a frequent tourist location, with over 300,000 vacationers per weekend during the busy summer months and 200,000 vacationers per weekend during the off-season months. "Ocean City has long been identified and considered by its visitors and residents, and has identified itself, as a family-friendly resort catering to visitors of all ages and providing a family-friendly environment." J.A. 609a.

On August 17, 2016, Plaintiff Chelsea Eline contacted the Ocean City Police Department and the Worcester County State's Attorney "regarding her stated intention to go ‘topless’ in Ocean City[,] including on its beaches." J.A. 607a. "Eline took the position ... that she had a constitutionally-protected right to be topless (i.e., expose her breasts) in public, including in Ocean City and on its beaches." J.A. 608a. As a result of her inquiry, the possibility of Ocean City becoming a topless beach "became a matter of great public attention and concern ...." J.A. 608a. Mayor Richard W. Meehan and members of the Ocean City Council "received many emails and phone calls from Ocean City residents and vacationers expressing great concern about the possibility that Ocean City beaches would become topless beaches." J.A. 608a (internal quotation marks omitted). Due to the large number of inquiries government officials received on the issue, Ocean City posted an announcement on its website titled "Ocean City Is Not a Topless Beach & Will Not Become A Topless Beach." J.A. 612a.

The Ocean City Council then held a special meeting to consider the first reading of a proposed ordinance to regulate public nudity—Ordinance 2017-10 ("the Ordinance"). The Ordinance defines nudity as follows:

(a) Nude, or a State of Nudity means the showing of the human male or female genitals, pubic area, vulva, anus, or anal cleft with less than a full opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.

J.A. 46a. The Ordinance also recognizes that "[p]rotecting the public sensibilities is an important governmental interest" and contains a legislative finding that "a prohibition against females baring their breasts in public, although not offensive to everyone, is still seen by society as unpalatable." J.A. 45a.

At the meeting, the Ordinance was read, and the floor was opened to the public. Only one member in the audience—a 70-year-old Ocean City resident—spoke. She expressed support for the Ordinance. City Council then passed the Ordinance on first reading unanimously. Following that vote, a Council member moved to immediately enact the Ordinance on an emergency basis. That motion passed unanimously as well. After that, Mayor Meehan approved the passage of the Ordinance as an emergency ordinance.

Plaintiffs¹ sued Mayor Meehan and several other city officials² in the United States District Court for the District of Maryland, alleging a 42 U.S.C. § 1983 claim for violation of their equal protection rights.³ Plaintiffs sought a declaration that the Ordinance violates the Equal Protection Clause and a preliminary and permanent injunction precluding Ocean City from enforcing the Ordinance.

Later, after Plaintiffs moved for a preliminary injunction, the parties presented evidence at a hearing on the motion. None of the Plaintiffs testified. Instead, they presented their proposed expert witness, Dr. Debby Herbenick, who had produced two expert reports. Dr. Herbenick's initial report acknowledges that the Ordinance contains language indicating that it was enacted for the protection of the public sensibilities. Despite that, she offered four opinions that conflict with the Ocean City Council's legislative findings:

(1) the ordinance fails to acknowledge important similarities between female and male breasts,

(2) the ordinance overstates differences between female and male breasts.

(3) the notion that females baring their breasts in public "is still seen by society as unpalatable," is not supported by peer-reviewed scientific research.

(4) peer-reviewed scientific research supports the conclusion that by not treating females and males equally in regard to their ability to appear barechested may contribute to harmful secondary effects, such as discouraging breastfeeding and promoting a culture that over-sexualizes girls and women; thus harming and not protecting the public.

J.A. 1260a. Dr. Herbenick's supplemental expert report indicated that she "systematically reviewed more than one thousand historical and contemporary photographs from Ocean City, Maryland." J.A. 1268a. Based upon this review, Dr. Herbenick opined "that public sensibilities have evolved rapidly over the decades regarding what males and females wear on or near the Ocean City beaches. From the 1930s to 1960s and 1970s, there were considerable changes that resulted in men going from covering their chests to baring their chests, and from women wearing dresses and even stockings to wearing bikinis." J.A. 1268a. Additionally, the supplemental expert report stated that "Ocean City has seen the establishment of two Hooters locations, with quite a few photos of ‘Hooters girls’ posing with young boys." J.A. 1268. Moreover, 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." J.A. 1268a. At the hearing, Dr. Herbenick testified largely consistent with her reports.

Ocean City presented Mayor Richard Meehan, Council Member Mary P. Knight, and Melanie Pursel—the President and CEO of the Ocean City Chamber of Commerce. These witnesses all testified about communications they had received in support of the Ordinance.

The district court denied Plaintiffs’ motion. Noting the majority of cases that have upheld similar public nudity laws, the court found that it was bound by our decision in United States v. Biocic , 928 F.2d 112, 115–116 (4th Cir. 1991), which recognized that protecting the portion of society that disfavored public display of female breasts furthers an important governmental interest.⁴ The district court described the testimony from Ocean City's witnesses—Mayor Meehan, Council Member Knight and Ms. Pursel—which indicated that many Ocean City residents and vacationers had voiced strong opposition to allowing public nudity in Ocean City. It then noted that "Plaintiffs did not testify, choosing instead to rely upon an expert witness, [Dr.] Herbenick ...." J.A. 431a. The district court did not find Dr. Herbenick's opinion persuasive and, more importantly, concluded that it was "not strictly relevant to the issue at hand" because "[i]nstead of her testifying as to what Ocean City's citizens’ public sensibilities are , she testified as to what she thought they should be. " J.A. 432a. Accordingly, 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." J.A. 432a. It determined that "assessment of public sensibilities does not require precise scientific sampling," and found that Ocean City's witnesses were able to articulate the public sensibilities of the Ocean City community because—as elected officials—they are "accredited as accurate barometers of public sensibilities" and "can, and do, speak for the public." J.A. 432a. The court also relied on the information that Ocean City's witnesses provided about the support they received from the public about the ordinance. It concluded, therefore, that "Ocean City has shown its ordinance is...