Commentary

printed 05/07/2021

It’s been three years since Chelsea Eline and associates began pursuing Ocean City’s ban on topless sunbathing up the judicial food chain, with the latest round taking place in the U.S. Court of Appeals for the Fourth Circuit in Richmond.

In their appeal of a lower court ruling that didn’t go their way last year, Eline et al continue to assert that the constitutional guarantee of equal protection should be a one-size-fits all proposition.

And they’re right. In a perfect world, the constitution’s equal protection clause should mean that everyone, as in every single individual, is to be treated exactly the same under the law.

That said, if it’s legal for men to go on the beach without tops, women should enjoy that same right, or privilege. Otherwise, it’s gender-based discrimination.

If only the world was that simple and everyone thought and behaved the same way. They don’t, and they’re not likely to — ever, which is why our laws are shot through with exceptions that may seem contradictory, but in fact reflect the need to accommodate as many points of view as possible without dipping into the problems of minority rule.

In this instance, most people accept, fairly or not, that taking their kids to a beach populated by bare-breasted women is not something they want to do. The question then becomes, what about their rights not to see that if that’s their choice?

Eline and others can argue that the people who are concerned about that sort of thing need to get over it, but it remains that wanting people to do something is much easier than forcing them to do it.

Ocean City’s ban on beach-side toplessness will probably survive the appeals process intact, and it’s because it’s the common sense thing to do.

There probably will come a time many decades from now when dropping the top is no big deal, but then, human nature being what it is, we’ll argue over what to do with those bathing suit bottoms.

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