By MIKE MORTENSEN, LACONIA DAILY SUN
In the new year the state's highest court is expected to decide whether women baring their breasts in public should be allowed as a matter of gender equality or if it is an act that is such an affront to public sensibilities that it can be illegal.
The five justices will be hearing oral arguments on whether Heidi C. Lilley of Gilford, Ginger M. Pierro of Canaan, and Kia Sinclair of Danbury broke the law when they appeared topless at Weirs Beach on Memorial Day Weekend of 2016 in a demonstration of the Free the Nipple movement. The three were cited for violating Laconia's public indecency ordinance, and in November 2017 a circuit court judge upheld the city ordinance and ruled against dismissing the citations against the three women.
Lilley, Pierro and Sinclair appealed the ruling to the Supreme Court which had been scheduled to hold oral arguments next Thursday, Jan. 4. But just before Christmas, the court issued an order postponing the proceedings until an unspecified later date.
The three women maintain that any law that prohibits women from exposing their breasts in public violates their constitutional rights, while the state argues that laws such as Laconia's public indecency ordinance are a legitimate exercise of government's right to safeguard good order.
Attorney Dan Hynes, who is representing the appellants, argues in his brief filed with the court that no law prohibiting women from showing their breasts or nipples in public can pass constitutional muster because men are legally allowed to do the same thing. He states that a law that pertains only to women "fosters harmful and divisive gender stereotypes without any compelling justification [for doing so]."
He said the state's argument for banning bare female breasts boils down to "there are real differences between male and female breasts [only] because the state and society's morals say so." Hynes further maintains that the state's citing tradition only "perpetuates the social inferiority of women by removing their option to choose what any man is allowed to do."
The state Attorney General's Office, which is acting as the respondent in the appeal, argues that laws requiring women to cover their breasts in public are appropriate because "females baring their breasts in public is still seen by society as unacceptable."
But the New Hampshire Civil Liberties Union which has filed a friend-of-the-court brief on behalf of the appellants, says that the state's position amounts to an arbitrary application of the law. It says the state is arguing the "female breast is a sex object because [the state] says so" without offering any compelling argument to support that position.
Senior Assistant Attorney General Susan McGinnis states in the brief that the court should let ordinances such as Laconia's stand because "protection of public sensibilities is an important government interest," and that there is "an indisputable difference between sexes."