On February 15, 2019, the 10th U.S. Circuit Court of Appeals issued an opinion that gives a clear picture of the constitutionally required degeneracy that lies ahead if two U.S. Supreme Court decisions from the past are not dealt with soon and decisively. If you have young children or grandchildren, you better read what follows.
On that day, the appellate court issued an opinion upholding a federal district court’s temporary injunction enjoining enforcement of an ordinance adopted by the city of Fort Collins, Col., that banned women from exposing their nipples in public. The ordinance did not apply to men.
An organization named Free The Nipple-Ft. Collins was formed, and it then sued to have the ordinance enjoined as a violation of the equal protection provisions of the 14th Amendment.
A Justice That’s Literally Blind to the Obvious
The appellate court upheld the temporary injunction because the ordinance’s distinction between a man’s chest and a woman’s breasts was based on a “sex-object stereotype of women’s breasts.” Really? Are they saying that Playboy magazine and its ilk created from nothing that kind of stereotype in the human mind and injected it into the relations between men and women?
I guess so, because the Court then said:
that stereotype doesn’t stand up to scrutiny. Cf. People v. Santorelli, 600 N.E.2d 232, 236 (N.Y. 1992) (Titone, J., concurring) (‘One of the most important purposes to be served by the Equal Protection Clause is to ensure that ‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government.’); accord Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015); see also Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 850 (1992) (‘Our obligation is to define the liberty of all, not to mandate our own moral code.’).
Notice the two U.S. Supreme Court cases that the 10th Circuit understood to support its decision that women are constitutionally allowed to go topless in public if men are allowed to go topless: its decision telling states they can no longer enact statutes that define marriage in regard to the sex binary of male and female (Obergefell) and abortion (Casey).
What possible connection is there between abortion and marriage and constitutionally prohibiting women from going topless at the county recreation center’s swimming pool while young boys are around? (Yes, “recreation centers” were included under the now non-enforceable ban on female toplessness.)
The answer: The U.S. Supreme Court has redefined under the Constitution what it means to be human (abortion) and that logically opens the door to redefining what it means to be male and female (marriage without regard to the two sexes) for the purpose of civil laws.
‘Fleshing’ Out the Logical Progression to ‘Free the Nipple’
In Roe v. Wade, the predecessor to the Casey decision, the U.S. Supreme Court denied that a person for constitutional purposes existed in the womb, that even there the child bore the indelible image of God, and that the child was biologically distinct even from the mothers. It substituted for those truths a lie, creating a false boundary between two distinct human beings based on their differing levels of development or their physical location, giving the one the right to kill the other.
This blurring of what it means to be human and a person was necessary in order to advance an ethic of sexual liberty, to break the perceived slavish chains between sex and marriage.
Not surprisingly, the next step in the evolution of that liberty had to be the denial of the distinction and boundary between male and female, which is what Obergefell did in redefining marriage as part of the “liberty” provided by the 14th Amendment’s Due Process clause.
But think about that for a moment. If the very essence and meaning of a marital relationship is rooted in the complementariness of the two different biological sexes—male and female—then it would have been impossible for the Court to think that two people of the same sex could be married and have the same kind of relationship as that of a man and a woman. Thus, there could be no violation of equal protection under the law.
So, for those two biologically different relationship pairings to be the same, then the two biological sexes and their readily perceived complementariness had to become constitutionally meaningless and irrelevant. A belief that the two sexes are distinct and complementary is, in the 10th Circuit’s words, the “prejudice” and “unexamined stereotype” that Obergefell jettisoned.
Consequently, if we’re androgynous in the eyes of the law for the purpose of the one societal institution in which male and female was fundamental to its meaning and purpose, then how can we not be androgynous when it comes to a law prohibiting only women from going topless?
People and legislators who think Casey and Obergefell were only about abortion and who can get married need to think again. If they don’t, they may not like what they see going on around them in a few years. But by then, absent a constitutional amendment, they will not be able to do anything about it.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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