(Aug. 3, 2018) The way Ocean City government’s attorneys see it, if other county and municipal governments can regulate public nudity and topless nightclubs without violating the U.S. Constitution’s equal protection clause, the resort can do the same with topless sunbathing on the beach.
That, they argued in the federal lawsuit brought against the city in January by Chelsea C. Eline of Salisbury and four other women, is why Maryland District Court Chief Judge James K. Brednar should deny the plaintiffs’ request for a preliminary injunction that would suspend the enforcement of the resort’s anti-nudity ordinance.
In an afternoon filing last Friday, attorney Bruce Bright wrote, “The party seeking a preliminary injunction must demonstrate by a clear showing that, among the other required elements, it/he/she is likely to succeed on the merits at trial.”
Citing a long list of court rulings in Maryland and elsewhere that upheld government prohibitions of public nudity, Bright argued that Eline and her co-plaintiffs are unlikely to prevail in this case.
Among the cases he referenced was a Maryland U.S. District Court decision in 2016 that affirmed Prince George’s County’s right to restrict where adult clubs could locate.
Eline, along with Megan A. Bryant of Lothian, Maryland, Rose R. Macgregor of Salisbury, Christine E. Coleman of Long Island City, New York, and Angela A. Urban of Pittsburgh, filed their discrimination lawsuit in January and petitioned for the preliminary injunction at the end of June.
The injunction would, if granted, lift the topless ban until the court issues a final determination in the case.
Their contention is that Ocean City’s ordinance banning public nudity violates the constitution’s equal protection clause, since men don’t have to cover their chests, but women do.
This constitutes a gender bias, their lawyer, Devon M. Jacob of Mechanicsburg, Pennsylvania, argued, and goes up against the 14th Amendment’s provision that government cannot deny a person’s basic rights, while others are not subject to the same restrictions.
Further, Devon contended, the resort’s ordinance perpetuates “longstanding discriminatory and sexist ideology in which women are viewed as inherently sexual objects without the (right) to decide when they are sexual and when they are not.”
In his response, however, Bright pointed to a previous topless scandal in the area, when the Fourth Circuit Court of Appeals in Richmond upheld the conviction (and $25 fine) of a woman who had been charged with sunbathing sans bathing suit top on Assateague in 1989.
Although defendant Jeanne Biocic made the same equal protection argument then that Eline does now, the court ruled, “The important government interest is the widely recognized one of protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens' anatomies that traditionally in this society have been regarded as erogenous zones. These still include (whether justifiably or not in the eyes of all) the female, but not the male, breast.”
Eline, a “Top Freedom” activist who was known as Chelsea Covington two years ago, set the wheels of the case motion in August 2016, when she advised the Ocean City Police Department and the Worcester County State’s Attorney of her intention to go topless on the beach.
Ocean City had nothing on the books that specifically banned toplessness and then-State’s Attorney Beau Oglesby (now a Worcester County Circuit Court judge) sought the advice of the Maryland Attorney General.
In the meantime, a policy memo sent to the Ocean City Beach Patrol advising guards to leave the issue of bare-topped female sunbathing to the police department was leaked to social media.
That led to coast-to-coast news coverage, with many people misconstruing the memo to mean that Ocean City was about to allow semi-nude women on the beach.
City officials scrambled to refute that misconception, with Mayor Rick Meehan declaring that Ocean City is not and would never be a topless beach.
“Ocean City is a family resort, and we intend to do whatever is within our ability to also protect the rights of those families that visit us each year,” Meehan said at the time.
The council followed up its intentions on June 10 last year by passing an emergency ordinance that prohibited the practice. Four days later, the attorney general’s office told the mayor and council in a letter of advice that the city appeared to be on solid legal ground were a challenge to be made to the Maryland Court of Appeals.
Barring something unusual arising out of the judge’s response to this summer’s motions concerning injunctive relief, the case is scheduled to go to trial at the end of the year.