NJ Appeals Court: Legal “Gender” Determines Obscenity
September 16, 2011
NJ appeals court affirmed yesterday that the government has a “moral” interest in enforcing unequal laws based on sex. In short: Male bodies are fine, Female bodies are obscene and must stay covered. Male chests are respectable, Female chests are pornographic. Male breasts = Moobs. Female breasts = Illegal Dirty Pillows.
Phoenix Feeley, a women’s rights advocate and (literal) fire-breathing performance artist and circus performer lost the appeal yesterday in her ongoing battle against charges incurred in 2008 when she was arrested –twice in one day- for removing her top on the beach like a male.
From the appeal decision:
The facts are essentially uncontested. On June 28, 2008, defendant removed the top of her bathing suit while sitting on the public beach in Spring Lake. Police officer Robert Zoino approached and asked that she put her top back on. When defendant refused, Zoino arrested her and brought her to police headquarters.
After being processed and supplied with a tee shirt by the police, defendant was released. However, shortly thereafter, Zoino and another officer responded to a call of a topless woman at a street intersection near police headquarters. Defendant was again arrested and issued additional summonses. Police officer Michael Rutka found the tee shirt supplied to defendant hanging from the entrance door of the police department.
Before the municipal court judge, and again on appeal to the Law Division, defendant did not challenge these proofs.2 Instead, she argued, among other things, that application of the public nudity ordinance under the facts presented violated defendant’s rights to equal protection under the fourteenth Amendment to the United States Constitution. Specifically, defendant contended that men were permitted to appear topless on the public beach, but women were not. Both the municipal court judge, and the Law Division judge, rejected the argument.
In a thorough written opinion, the Law Division judge cited extensively to our decision in State v. Vogt, 341 N.J.Super. 407 (App. Div. 2001). Noting that “defendant . . . [may have] present[ed] compelling policy arguments in her brief,” the judge nonetheless concluded he was “bound by the holding of the appellate court because both the factual circumstances and the regulations in question in Vogt and in this case [we]re indistinguishable.” He found defendant guilty of two ordinance violations, imposed an aggregate fine of $750, and this appeal followed.
Defendant argues that we should depart from continued reliance upon our decision in Vogt because it “unjustifiably sanctions arrest and prosecution based on gender.” The argument lacks sufficient merit to warrant extended discussion in this opinion. R. 2:11-3(e)(2).
[I]t shall be unlawful for any person to appear or travel on any street, avenue or road, beach, waterway, alleyway, driveway or any area of private property open to public view in the Borough or appear in any other such place in the Borough in a state of nudity; in an indecent or lewd dress or garment; or make any indecent exposure of his or her person; or urinate in any of the above described places except in public restrooms.”
She was charged with two counts of Public Nudity, one count of Dressing and Undressing in Public, two counts of Disorderly Conduct (later dismissed) and one count of Obstruction.
According to her blog she was:
Feeley has been fighting for years against antiquated sex-based clothing laws that discriminate against women, and has put her safety and freedom on the line to do so. In 2005 she was wrongfully arrested and detained in Manhattan for walking down the street bare-chested, even though New York City had repealed its discriminatory sex-based clothing laws in 1992. She won a $29,000 settlement for that illegal arrest.
From yesterday’s NJ appeals court decision:
“In Vogt, supra, 341 N.J. Super. at 416-17, we concluded that “there [wa]s no constitutional right for a woman to appear topless on a public beach,” and “[r]estrictions on the exposure of the female breast are supported by the important governmental interest in safeguarding the public’s moral sensibilities, and th[e] ordinance [wa]s substantially related to that interest.” Id. at 417. We further noted that distinctions based upon gender must satisfy an “`intermediate’ level of scrutiny,” i.e., “the distinction must be justified by an important governmental interest that is substantially accomplished by the challenged discriminatory means.” Id. at 417-18 (citations omitted). “The burden of justifying the classification is on the state, which must show that the claimed justification is `exceedingly persuasive.'” Id. at 418 (quoting United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 2275, 135 L. Ed. 2d 735, 751 (1996)). We determined that “the ordinance satisfie[d] both the federal and state tests for equal protection.” Id. at 417.
Defendant has presented no principled reason for us to depart from our holding in Vogt. We therefore affirm.”
(All Bolding mine.) In other words, women’s legal rights to equality are based on safeguarding arbitrary cultural sex discrimination traditions. The court’s obligation is to uphold sex-based social customs, even if discriminatory against females.