State v. Heidi C. Lilley The State of New Hampshire Kia Sinclair The State of New Hampshire v. Ginger M. Pierro

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
4th Circuit Court-Laconia District Division
No. 2017-0116
THE STATE OF NEW HAMPSHIRE
v.
HEIDI C. LILLEY
THE STATE OF NEW HAMPSHIRE
v.
KIA SINCLAIR
THE STATE OF NEW HAMPSHIRE
v.
GINGER M. PIERRO
Argued: February 1, 2018
Opinion Issued: February 8, 2019
Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior
assistant attorney general, on the brief and orally), for the State.
Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally),
for the defendants.
American Civil Liberties Union of New Hampshire, of Concord (Gilles R.
Bissonnette on the brief), as amicus curiae.
HANTZ MARCONI, J. The defendants, Heidi Lilley, Kia Sinclair, and
Ginger Pierro, appeal a ruling of the Circuit Court (Carroll, J.) that they
violated a City of Laconia ordinance prohibiting them from appearing in a state
of nudity in a public place. See Laconia, N.H., Code of Ordinances ch. 180, art.
I, § 180-2 (1998). We affirm.
I. Background
The following facts are drawn from the trial court’s order on the
defendants’ motion to dismiss or are otherwise supported by the record. On
May 28, 2016, Pierro went to Endicott Park Beach in Laconia. At the hearing
on the defendants’ motion to dismiss, Pierro testified that she “was topless”
and was there “to enjoy the beach.” She agreed with defense counsel that she
was “performing yoga on the beach.” She stated that she “was violently
harassed” by “[s]everal citizens,” but that “out of everybody on the beach, there
were only actually a handful that were upset.”
Sergeant Black of the Laconia Police Department testified that, on that
same day, he and Officer Callanan responded to the beach because the
department had “received several calls about a female . . . doing nude yoga.”
Callanan testified that they approached a woman, later identified as Pierro,
who was “not wearing any shirt and her breasts, as well as her nipples, were
both exposed.” Callanan stated that she “made attempts to speak to” Pierro,
but that Pierro “continued to do her yoga poses.” She explained that “after
about a minute or so, [Pierro] looked up and acknowledged that we were, in
fact, trying to speak to her.” She testified that they “explained to [Pierro] that
the reason [they] were making contact with her was in reference to a Laconia
City Ordinance, since her nipples were exposed on the beach in a public place.”
Callanan stated that they asked Pierro “multiple times to cover up, to put her
bathing suit top back on, or put her shirt back on,” but that Pierro “refused.”
Callanan testified that Pierro was arrested for violating Laconia City
Ordinance § 180-2 (the ordinance), which states, in relevant part, that “it shall
be unlawful for any person to knowingly or intentionally, in a public place: . . .
[a]ppear in a state of nudity.” “Nudity” is defined as “[t]he showing of the
human male or female genitals, pubic area or buttocks with less than a fully
opaque covering, or the showing of the female breast with less than a fully
opaque covering of any part of the nipple.” Laconia, N.H., Code of Ordinances
ch. 180, art. I, § 180-4 (1998).
In 2015, Sinclair became involved in the “Free the Nipple” movement.
Sinclair testified that she was one of the people who “started” the movement in
2
New Hampshire after having her son and realizing “that there was a very big
stigma on breastfeeding.” She explained that she believed that breasts,
specifically nipples, are “hypersexualize[d]” and “consider[ed] pornographic and
taboo,” which she stated results “in that stigma” and “contributes to the low
breastfeeding rates that the United States has compared to the rest of the
world.” Sinclair told Lilley about the movement, which Lilley then joined.
Lilley testified that she is “a feminist” and joined the movement because she
“believe[s] in the equality of the male and female.”
On May 31, 2016, Sinclair and Lilley went topless to Weirs Beach in
Laconia. While at the beach, they were arrested for violating the ordinance.
Sinclair testified that she “purposely engaged in civil disobedience knowing that
the City of Laconia has an ordinance against the exposure of the female nipple
and areola.” She stated that she was “protesting [Pierro’s] case where she had
been arrested a few days prior.” Lilley testified that she was also protesting
Pierro’s arrest and that she “announced to the arresting police officer that [she]
was acting in a protest and that [she] did not believe that [she] could be
arrested for protesting.” She further agreed with the prosecutor that, on that
day, she “chose to take it upon [herself] to violate the ordinance to give
attention to [her] cause.”
The defendants jointly moved to dismiss the charges against them. They
argued that the ordinance violates the guarantee of equal protection and their
right to free speech under the State and Federal Constitutions. They further
contended that the City of Laconia lacked the authority to enact the ordinance
and that the ordinance was preempted by RSA 645:1 (2016). Finally, the
defendants maintained that the ordinance violates RSA chapter 354-A. See
RSA ch. 354-A (2009 & Supp. 2017) (amended 2018). The State objected.
Following a hearing, the court denied the defendants’ motion. The court
subsequently found the defendants guilty of violating the ordinance. This
appeal followed.
On appeal, the defendants argue that the trial court erred by denying
their motion to dismiss because the ordinance: (1) violates their right to equal
protection under the State and Federal Constitutions; (2) violates their rights to
free speech and expression under the State and Federal Constitutions; (3) does
not fall within the regulatory authority granted to the City of Laconia by the
legislature; (4) is preempted by RSA 645:1; and (5) violates RSA chapter 354-A.
We will address each of the defendants’ arguments in turn.
II. Equal Protection
The defendants first argue that the ordinance violates their right to equal
protection under Part I, Article 2 of the New Hampshire Constitution and the
Fourteenth Amendment to the United States Constitution. See N.H. CONST.
pt. I, art. 2; U.S. CONST. amend. XIV. We review the constitutionality of local
3
ordinances de novo. McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154
N.H. 773, 777 (2007). We first address the defendants’ arguments under the
State Constitution and cite federal opinions for guidance only. State v. Ball,
124 N.H. 226, 231-33 (1983).
We begin by addressing the scope of the defendants’ challenge to the
ordinance. An appellant may challenge the constitutionality of a statute or an
ordinance1 by asserting a facial challenge, an as-applied challenge, or both.
See State v. Hollenbeck, 164 N.H. 154, 158 (2012). A facial challenge is a
head-on attack of a legislative judgment, an assertion that the challenged
statute violates the Constitution in all, or virtually all, of its applications. Id.To prevail on a facial challenge, the challenger must establish that no set of
circumstances exist under which the challenged statute or ordinance would be
valid. Id. On the other hand, an as-applied challenge concedes that the
statute may be constitutional in many of its applications, but contends that it
is not so under the particular circumstances of the case. Id.Here, the defendants do not concede that the relevant portion of the
ordinance is constitutional in any circumstance. They argue that “the
ordinance makes a gender-based classification on its face.” We construe their
claim to be a facial challenge to the portion of the ordinance that prohibits “the
showing of the female breast with less than a fully opaque covering of any part
of the nipple” in a public place. See Laconia, N.H., Code of Ordinances ch.
180, art. I, §§ 180-2, 180-4. Thus, the defendants must demonstrate that
there is no set of circumstances under which this ordinance might be valid.
See Hollenbeck, 164 N.H. at 158.
Next, we must determine the appropriate standard of review to apply to
the ordinance. In re Sandra H., 150 N.H. 634, 637 (2004). We do this by
examining the purpose and scope of the State-created classification and the
individual rights affected. Id. Classifications based upon suspect classes are
subject to strict scrutiny: the government must show that the legislation is
necessary to achieve a compelling government interest and is narrowly tailored.
Cmty. Res. for Justice v. City of Manchester, 154 N.H. 748, 759 (2007).
Classifications which affect a fundamental right may be subject to strict
scrutiny depending on the nature of the right and the manner in which it is
affected. See Estate of Cargill v. City of Rochester, 119 N.H. 661, 667 (1979);
see also Bleiler v. Chief, Dover Police Dep’t, 155 N.H. 693, 697-98 (2007);
Lamarche v. McCarthy, 158 N.H. 197, 204 (2008). Below strict scrutiny is
intermediate scrutiny, which is triggered when the challenged classification
involves important substantive rights, Sandra H., 150 N.H. at 637-38, and
which requires the government to show that the challenged legislation is
substantially related to an important government interest. Cmty. Res., 154
1No party asserts that, for the purposes of considering their constitutional arguments, it makes
any difference that we are dealing with an ordinance rather than a statute.
4
N.H. at 762. Finally, absent a classification based upon suspect classes,
affecting fundamental rights, or involving important substantive rights, the
constitutional standard of review is that of rationality. Sandra H., 150 N.H. at
638; cf. Gonya v. Comm’r, N.H. Ins. Dept., 153 N.H. 521, 532-33 (2006). Our
rational basis test requires that legislation be rationally related to a legitimate
government interest. Boulders at Strafford v. Town of Strafford, 153 N.H. 633,
639 (2006). Under this test, the party challenging the statute or ordinance
must show that whatever classification is promulgated is arbitrary or without
some reasonable justification. Id. at 640.
The defendants argue that the ordinance discriminates on the basis of
gender and/or sex; thus, strict scrutiny is the appropriate standard of review.
The State counters that the ordinance only distinguishes between men and
women on the basis of their different physical characteristics; thus, the
rational basis test applies.
Under federal equal protection law, pursuant to the Fourteenth
Amendment, a classification based on gender triggers intermediate scrutiny.
United States v. Virginia, 518 U.S. 515, 532-33 (1996). Part I, Article 2 of the
New Hampshire Constitution states, however, “Equality of rights under the law
shall not be denied or abridged by this state on account of race, creed, color,
sex or national origin.” N.H. CONST. pt. I, art. 2. Thus, under the New
Hampshire Constitution, gender is a suspect class and classifications based
thereon trigger strict scrutiny. See Cheshire Medical Center v. Holbrook, 140
N.H. 187, 189 (1995); see also LeClair v. LeClair, 137 N.H. 213, 222 (1993)
(“We apply the strict scrutiny test . . . when the classification involves a suspect
class based on race, creed, color, gender, national origin, or legitimacy . . . .”
(quotation omitted)) (superseded by statute on other grounds). In Holbrook, we
applied strict scrutiny to the common law doctrine of necessaries, which made
husbands legally liable for essential goods or services provided to their wives by
third parties. Holbrook, 140 N.H. at 189-90. We concluded that there was no
compelling justification for the gender bias embodied in the traditional
necessaries doctrine. Id. at 189. However, Holbrook did not address the type
of legislation that is at issue here: a proscription that imposes requirements on
both men and women, but applies to women somewhat differently. Thus,
Holbrook, the only case in which we have applied strict scrutiny to a gender-
based classification, does not necessarily establish that the Laconia ordinance
triggers strict scrutiny.
Courts in other jurisdictions have generally upheld laws that prohibit
women but not men from exposing their breasts against equal protection
challenges. See generally Kimberly J. Winbush, Annotation, Regulation of
Exposure of Female, but not Male, Breasts, 67 A.L.R.5th 431 (1999) (collecting
cases). But see Free the Nipple Fort Collins v. City of Fort Collins, Colorado,
237 F. Supp. 3d 1126, 1133 (D. Colo. 2017) (concluding that equal protection
challenge to ordinance prohibiting women but not men from exposing their
5
breasts was likely to succeed on the merits). In so doing, however, they have
often left unclear the applicable standard of review. See Tolbert v. City of
Memphis, Tenn., 568 F. Supp. 1285, 1290 (W.D. Tenn. 1983); City of Jackson
v. Lakeland Lounge, 688 So. 2d 742, 751-52 (Miss. 1996); State v. Turner, 382
N.W.2d 252, 255-56 (Minn. Ct. App. 1986); Free the Nipple – Springfield
Residents Promoting Equality v. City of Springfield, Missouri, No. 15-3467-CV-
S-BP, 2017 WL 6815041, at *2-3 (W.D. Mo. Oct. 4, 2017). Some courts have
assumed without deciding that such laws are gender-based and thus trigger
intermediate scrutiny under the Federal Constitution, and then upheld them
on the grounds that the heightened requirements of intermediate scrutiny were
satisfied. See Ways v. City of Lincoln, 331 F.3d 596, 600 (8th Cir. 2003);
United States v. Biocic, 928 F.2d 112, 115 (4th Cir. 1991); J & B Soc. Club No.
1, Inc. v. City of Mobile, 966 F. Supp. 1131, 1139 (S.D. Ala. 1996). Others
have explicitly held that laws which prohibit women but not men from exposing
their breasts are gender-based and trigger intermediate scrutiny either under
federal equal protection law or an analogous state constitutional provision. See
Tagami v. City of Chicago, 875 F.3d 375, 380 (7th Cir. 2017), cert. denied, 138
S. Ct. 1577 (2018) (Federal Constitution); Buzzetti v. City of New York, 140
F.3d 134, 141-42 (2d Cir. 1998) (Federal Constitution); Craft v. Hodel, 683 F.
Supp. 289, 299 (D. Mass. 1988) (Federal Constitution); City of Tucson v. Wolfe,
917 P.2d 706, 707 (Ariz. Ct. App. 1995) (state constitution); Dydyn v.
Department of Liquor Control, 531 A.2d 170, 175 (Conn. App. Ct. 1987) (state
constitution). Still others appear to have concluded that such laws do not
trigger any form of heightened constitutional review. See Schleuter v. City of
Fort Worth, 947 S.W.2d 920, 925-26 (Tex. App. 1997) (state constitution); City
of Seattle v. Buchanan, 584 P.2d 918, 920-22 (Wash. 1978) (en banc) (state
constitution); Eckl v. Davis, 124 Cal. Rptr. 685, 695-96 (Ct. App. 1975); see
also Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256-57 (5th Cir. 1995).
Among states, like New Hampshire, that define gender as a suspect class
under their respective state constitutions, we are aware of none that apply
strict scrutiny to ordinances similar to Laconia’s.2 See Buchanan, 584 P.2d at
921; City of Albuquerque v. Sachs, 92 P.3d 24, 27, 29 (N.M. Ct. App. 2004).
Compare Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex. App. 1989)
(recognizing that sex is a suspect class under Texas Constitution), with
Schleuter, 947 S.W.2d at 925-26 (applying no heightened scrutiny to ordinance
that restricted locations of businesses featuring female topless dancers).
In Buchanan, for example, the Washington Supreme Court held that an
ordinance which prohibited both men and women from being nude in public,
but defined nudity for women to include exposure of the breast, “d[id] not . . .
impose unequal responsibilities on women” because the ordinance “applie[d]
alike to men and women, requiring both to cover those parts of their bodies
2Relatedly, we are aware of no court with precedent-setting authority that has held such an
ordinance unconstitutional. But cf. Free the Nipple Fort Collins, 237 F. Supp. 3d at 1133.
6
which are intimately associated with the procreation function.” Buchanan, 584
P.2d at 921. The court noted, “It is true that [the ordinance] requires the
draping of more parts of the female body than of the male, but only because
there are more parts of the female body intimately associated with the
procreative function. The fact that the ordinance takes account of this fact
does not render it discriminatory.” Id. at 922. Thus the ordinance did not
“classify . . . on the basis of sex.” Id. at 921.
The Eckl court reasoned similarly:
Nature, not the legislative body, created the distinction between
that portion of a woman’s body and that of a man’s torso. Unlike
the situation with respect to men, nudity in the case of women is
commonly understood to include the uncovering of the breasts.
Consequently, in proscribing nudity on the part of women it was
necessary to include express reference to that area of the body.
The classification is reasonable, not arbitrary, and rests upon a
ground of difference having a fair and substantial relation to the
object of the legislation, so that all persons similarly
circumstanced are treated alike.
Eckl, 124 Cal. Rptr. at 696.
While Washington and California appear to address these considerations
in the threshold analysis of the applicable standard of review, other courts that
apply intermediate scrutiny to these types of laws have upheld them based on
similar reasoning. See, e.g., Craft, 683 F. Supp. at 300 (quoting Eckl); see also
Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 468-69 (1981)
(plurality opinion) (“[T]his court has consistently upheld statutes where the
gender classification . . . realistically reflects the fact that the sexes are not
similarly situated in certain circumstances.”).
We conclude that the Laconia ordinance does not classify on the basis of
gender. The ordinance prohibits both men and women from being nude in a
public place. See Laconia, N.H., Code of Ordinances ch.180, art. 1, §§ 180-2,
180-4. “[T]he ordinance here does not prevent exposure by one sex only.”
Buchanan, 584 P.2d at 922. That the ordinance defines nudity to include
exposure of the female but not male breast does not mean that it classifies
based upon a suspect class. See id.; Gonya, 153 N.H. at 532. “Unlike the
situation with respect to men, nudity in the case of women is commonly
understood to include the uncovering of the breasts.” Eckl, 124 Cal. Rptr. at
696. The ordinance merely reflects the fact that men and women are not
fungible with respect to the traditional understanding of what constitutes
nudity. See id.; Sachs, 92 P.3d at 29; see also Biocic, 928 F.2d at 115-16(noting that female breasts have traditionally been regarded by society as an
erogenous zone); Buzzetti, 140 F.3d at 143 (noting that, unlike the male breast,
7
“public exposure of the female breast is rare under the conventions of our
society, and almost invariably conveys sexual overtones”); cf. Virginia, 518 U.S.
at 533 (“The two sexes are not fungible; a community made up exclusively of
one sex is different from a community composed of both.” (quotation and
brackets omitted)).
Nor do we find that the ordinance affects a fundamental right. See Eckl,
124 Cal. Rptr. at 695. Although freedom of speech is a fundamental right, see
McGraw v. Exeter Region Coop. Sch. Dist., 145 N.H. 709, 713 (2001), “[b]eing
in a state of nudity is not an inherently expressive condition,” Erie v. Pap’s
A.M., 529 U.S. 277, 289 (2000). Even assuming without deciding that the
defendants’ nudity in this case was expressive, not every restriction of a right
classified as fundamental incurs strict scrutiny. Bleiler, 155 N.H. at 697-98.
For limitations upon a fundamental right to be subject to strict scrutiny, there
must be an actual deprivation of the right. Lamarche, 158 N.H. at 204; see
also Estate of Cargill, 119 N.H. at 667. For the reasons discussed in Part III,
infra, there was no such deprivation here. Similarly, intermediate scrutiny
does not apply because the ordinance does not involve an important
substantive right. Cf. LeClair, 137 N.H. at 222-23. Hence, rational basis is the
appropriate standard of review for this ordinance.
Applying the standard, we have little trouble concluding that the
defendants have not carried the heavy burden of mounting a successful facial
attack to an ordinance analyzed only for rationality. The stated purpose of the
ordinance is to uphold and support “public health, public safety, morals and
public order.” Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-1
(1998). Under the terms of the ordinance, “[t]he conduct prohibited . . . is
deemed to be contrary to the societal interest in order and morality.” Id.
Federal courts have found these to be important or substantial interests under
intermediate scrutiny, let alone legitimate ones under rational basis review.
See Tagami, 875 F.3d at 379-80 (finding the purposes of “promoting traditional
moral norms and public order” to be “important enough to survive
[intermediate] scrutiny”); Biocic, 928 F.2d at 115-16 (finding “important” the
“government interest . . . [in] protecting the moral sensibilities of that
substantial segment of society that still does not want to be exposed” to parts
of the body “that traditionally in this society have been regarded as erogenous
zones”); Craft, 683 F. Supp. at 299-300 (finding a sufficient state interest in
“protect[ing] the public from invasions of its sensibilities”); see also Barnes v.
Glen Theatre, Inc., 501 U.S. 560, 569 (1991). We likewise conclude that they
are legitimate government interests. “The traditional police power of the States
is defined as the authority to provide for the public health, safety, and morals.”
Barnes, 501 U.S. at 569. Furthermore, the ordinance is rationally related to
advancing those interests. See id. at 571-72; Craft, 683 F. Supp. at 300-01.
8
For these reasons, we hold that the ordinance does not violate Part I, Article 2
of the New Hampshire Constitution.3
The dissent faults us for seeking guidance from other courts in
ascertaining whether Laconia’s ordinance classifies based on gender. However,
as demonstrated by the lack of any meaningful discussion of our precedent in
the dissent, we have little in the way of help from our own cases in answering
this question. Although we applied strict scrutiny to a gender-based
classification in Holbrook, see Holbrook, 140 N.H. at 189-90, as already
discussed, the law at issue in Holbrook did not impose requirements on both
men and women. The dissent identifies no other instance, nor are we aware of
any, in which we have concluded that a law challenged on equal protection
grounds contained a gender-based classification and therefore was subject to
strict scrutiny. But cf. In re Certain Scholarship Funds, 133 N.H. 227, 231
(1990) (concluding that the “State’s participation in the administration of”
certain scholarships established by trust but expressly limited to one gender
“cannot even withstand the lowest level of judicial scrutiny,” and thus declining
to “determine what level of review should be employed in cases of gender . . .
discrimination” under Part I, Article 2). Thus, our prior cases are not helpful in
analyzing whether Laconia’s ordinance is gender-based. In other words, to the
extent the dissent contends that our precedent requires us to determine the
standard of review in equal protection challenges by examining the purpose
and scope of the State-created classification, we agree. The primary issue on
which this case turns, however, is what that examination reveals when applied
to the unique facts of this case.
We agree with the dissent, of course, that this court has a duty “to make
an independent determination of the protections afforded in the New
Hampshire Constitution.” Ball, 124 N.H. at 231. However, where our previous
cases have not had occasion to answer the question presented here, we fail to
see how we depart from that duty by checking our work against other courts,
many of them in states with equal protection provisions similar to our own.
See TEX. CONST. art. 1, § 3a (“Equality under the law shall not be denied or
abridged because of sex, race, color, creed, or national origin.”); Schleuter, 947
S.W.2d at 925-26; WA. CONST. art. 31, § 1 (“Equality of rights and
responsibility under the law shall not be denied or abridged on account of
sex.”); Buchanan, 584 P.2d at 920-22; N.M. CONST. art. 2, § 18 (“Equality of
rights under law shall not be denied on account of the sex of any person.”);
Sachs, 92 P.3d at 29. Indeed, the dissent itself relies on out-of-jurisdiction
cases to support its contention that the Laconia ordinance contains a gender-
3 We reach the same result under the Federal Constitution as we do under the State Constitution.
Federal courts applying federal equal protection analysis have near-uniformly upheld ordinances
similar to Laconia’s even when subjecting them to intermediate scrutiny. See Tagami, 875 F.3d at
379-80; Ways, 331 F.3d at 599-600; Buzzetti, 140 F.3d at 144; Biocic, 928 F.2d at 115-16; J & B
Soc. Club No. 1, 966 F. Supp. at 1139-40; Craft, 683 F. Supp. at 299-301. But see Free the
Nipple Fort Collins, 237 F. Supp. 3d at 1133.
9
based classification. To the extent the dissent simply finds those cases more
persuasive, that is all the more reason for us, in fulfilling our obligation to
independently interpret Part I, Article 2, to consider the full range of how
courts have tackled this difficult question, lest we simply pick and choose from
amongst courts whose holdings align with our own personal ideologies.
The dissent also contends that there is “no principled reason why” our
approach to analyzing Laconia’s ordinance “would not apply with equal force to
other laws” that afford differing treatment to people of different races, religions,
colors, or national origins. We disagree. The facts of this case, including the
particular way in which men and women differ with respect to the traditional
understanding of nudity, are unique. Indeed, the dissent does not even
attempt to deny that nudity is simply different for men than for women. At the
same time, it is undeniably true that classifications based on immutable
characteristics have “long [been] recognized as in most circumstances
irrelevant,” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995)
(quotation omitted), and therefore are generally improper bases for differing
treatment under the law. However, based on the unique way in which men
and women differ with respect to nudity, we conclude that the ordinance does
not afford different treatment for men and women based on gender. As for the
dissent’s assertion that, given our approach to analyzing Laconia’s ordinance,
we would not apply strict scrutiny in a case that concerned laws imposing
more onerous retirement benefit requirements for women than for men, it
suffices to say that any such case would be controlled by our analysis in
Holbrook. See Holbrook, 140 N.H. at 189-90.
At various points throughout its opinion, the dissent lumps the
ordinance, and our analysis of it, together with “pervasive and perverse
discrimination,” “romantic paternalism,” “unexamined stereotypes,” and
“archaic prejudice.” The resort to such hyperbole reveals the flawed nature of
its reasoning. It assumes that, because the ordinance does not allow men and
women to engage in precisely the same mode of dress, it must contain a
gender-based classification. Respectfully, we find this approach deceptively
simplistic. For strict scrutiny to apply, it is not enough that men and women
be treated differently: they must be treated differently based upon a gender-
based classification. See Buchanan, 584 P.2d at 921-22. For the reasons
already discussed, we find no gender-based classification in the ordinance. It
is telling that the dissent has identified no case, nor are we aware of any, in
which a court sitting in a jurisdiction with an Equal Rights Amendment
analogous to our own has applied strict scrutiny to an ordinance like Laconia’s.
Neither can we ignore that no court with precedent-setting authority has held
such an ordinance unconstitutional.
Nor should the siren call of “equal rights” lead us to forget our
constitutional role. In the absence of a suspect classification or a fundamental
right, courts will not second guess legislative bodies as to the wisdom of a
10
specific law. Winnisquam Reg. Sch. Dist. v. Levine, 152 N.H. 537, 539 (2005).
That the ordinance may or may not “reflect sociological insight, or shifting
social standards” is not determinative for our purposes. Buchanan, 584 P.2d
at 921 (quotation omitted). “Our obligation” is to interpret and apply the law,
“not to mandate our own moral code.” Planned Parenthood of Southeastern PA
v. Casey, 505 U.S. 833, 850 (1992). “We are told that concepts of morality and
propriety are changing”; if so, then “it can reasonably be expected that public
demand will soon make it imperative that this portion of the ordinance be
repealed.” Buchanan, 584 P.2d at 920-21. The people of Laconia may make
such a decision, but this court will not make it for them.
III. Freedom of Speech
The defendants next argue that the ordinance violates their rights to
freedom of speech and expression under Part I, Article 22 of the New
Hampshire Constitution and the First Amendment to the United States
Constitution. They contend that, “[b]y appearing topless in public, [the
defendants] engaged in speech and expression . . . to demonstrate to others
[their] political viewpoint and message that the female nipple is not a sexual
object.” They further maintain that, by doing so, they sought “to bring
attention to gender equality and how the female nipple is treated different[ly]
than the male nipple,” “to continue the advancement of women’s rights[,] and
to have the conduct of being topless be accepted and normalized.”
We first address the defendants’ claims under the State Constitution,
and rely on federal law only to aid in our analysis. Ball, 124 N.H. at 231-33.
Once again, our review of this constitutional question is de novo. McKenzie,
154 N.H. at 777.
Part I, Article 22 of the New Hampshire Constitution provides: “Free
speech and liberty of the press are essential to the security of freedom in a
state: They ought, therefore, to be inviolably preserved.” N.H. CONST. pt. I, art.
22. Similarly, the First Amendment prevents the passage of laws “abridging
the freedom of speech.” U.S. CONST. amend. I. It applies to the states through
the Fourteenth Amendment to the United States Constitution. Lovell v. Griffin,
303 U.S. 444, 450 (1938).
When assessing whether government restrictions impermissibly infringe
on free speech, we must first address whether the speech or conduct at issue is
protected by the State Constitution. State v. Bailey, 166 N.H. 537, 540-41
(2014). The State and Federal Constitutions contain robust guarantees of free
speech, but they do not offer absolute protection to all speech under all
circumstances and in all places. State v. Biondolillo, 164 N.H. 370, 373 (2012).
We do not accept “the view that an apparently limitless variety of conduct can
be labeled ‘speech’ whenever the person engaging in the conduct intends
thereby to express an idea”; however, “we acknowledge that conduct may be
11
sufficiently imbued with elements of communication to fall within the scope of
constitutional protections.” Bailey, 166 N.H. at 541 (quotation, brackets, and
ellipsis omitted); see State v. Comley, 130 N.H. 688, 691 (1988) (noting that
although statute did not specifically regulate speech, its application “may have
such an effect where a prosecution under the statute concerns conduct
encompassing expressive activity”).
The State contends that the defendants’ conduct did not constitute
protected speech. Although “[b]eing in a state of nudity is not an inherently
expressive condition,” Pap’s A.M., 529 U.S. at 289, under the circumstances of
this case we will assume, without deciding, that the defendants engaged in
constitutionally protected expressive conduct. See Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293 (1984) (assuming, but not deciding,
that overnight sleeping in connection with demonstration was constitutionally
protected expressive conduct); Craft, 683 F. Supp. at 292 (assuming dubitante
that plaintiffs’ shirt-free appearances at Cape Cod National Seashore
constituted “expressive conduct protected to some extent by the First
Amendment” (quotation omitted)); see also Bailey, 166 N.H. at 541. We must,
therefore, determine whether the ordinance violates their right to free speech.
“It is well settled that the government need not permit all forms of speech
on property that it owns and controls.” Bailey, 166 N.H. at 541 (quotation,
brackets, and ellipsis omitted). “The standards by which limitations on speech
must be evaluated differ depending on the character of the property.” Id. at
542 (quotation and brackets omitted). Government property generally falls into
three categories — traditional public forums, designated public forums, and
limited public forums. Id. “A traditional public forum is government property
which by long tradition or by government fiat has been devoted to assembly
and debate.” Id. (quotation omitted). In such forums, the government may
impose reasonable time, place, and manner restrictions. Doyle v. Comm’r,
N.H. Dep’t of Resources & Economic Dev., 163 N.H. 215, 221 (2012). If a
restriction is content-based, it must be narrowly tailored to serve a compelling
government interest. Id.; Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226
(2015) (“Content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional and may be
justified only if the government proves that they are narrowly tailored to serve
compelling state interests.”). If a restriction is content-neutral, it must satisfy
a slightly less stringent test — it must be narrowly tailored to serve a
significant government interest. Doyle, 163 N.H. at 221; see Biondolillo, 164
N.H. at 373 (noting that federal precedent employs the same standard to assess
constitutionality of restrictions on the time, place, and manner of expressive
activities taking place in a public forum); see also Clark, 468 U.S. at 293.
The defendants suggest, and the State does not dispute, that the beaches
at which the defendants were arrested constitute traditional public forums.
Thus, for purposes of this appeal, we also will assume, without deciding, that
12
the respective beaches constitute traditional public forums. Nonetheless, the
defendants argue that “[t]ime, place, and manner analysis is not appropriate”
because the ordinance regulates speech based upon its content and viewpoint.
They contend, therefore, that we must subject the ordinance to strict scrutiny
review. We disagree.
“Government regulation of speech is content based if a law applies to
particular speech because of the topic discussed or the idea or message
expressed.” Reed, 135 S. Ct. at 2227; see also Biondolillo, 164 N.H. at 374.
On the other hand, a law is a content-neutral speech regulation if it is “justified
without reference to the content of the regulated speech.” City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (quotation and emphasis
omitted).
We agree with the trial court that the ordinance is not content-based.
The ordinance is, on its face, a general prohibition on public nudity. See Pap’s
A.M., 529 U.S. at 290 (concluding that ordinance banning public nudity was
not related to the suppression of expression). As the United States District
Court for the District of Massachusetts ruled regarding a National Park Service
regulation prohibiting public nudity at the seashore, the ordinance is “plainly
not based upon either the content or subject matter of speech.” Craft, 683 F.
Supp. at 293 (quotations omitted). There is nothing in the text of the
ordinance itself that suggests “that one group’s viewpoint is to be preferred at
the expense of others.” Id. (quotation omitted). It does not target nudity meant
to advance women’s rights or desexualize the female nipple. Rather, it
prohibits all nudity, regardless of whether the nudity is accompanied by
expressive activity. See Pap’s A.M., 529 U.S. at 290. In that sense, the
ordinance merely regulates the manner in which activities may be carried out
in that they cannot be carried out in the nude. We, therefore, conclude that
the ordinance is content-neutral.
As we stated, if a restriction is content-neutral, it must be narrowly
tailored to serve a significant government interest. Doyle, 163 N.H. at 221.
Content-neutral restrictions must also leave open ample alternative channels
for communication. Id. On appeal, the defendants do not challenge the trial
court’s rulings that the ordinance meets these requirements. Rather, their only
argument is that the ordinance is content-based and viewpoint discriminatory
and, thus, should be subject to strict scrutiny review. Because we necessarily
reject that argument by concluding that the ordinance is content-neutral, and
the defendants have not otherwise demonstrated that the trial court’s rulings
were erroneous, we need not conduct a further constitutional analysis.
Finally, the defendants pose various scenarios in their brief regarding
circumstances under which, they argue, the ordinance would be unlikely to be
applied. For example, they state that “presumably Laconia would not be
enforcing the ordinance against pre-pubescent females” and that it is
13
“questionable if the City would be enforcing the ordinance against a female who
had a double mastectomy who essentially lacks any breast tissue even if their
nipples were exposed.” Beyond these bare assertions, however, they do not
develop a legal argument. Because a mere laundry list of complaints regarding
adverse rulings by the trial court, without developed legal argument, is
insufficient to warrant judicial review, we decline to respond to these
assertions.4 See State v. Ayer, 154 N.H. 500, 513 (2006) (declining to address
defendant’s due process argument as he had not explained how his rights were
violated and had only argued in “conclusory terms”).
Accordingly, for these reasons, we cannot say that the trial court erred
by determining that the ordinance does not violate the defendants’ rights to
free speech and expression under the State Constitution. As the Federal
Constitution affords the defendants no greater protection than the State
Constitution under the circumstances presented here, see Tagami, 875 F.3d at
379 (citing Barnes, 501 U.S. at 568-69), we also find no violation of the Federal
Constitution.
IV. Authorization to Enact the Ordinance
The defendants next argue that the ordinance is invalid because the City
of Laconia did not have the statutory authority to enact the ordinance. We find
this argument unpersuasive.
“[W]hile general statutes must be enacted by the legislature, it is plain
the power to make local regulations, having the force of law in limited localities,
may be committed to other bodies representing the people in their local
divisions, or to the people of those districts themselves.” State v. Grant, 107
N.H. 1, 3 (1966) (quotation omitted). “Our whole system of local government in
cities, villages, counties and towns, depends upon that distinction. The
practice has existed from the foundation of the state, and has always been
considered a prominent feature in the American system of government.” Id.(quotation omitted). Indeed, as a subdivision of the state, the City of Laconia
may exercise such powers as are expressly or impliedly granted to it by the
legislature. See Dover News, Inc. v. City of Dover, 117 N.H. 1066, 1068 (1977).
Although there exists no express authority for a city to enact an
ordinance prohibiting females from exposing their nipples, RSA 47:17, VII
(2012) grants the city the power “[t]o regulate all streets and public ways,
wharves, docks, and squares, and the use thereof.” Further, RSA 47:17, XIII
4 RSA 132:10-d (2015) provides: “Breast-feeding a child does not constitute an act of indecent
exposure and to restrict or limit the right of a mother to breast-feed her child is discriminatory.”
Although noting that the ordinance does not make any exception for breast-feeding, the
defendants specifically acknowledge that “they are not seeking to invalidate the ordinance for its
failure to exempt breastfeeding.” We therefore have no occasion to address this issue.
14
(2012) grants the city the power “to regulate the times and places of bathing
and swimming in the canals, rivers and other waters of the city, and the
clothing to be worn by bathers and swimmers.” In addition, RSA 47:17, XV
(2012) gives the city the power to “make any other bylaws and regulations
which may seem for the well-being of the city” so long as “no bylaw or
ordinance” is “repugnant to the constitution or laws of the state.”
Moreover, the governmental authority known as the police power is an
inherent attribute of state sovereignty. Piper v. Meredith, 110 N.H. 291, 294
(1970). The police power is broad and “includes such varied interests as public
health, safety, morals, comfort, the protection of prosperity, and the general
welfare.” Id. (quotation omitted). The express and implied powers granted to
towns by the legislature must be interpreted and construed in light of the
police powers of the state which grants them. Id. at 295.
We have held that towns are empowered under the authority granted by
RSA 31:39 (Supp. 2017) to make bylaws for a variety of purposes which
generally fall into the category of health, welfare, and public safety. See id.
Specifically, RSA 31:39, I(a) empowers towns to make bylaws for “[t]he care,
protection, preservation and use of the public cemeteries, parks, commons,
libraries and other public institutions of the town.”
We believe that these statutory provisions authorize the city to enact the
ordinance. See Dover News, Inc., 117 N.H. at 1068. As we explained, the
stated purpose of the ordinance is to uphold and support “public health, public
safety, morals and public order.” Laconia, N.H., Code of Ordinances ch. 180,
art. 1, § 180-1. We agree with the State that the ordinance’s prohibition on
public nudity is substantially related to this purpose. See Grant, 107 N.H. at
3. Furthermore, we have found that the ordinance does not violate the
defendants’ constitutional rights to equal protection or freedom of speech
under the State and Federal Constitutions. As such, it does not unduly restrict
the defendants’ fundamental rights. Accordingly, we agree with the trial court
that the City had the authority to enact the ordinance.
V. Preemption
The defendants next contend that the ordinance is preempted by RSA
645:1, I (2016). It is well settled that towns cannot regulate a field that has
been preempted by the State. Town of Rye Bd. of Selectmen v. Town of Rye
Zoning Bd. of Adjustment, 155 N.H. 622, 624 (2007). The preemption doctrine
flows from the principle that municipal legislation is invalid if it is repugnant
to, or inconsistent with, state law. Id. State law expressly preempts local law
when there is an actual conflict between state and local regulation. Id. at 624-
25. An actual conflict exists when a municipal ordinance or regulation permits
that which a state statute prohibits, or vice versa. Id. at 625. Moreover, even
when a local ordinance does not expressly conflict with a state statute, it will
15
be preempted when it frustrates the statute’s purpose. Forster v. Town of
Henniker, 167 N.H. 745, 756 (2015). Because preemption “is essentially a
matter of statutory interpretation and construction,” whether a state statute
preempts local regulation is a question of law, which we review de novo. Id.(quotation omitted).
RSA 645:1, I, provides that “[a] person is guilty of a misdemeanor if such
person fornicates, exposes his or her genitals, or performs any other act of
gross lewdness under circumstances which he or she should know will likely
cause affront or alarm.” The defendants do not — and could not — argue that
this statute specifically authorizes the public display of breasts by females. On
the contrary, although we need not decide the issue, this statute at least
arguably can be read to prohibit such conduct as an act of gross lewdness.
See, e.g., Com. v. Quinn, 789 N.E.2d 138, 146 (Mass. 2003). Nor can it be said
that this statute represents the kind of comprehensive regulatory scheme that
is indicative of legislative intent to occupy the field of regulation of public safety
and morals. See Prolerized New England Co. v. City of Manchester, 166 N.H.
617, 623 (2014). Therefore, there is simply no basis for a claim that the
ordinance either expressly conflicts with RSA 645:1, I, or that it frustrates the
purpose of the statute.
The defendants point to an unsuccessful effort by legislators to enact
legislation that would have specifically prohibited the public exposure of female
breasts, see 2016 HB 1525-FN, arguing that the failure of that measure
demonstrates legislative intent not to prohibit such conduct. As we have
noted, however, “[w]e can discern no clear meaning from the legislature’s
failure to enact the proposed amendment.” Dover News, Inc., 117 N.H. at
1069; see also Appeal of House Legislative Facilities Subcom., 141 N.H. 443,
449 (1996) (rejecting as misguided argument that failure of proposed
amendment to Public Employee Labor Relations Act that would have expressly
excluded legislative and judicial employees from its coverage demonstrated
legislative intent that such employees be covered, and observing that “the
amendment’s failure could as easily have resulted from the belief that those
employees were not covered by the Act in the first place”).
For these reasons, we find that the ordinance is not preempted by RSA
645:1, I.
VI. RSA Chapter 354-A
Finally, the defendants argue that the trial court erred by denying their
motion to dismiss because the ordinance violates RSA chapter 354-A. Relying
upon RSA 354-A:16 and :17, the defendants contend that by “mak[ing] it illegal
to be a topless female in public while allowing a male to be topless in public,”
the ordinance discriminates by “exclud[ing] someone from being on public
property based solely on that person’s sex/gender.”
16
This argument requires us to engage in statutory interpretation. We are
the final arbiters of the legislature’s intent as expressed in the words of the
statute considered as a whole. EEOC v. Fred Fuller Oil Co., 168 N.H. 606, 608
(2016). “We first examine the language of the statute, and, when possible, we
ascribe the plain and ordinary meanings to the words used.” Eldridge v.
Rolling Green at Whip-Poor-Will Condo. Owners’ Association, 168 N.H. 87, 90
(2015) (quotation omitted).
RSA chapter 354-A, known as the “Law Against Discrimination,”
prohibits, as relevant here, unlawful discrimination based upon sex in places of
public accommodation as provided therein. See RSA 354-A:1 (title and
purposes of chapter), :16-:17 (public accommodation). RSA 354-A:16 provides,
in pertinent part, that “[t]he opportunity for every individual to have equal
access to places of public accommodation without discrimination because of
age, sex, race, creed, color, marital status, physical or mental disability or
national origin is hereby recognized and declared to be a civil right.” RSA 354-
A:17 states:
It shall be an unlawful discriminatory practice for any
person, being the owner, lessee, proprietor, manager,
superintendent, agent or employee of any place of public
accommodation, because of the . . . sex . . . of any person, directly
or indirectly, to refuse, withhold from or deny to such person any
of the accommodations, advantages, facilities or privileges thereof;
or, directly or indirectly, to publish, circulate, issue, display, post
or mail any written or printed communication, notice or
advertisement to the effect that any of the accommodations,
advantages, facilities and privileges of any such place shall be
refused, withheld from or denied to any person on account of . . .
sex . . . ; or that the patronage or custom thereat of any person
belonging to or purporting to be of any particular . . . sex . . . is
unwelcome, objectionable or acceptable, desired or solicited.
In advancing their statutory argument, the defendants do little more
than rehash their constitutional equal protection argument that, by prohibiting
the exposure of the female, but not the male, breast, the ordinance
discriminates on the basis of sex. For the reasons already discussed, we do not
find that the ordinance constitutes unlawful discrimination in violation of RSA
354-A:16 or :17. Rather, we agree with the trial court that the ordinance
merely prohibits those who access public places from doing so in the nude, and
makes a permissible distinction between the areas of the body that must be
covered by each gender.5 See Sachs, 92 P.3d at 29 (holding that, in addition to
5 The defendants cite cases from several jurisdictions that hold that various forms of preferences
given to women, such as car wash discounts and discounted drink prices for women at a bar or
racetrack, violated the respective jurisdiction’s anti-discrimination laws or ordinances. See Koire
17
not violating the New Mexico Constitution, the ordinance at issue in that case
did not contravene the New Mexico Human Rights Act).
Affirmed.
LYNN, C.J., and DONOVAN, J., concurred; BASSETT, J., with whom
HICKS, J., joined, concurred in part and dissented in part.
BASSETT, J., with whom HICKS, J., joins, concurring in part and
dissenting in part. We agree with our colleagues in most respects: Laconia’s
ordinance does not violate the defendants’ rights to freedom of speech and
expression; it falls within the regulatory authority of the City of Laconia; it is
not preempted by statute; and it does not violate RSA chapter 354-A. However,
we part company with the majority when it rejects the defendants’ equal
protection claim. We strongly disagree that rational basis is the lens through
which the defendants’ equal protection challenge should be analyzed.
Laconia’s ordinance facially classifies on the basis of gender: if a woman and a
man wear the exact same clothing on the beach, on Laconia’s main street, or in
a backyard “visible to the public,” the woman is engaging in unlawful behavior
— but the man is not. Laconia, N.H., Code of Ordinances ch. 180, art. I,
§§ 180-2, 180-4 (1998). This is a gender-based classification. Accordingly, the
court must apply strict scrutiny. See In re Sandra H., 150 N.H. 634, 637
(2004) (“Classifications based upon suspect classes or affecting a fundamental
right are subject to the most exacting scrutiny . . . .” (quotation omitted));
Cheshire Medical Center v. Holbrook, 140 N.H. 187, 189 (1995) (“Our
constitution guarantees that ‘equality of rights . . . shall not be denied or
abridged by this state on account of . . . sex.’ N.H. CONST. pt. I, art. 2. In
order to withstand scrutiny under this provision, a common law rule that
distributes benefits or burdens on the basis of gender must be necessary to
serve a compelling State interest.”); LeClair v. LeClair, 137 N.H. 213, 222
(1993) (“We apply the strict scrutiny test, in which the government must show
a compelling State interest in order for its actions to be valid, when the
classification involves a suspect class based on race, creed, color, gender,
national origin, or legitimacy . . . .” (quotation omitted) (superseded by statute
on other grounds). Were this court to subject Laconia’s ordinance to this
exacting standard, given that the government failed to present sufficient
evidence in the trial court to satisfy its burden of proof, we would be compelled
to find the ordinance unconstitutional.
v. Metro Car Wash, 707 P.2d 195, 204 (Cal. 1985); City of Clearwater v. Studebaker’s D. Cl., 516
So. 2d 1106, 1108-09 (Fla. Dist. Ct. App. 1987); Ladd v. Iowa West Racing Ass’n., 438 N.W.2d
600, 602 (Iowa 1989); Peppin v. Woodside Delicatessen, 506 A.2d 263, 267 (Md. Ct. Spec. App.
1986); Com., Pa. Liquor Control Bd. v. Dobrinoff, 471 A.2d 941, 943 (Pa. Commw. Ct. 1984).
These cases are readily distinguishable from the case at bar because, unlike in this case, they did
not involve a distinction based upon the common understanding of what constitutes nudity.
18
Laconia’s ordinance makes it “unlawful for any person to knowingly or
intentionally, in a public place: . . . [a]ppear in a state of nudity.” Laconia,
N.H., Code of Ordinances ch. 180, art. I, § 180-2. Laconia defines “public
place” to include “[a]ny public street, . . . beach, or other property or public
institution of the City”; “[a]ny outdoor location, whether publically or privately
owned, which is visible to the public at the time the prohibited conduct
occurs”; and “[a]ny area within any . . . place of public accommodation or other
private property which is generally frequented by the public.” Laconia, N.H.,
Code of Ordinances ch. 180, art. I § 180-4. It defines nudity as “the showing of
the human male or female genitals, pubic area or buttocks with less than a
fully opaque covering, or the showing of the female breast with less than a fully
opaque covering of any part of the nipple.” Id. The defendants argue that the
latter portion of the ordinance violates their constitutional rights to equal
protection because, even though both men and women have nipples, the
ordinance does not treat men and women equally.
“In considering an equal protection challenge under our State
Constitution, we must first determine the correct standard of review by
examining the purpose and scope of the State-created classification and the
individual rights affected.” Cmty. Res. for Justice v. City of Manchester, 154
N.H. 748, 758 (2007) (quotation and brackets omitted). The significance of the
threshold determination as to the proper standard of review cannot be
overstated. Classifications based upon suspect classes or that affect
fundamental rights are subject to strict scrutiny: the government must prove
that the legislation is “necessary to serve a compelling State interest,”
Holbrook, 140 N.H. at 189, and that it is “narrowly tailored to meet that end,”
Cmty. Res., 154 N.H. at 759 (quotation omitted). Below strict scrutiny is
intermediate scrutiny, which is triggered when the challenged classification
involves important substantive rights, Sandra H., 150 N.H. at 637-38, and
which requires the government to show that the challenged legislation is
substantially related to an important government interest. Cmty. Res., 154
N.H. at 762. Under either strict or intermediate scrutiny, the government
bears the burden of proof, and “may not rely upon justifications that are
hypothesized or invented post hoc in response to litigation, nor upon overbroad
generalizations.” Id. (quotations omitted); see also Fisher v. University of Texas
at Austin, 570 U.S. 297, 310-12 (2013). On the other end of the spectrum, if
legislation does not classify based on a suspect class, affect fundamental
rights, or involve important substantive rights, the constitutional standard of
review is rational basis. Sandra H., 150 N.H. at 638. “The rational basis test
under the State Constitution requires that legislation be only rationally related
to a legitimate government interest.” Boulders at Strafford v. Town of Strafford,
153 N.H. 633, 641 (2006). The rational basis test puts the burden of proof on
the party challenging the legislation and “contains no inquiry into whether
legislation unduly restricts individual rights.” Id. at 641-42.
19
The majority acknowledges — as it must — that under the New
Hampshire Constitution, gender-based classifications trigger strict scrutiny.
Yet the majority declines to apply strict scrutiny in this case, reasoning that,
because “men and women are not fungible with respect to the traditional
understanding of what constitutes nudity,” the Laconia ordinance does not
classify on the basis of gender. The conclusion that the ordinance does not
classify on the basis of gender, and therefore can be analyzed by applying the
rational basis test, does not find support in the plain language of the
ordinance, the New Hampshire Constitution, or our precedent.
That the ordinance classifies on the basis of gender is self-evident. The
ordinance defines “nudity” differently for females and males. By the plain text
of the ordinance, a person who appears in a public place showing “the female
breast with less than a fully opaque covering of any part of the nipple” violates
the ordinance; a male who appears in the same public place without such a
covering does not. Laconia, N.H., Code of Ordinances ch. 180, art. I, §§ 180-2,
180-4 (emphasis added). The challenged portion of the ordinance creates a
public dress code which only one gender can violate. This is a gender-based
classification.
Indeed, the Seventh Circuit Court of Appeals recently held that a public
nudity ordinance that defines nudity differently for men and women classifies
on the basis of gender. Tagami v. City of Chicago, 875 F.3d 375, 379-80 (7th
Cir. 2017), cert. denied, 138 S. Ct. 1577 (2018). In Tagami, a woman who had
been found guilty of violating a public-nudity ordinance that criminalized
public display of “the breast at or below the upper edge of the areola thereof of
any female person” if “not covered by an opaque covering,” sued the City
alleging that the ordinance discriminates on the basis of sex in violation of the
Federal Constitution. Id. at 377 (quotation omitted). The City asserted that
the ordinance did not classify on the basis of sex because it “treats men and
women alike by equally prohibiting the public exposure of the male and female
body parts that are conventionally considered to be intimate, erogenous, and
private.” Id. at 379-80. The City contended that “the list of intimate body
parts is longer for women than men, but that’s wholly attributable to the basic
physiological differences between the sexes.” Id. at 380. The Seventh Circuit
summarily dismissed the City’s contention, stating that the City’s argument
was “a justification for this classification rather than an argument that no sex-
based classification is at work here at all.” Id. The court concluded that, “[o]n
its face, the ordinance plainly does impose different rules for women and men,”
and then proceeded to analyze the ordinance under the heightened scrutiny
required by the Federal Constitution for gender-based classifications. Id.
The Seventh Circuit is not an outlier. Many courts have held that
ordinances such as Laconia’s do, in fact, classify on the basis of gender. See,
e.g., Craft v. Hodel, 683 F. Supp. 289, 299 (D. Mass. 1988) (concluding that,
under the Federal Constitution, a regulation prohibiting display of female but
20
not male breasts “does, of course, distinguish between males and females” and
thus was “subject to scrutiny under the Equal Protection Clause” (quotation
omitted)); City of Tucson v. Wolfe, 917 P.2d 706, 707 (Ariz. Ct. App. 1995)
(applying heightened scrutiny “[b]ecause this ordinance creates a different
standard of conduct for each gender”); Dydyn v. Department of Liquor Control,
531 A.2d 170, 175 (Conn. App. Ct. 1987) (“We are not persuaded, however, by
the argument that the regulation does not classify on the basis of sex. When a
statute or regulation distinguishes between male and female anatomy, we hold
that [the level of scrutiny required for gender-based classifications] must be
applied.”). But see Eckl v. Davis, 124 Cal. Rptr. 685, 695-96 (Ct. App. 1975)
(holding that the ordinance did not classify based on sex because “nudity in the
case of women is commonly understood to include the uncovering of the
breast”); City of Seattle v. Buchanan, 584 P.2d 918, 920-22 (Wash. 1978) (en
banc) (same).
We agree with the reasoning of the Seventh Circuit. Public nudity
ordinances such as the ordinances in Chicago and Laconia — i.e., those that
use explicit, gendered language to make it unlawful for a female to engage in
certain behavior, while the same behavior is lawful for a male — clearly classify
by gender. The majority asserts that such reasoning is “flawed” and
“deceptively simple.” We fail to see the flaw or deception in our simple
reasoning: when a law uses the word “female” to classify between those who
can violate the ordinance — females — and those who cannot — males — it
contains a gender-based classification. We freely acknowledge that the
question of whether basic physiological differences between the sexes justify
disparate treatment of men and women is a more nuanced and complicated
question. But classification and justification present different questions.
Respectfully, we find the reasoning of the majority — which obscures the
simple threshold question — needlessly convoluted and artificially complex.
Indeed, a court upends the safeguards of equal protection if it reasons
that, because a law is premised upon physiological or anatomical differences
between the sexes, the law does not classify by gender and therefore it need not
be analyzed under strict scrutiny. For example, because women have a longer
life expectancy than men, by the majority’s reasoning, a hypothetical law that
mandates that women work four years longer than men in order to qualify for a
pension, or prevents women from retiring until age 70 as opposed to age 66 for
men, or reduces a woman’s social security benefits if she retires at the same
age as a man, does not classify on the basis of gender. Such a law would be
constitutional so long as it was “rationally related to a legitimate government
interest.” Boulders, 153 N.H. at 641. Analyzing whether a law comports with
equal protection does not require that the court be blind to basic physiological
or anatomical differences. In some cases, applying the constitutionally
required level of scrutiny, this court might conclude that such differences
justify disparate treatment under the law. However, a court subverts the basic
guarantee of equal protection if it concludes that, because men and women
21
have physiological or anatomical differences, a law that classifies on the basis
of those differences does not trigger strict scrutiny.
The New Hampshire Constitution states: “Equality of rights under the
law shall not be denied or abridged by this state on account of race, creed,
color, sex or national origin.” N.H. CONST. pt. I, art. 2. This guarantee
became part of our State Constitution in 1974 after the people of New
Hampshire passed the Equal Rights Amendment by an overwhelming margin.
There is no counterpart to New Hampshire’s Equal Rights Amendment in the
United States Constitution. Accordingly, we, like courts in other states whose
citizens have adopted an Equal Rights Amendment, do not “equate our [Equal
Rights Amendment] with the equal protection clause of the federal constitution”
as doing so “would negate its meaning given that our state adopted an [Equal
Rights Amendment] while the federal government failed to do so.” Doe v.
Maher, 515 A.2d 134, 160-61 (Conn. Super. Ct. 1986). We “find inescapable
the conclusion that [our Equal Rights Amendment] was intended to
supplement and expand the guaranties of the equal protection provision . . .
and requires us to hold that a classification based on sex is a ‘suspect
classification’ which, to be held valid, must withstand ‘strict judicial scrutiny.’”
People v. Ellis, 311 N.E.2d 98, 101 (Ill. 1974). “Any other view would mean the
people intended to accomplish no change in the existing constitutional law
governing sex discrimination” when they enacted the amendment. Darrin v.
Gould, 540 P.2d 882, 889 (Wash. 1975) (en banc). Our amended Constitution,
and subsequent precedent, now require the State to bear a heavy burden when
it seeks to treat people differently under the law “on account of race, creed,
color, sex or national origin.” N.H. CONST. pt. I, art. 2; see, e.g., Sandra H.,
150 N.H. at 637; Holbrook, 140 N.H. at 189; LeClair, 137 N.H. at 222. As we
have previously observed:
Part I, article 2 of the New Hampshire Constitution forbids the
State to discriminate on the basis of . . . gender. The New
Hampshire voters, in ratifying this amendment, have firmly
established public policy that demands equal protection for all,
regardless of . . . gender.
In re Certain Scholarship Funds, 133 N.H. 227, 232 (1990).
The majority’s conclusion that a lesser standard applies turns the clock
back to the era before the adoption of the Equal Rights Amendment — a
bygone era when women were the victims of pervasive discrimination and this
court rejected challenges to laws that treated men and women differently.
Indeed, the New Hampshire Supreme Court held more than sixty years ago —
but within the lifetimes of judges now sitting on this court — that a regulation
which banned women from playing golf on a municipal course during certain
hours did not violate the New Hampshire Constitution’s equal protection
guarantee. See Allen v. Manchester, 99 N.H. 388, 390-92 (1955). We reasoned
22
that because it was not “plainly mistaken or arbitrary” that “women golfers, on
the average, progress about the course more slowly than men,” and separating
slow groups from fast groups might improve “the safety of players, and of
women and children golfers in particular,” the law did not create an “invalid
classification.” Id. at 391-92. “Women were separately classified with children,
not because of sex, but because of a manner of playing golf thought to be
characteristic of them as a group.” Id. at 392. The majority’s position in this
case — that strict scrutiny is not required here because women are thought to
be different from men with regard to nudity — harkens back to that bygone
era.
The majority misconstrues the equal protection guarantee when it
reasons that our precedent “does not necessarily establish that the Laconia
ordinance triggers strict scrutiny” because it “does not address the type of
legislation that is at issue here: a proscription that imposes requirements on
both men and women, but applies to women somewhat differently.” The
threshold inquiry as to the proper level of review is not whether the law
classifies by gender in all respects: it is whether the law classifies by gender in
any respect. As the United States Supreme Court has explained: “Whenever
the government treats any person unequally because of [a suspect
classification], that person has suffered an injury that falls squarely within the
language and spirit of the Constitution’s guarantee of equal protection.”
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30 (1995). It is
precisely because Laconia’s ordinance “applies to women somewhat differently”
that we must apply strict scrutiny.
The majority reasons that a lesser standard is applicable here in part
because “[c]ourts in other jurisdictions have generally upheld laws that
prohibit women but not men from exposing their breasts,” but have “often left
unclear the applicable standard of review.” It observes that no court has held
that an ordinance like Laconia’s triggers strict scrutiny, and that no appellate
court has held such an ordinance unconstitutional. However, “[t]he New
Hampshire Constitution is the fundamental charter of our State.” State v. Ball,
124 N.H. 226, 231 (1983). “Our constitution will often afford greater protection
against the action of the State than does the Federal Constitution.” State v.
Settle, 122 N.H. 214, 217 (1982). Therefore, “this court has a responsibility to
make an independent determination of the protections afforded under the New
Hampshire Constitution.” Ball, 124 N.H. at 231. “If we ignore this duty, we
fail to live up to our oath to defend our constitution . . . .” Id.
We recognize that courts in other jurisdictions, applying less exacting
levels of scrutiny, have upheld the constitutionality of ordinances similar to
Laconia’s. See, e.g., Tagami, 875 F.3d at 380. But see Free the Nipple Fort
Collins v. City of Fort Collins, Colorado, 237 F. Supp. 3d 1126, 1130, 1133 (D.
Colo. 2017) (concluding that equal protection challenge to ordinance
prohibiting women but not men from exposing their breasts was likely to
23
succeed on the merits when analyzed under intermediate scrutiny, as required
by the Federal Constitution, because the ordinance “is based on an
impermissible gender stereotype that results in a form of gender-based
discrimination”). However the Federal Constitution, and the majority of other
state constitutions, materially differ from New Hampshire’s Constitution
because they do not explicitly provide that equal rights under the law shall not
be denied because of sex. See Leslie W. Gladstone, Cong. Research Serv.,
RS20217, Equal Rights Amendments: State Provisions (2004) (discussing and
listing state Equal Rights Amendments). In those jurisdictions, gender-based
classifications never trigger strict scrutiny review. See, e.g., Tagami, 875 F.3d
at 380 (Federal Constitution); Wolfe, 917 P.2d at 707 (state constitution). By
contrast, in New Hampshire, gender-based classifications always trigger strict
scrutiny review. Therefore, to the extent that the majority relies upon the
outcome of cases decided through application of less rigorous standards to
determine the issue central to this case — whether Laconia’s ordinance
contains a gender-based classification — it shrinks from the court’s duty to
ensure that “Equality of rights under the law shall not be denied or abridged by
this state on account of race, creed, color, sex or national origin.” N.H. CONST.
pt. I, art. 2.
For the reasons discussed above, we conclude that Laconia’s ordinance
classifies on the basis of gender. We recognize that a handful of courts,
including two sitting in states that have adopted equal rights provisions similar
to Part I, Article 2, have concluded that ordinances like Laconia’s do not
classify on the basis of gender. See Eckl, 124 Cal. Rptr. at 696; Buchanan,
584 P.2d at 920-22. However, the reasoning employed by these courts is
unsound and cannot withstand scrutiny.
In Eckl, the California Court of Appeal reasoned that a public nudity
ordinance that defined nudity differently for men and women did not contain a
gender-based classification because “[n]ature, not the legislative body, created
the distinction between that portion of the woman’s body and that of a man’s
torso,” Eckl, 124 Cal. Rptr. at 696; see also Buchanan, 584 P.2d at 920
(“[C]ommon knowledge tells us . . . that there is a real difference between the
sexes with respect to breasts . . . .”). However, the fact that “nature” has
created distinctions between men and women does not lessen the level of
scrutiny demanded by our constitution. Our precedent is clear: in order to
“determine the correct standard of review,” the court must “examin[e] the
purpose and scope of the State-created classification and the individual rights
affected.” Cmty. Res., 154 N.H. at 758 (quotations and brackets omitted). The
critical threshold determination as to the proper standard of review should not
— and does not — include a judicial inquiry into whether “nature” or “the
legislative body” created distinctions among those classified.
24
Indeed, “natural” distinctions between people — including differences in
skin color, gender, and country of origin — have historically served as
justifications for pervasive and perverse discrimination. That is precisely why
the constitution requires us to subject legislation that distinguishes between
people on the basis of such differences to heightened scrutiny. The “basic
concept of our system [is] that legal burdens should bear some relationship to
individual responsibility.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973)
(plurality opinion) (quotation omitted). Gender, skin color, and country of
origin are “immutable facts that bear no relation to ability, disadvantage, moral
culpability, or any other characteristics of constitutionally permissible interest
to government.” Fullilove v. Klutznick, 448 U.S. 448, 525 (1980) (Stewart, J.,
dissenting); see also Frontiero, 411 U.S. at 686. Accordingly, when a legislative
body enacts a law that distributes benefits or burdens on the basis of any of
these immutable characteristics, that legislation triggers strict scrutiny review.
See Holbrook, 140 N.H. at 189. The Equal Rights Amendment was intended as
a shield to protect people from disparate treatment under the law on the basis
of “natural” or immutable characteristics. But here the majority concludes
that because “nature, not the legislative body,” has distinguished between men
and women, Laconia’s ordinance does not classify on the basis of gender. In so
doing, the majority turns a constitutional shield into a sword: it wields
“immutable characteristics” as a weapon to attack the very protections that the
Equal Rights Amendment was intended to guarantee.
Perhaps recognizing this truth, the majority, quoting Buchanan and
Eckl, attempts to further justify its conclusion by asserting that the ordinance
“merely reflects the fact that men and women are not fungible with respect to
the traditional understanding of what constitutes nudity.” Buchanan, 584
P.2d at 920-22 (“It is true that [the ordinance] requires the draping of more
parts of the female body than of the male, but only because there are more
parts of the female body intimately associated with the procreative function.
The fact that the ordinance takes account of this fact does not render it
discriminatory.”); Eckl, 124 Cal. Rptr. at 696 (“Unlike the situation with respect
to men, nudity in the case of women is commonly understood to include the
uncovering of the breasts. Consequently, in proscribing nudity on the part of
women it was necessary to include express reference to that area of the body.”).
However, “traditional” or “common” moral understandings do not determine
constitutional guarantees.
“[O]ur Nation has had a long and unfortunate history of sex
discrimination.” Frontiero, 411 U.S. at 684. “Traditionally, such
discrimination was rationalized by an attitude of ‘romantic paternalism’ which,
in practical effect, put women, not on a pedestal, but in a cage.” Id. The law
no longer accepts stereotypical notions about women’s abilities, interests, and
proper place in the public sphere as justifications to treat men and women
differently under the law with regard to their ability to serve on juries, see
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994), administer estates,
25
see Reed v. Reed, 404 U.S. 71, 76 (1971), or learn as military cadets, see
United States v. Virginia, 518 U.S. 515, 557-58 (1996). A court would no
longer say, as a Supreme Court Justice did over 100 years ago, that a woman
did not have a right to practice law because “the civil law, as well as nature
herself, has always recognized a wide difference in the respective spheres and
destinies of man and woman. . . . This is the law of the Creator. . . . [T]he
rules of civil society must be adapted to the general constitution of things . . . .”
Bradwell v. The State, 83 U.S. 130, 141-42 (1872) (Bradley, J., concurring).
We revisit that bygone era, and thwart the very protections the Equal Rights
Amendment was enacted to provide, if we allow stereotypical notions about
women’s bodies to alter our analysis of the straightforward question of whether
Laconia’s ordinance classifies on the basis of gender. This is precisely why the
New Hampshire Constitution requires that legislation which discriminates on
the basis of a suspect classification be subject to strict scrutiny.
The law has often been used to perpetuate discrimination based on
“public sensibilities” or “common understandings” about individuals on the
basis of immutable characteristics — however misinformed or ill-motivated
those understandings might be. “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.” People v. Santorelli, 600 N.E.2d
232, 236 (N.Y. 1992) (Titone, J., concurring). “Thus, where ‘public sensibilities’
constitute the justification for a gender-based classification, the fundamental
question is whether the particular ‘sensibility’ to be protected is, in fact, a
reflection of archaic prejudice or a manifestation of a legitimate government
objective.” Id. When the majority takes judicial notice of a common moral
understanding about an immutable physical characteristic, and allows it to
alter and lessen a constitutional guarantee, it erodes the protections the Equal
Rights Amendment was enacted to provide. We see no principled reason why
the majority’s approach would not apply with equal force to other laws that
treat people differently “on account of race, creed, color, sex or national origin.”
N.H. CONST. pt. I, art. 2. This is a significant change to New Hampshire’s
equal protection guarantee that gives us great pause. As the United States
Supreme Court has observed:
The point of carefully examining the interest asserted by the
government in support of a [suspect] classification, and the
evidence offered to show that the classification is needed, is
precisely to distinguish legitimate from illegitimate uses of
[immutable characteristics] in governmental decisionmaking. . . .
[The fact that] some cases may be difficult to classify [is] all the
more reason, in our view, to examine [suspect] classifications
carefully. . . . By requiring strict scrutiny of [suspect]
classifications, we require courts to make sure that a governmental
26
classification based on [a suspect class] . . . is legitimate, before
permitting unequal treatment . . . to proceed.
Adarand, 515 U.S. at 228 (quotation omitted).
We now analyze Laconia’s ordinance under the applicable standard of
review, strict scrutiny, to determine whether the State adduced sufficient
evidence to meet its exacting burden. We have no choice but to conclude that
it did not. During the hearing on the petitioners’ motion to dismiss, the State
argued that equal protection is not strictly applicable to this case, and that “the
burden is on the petitioner to show that [the ordinance] is unconstitutional. . . .
It’s not on the State.” In light of the State’s position that the ordinance does
not trigger strict scrutiny, it is not surprising that the State failed to introduce
sufficient evidence to support a finding that the ordinance is “necessary to
serve a compelling State interest,” Holbrook, 140 N.H. at 189, or that it is
“narrowly tailored to meet that end.” Cmty. Res., 154 N.H. at 759 (quotation
omitted).
The ordinance’s stated purpose is to uphold and support “public health,
public safety, morals and public order.” Laconia, N.H., Code of Ordinances ch.
180, art. I, § 180-1 (1998). In the trial court, the City asserted that because
the defendants were topless, they caused a “disturbance” which “has the
potential for violence.” The City also asserted that, because people think of
“female breasts in a sexualized manner,” topless women may present other
beachgoers with “a mental health issue.” Turning to the ordinance’s other
stated purposes, “morals and public order,” the City argued to the trial court
that women who do not cover their nipples act contrary to “the City’s
character” and “morals as determined by the city council.”
However we, like the United States Supreme Court, “have never held that
moral disapproval, without any other asserted state interest, is a sufficient
rationale under the Equal Protection Clause to justify a law that discriminates
among groups of persons.” Lawrence v. Texas, 539 U.S. 558, 582 (2003)
(O’Connor, J., concurring in the judgment). Indeed, the State has not cited —
nor are we aware of — any case that holds that a government’s interest in
morality rises to the level of a compelling government interest. “[T]he fact that
the governing majority in a State has traditionally viewed a particular practice
as immoral is not a sufficient reason for upholding a law prohibiting the
practice.” Id. at 577 (quotation omitted) (majority opinion). Accordingly, we do
not conclude that the State has met its burden of proving that the
government’s interests in morals and public order are, in fact, compelling.
“Our obligation is to define the liberty of all, not to mandate our own moral
code.” Planned Parenthood of Southern PA v. Casey, 505 U.S. 833, 850 (1992).
Even if we assume that the government’s asserted interests are
compelling, a review of the evidence presented to the trial court establishes
27
that the State has not met its burden to prove that the ordinance is necessary
and narrowly tailored. See Holbrook, 140 N.H. at 189; Cmty. Res., 154 N.H. at
759. “Although narrow tailoring does not require exhaustion of every
conceivable [gender]-neutral alternative, . . . [t]he reviewing court must
ultimately be satisfied that no workable [gender]-neutral alternatives” would
suffice. Fisher, 570 U.S. at 312 (quotation, citation, and brackets omitted).
Here, there is no evidence that the City of Laconia considered gender-neutral
alternatives and the State has made no argument and presented no evidence
as to why gender-neutral alternatives would not suffice. At oral argument the
State asserted that the ordinance was “fairly narrowly tailored” because a
woman need only “wear pasties” including “pasties that look like nipples.”
However, it failed to explain why the ordinance was necessary in the first place
or why a less restrictive ordinance, perhaps one more narrow in time or place,
would be insufficient. By the ordinance’s plain language, it is perfectly lawful
for a post-pubescent female to wear pasties with tassels walking down
Laconia’s Main Street, even though a four-year-old girl playing on the beach
wearing only shorts, or an adult woman sunbathing without a top in her own
back yard, engages in unlawful behavior if her nipples are “visible to the
public.” Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-4. Without
evidence that gender-neutral or less restrictive alternatives would be
unworkable, we cannot conclude that the State has met its burden to prove
that Laconia’s ordinance is necessary and narrowly tailored to accomplish the
government’s asserted interests.
In sum, applying the strict scrutiny standard required by Part I, Article
2, we conclude that the State has not carried its burden to prove that its
asserted interests are compelling and that Laconia’s ordinance is necessary
and narrowly tailored. We reach this conclusion after objectively applying
strict scrutiny as required by our precedent and Part I, Article 2. In so
concluding, we do not mean to imply that all legislation that classifies on the
basis of gender would not survive the strict scrutiny test, nor that Laconia’s
ordinance might not have passed constitutional muster had the State accepted
that it bore the burden of proof; rather, we find that the State’s proof in this
case falls far short of satisfying strict scrutiny.
Although laws that classify on the basis of gender are subject to strict
scrutiny under the New Hampshire Constitution, it does not follow that all
such laws will be invalidated by application of that exacting standard. “The
fact that strict scrutiny applies says nothing about the ultimate validity of any
particular law; that determination is the job of the court applying strict
scrutiny.” Johnson v. California, 543 U.S. 499, 515 (2005) (quotation omitted).
Therefore, if the State meets its burden to demonstrate that a law that
classifies on the basis of gender is necessary and narrowly tailored to further a
compelling government interest, this court would find — as have others — that
such a law is constitutional. See People v. Carranza, No. B240799, 2013 WL
3866506, at *7-8 (Cal. Ct. App. July 24, 2013) (concluding that a sexual
28
battery statute which criminalized non-consensual touching of the breast of a
female, but not of a male, did not violate the state’s constitutional equal
protection guarantee when analyzed under strict scrutiny because “there is a
compelling government interest in protecting females from non-consensual
touching of their breasts”); Michael M. v. Superior Court of Sonoma Cty., 601
P.2d 572, 573-74 (Cal. 1979) (en banc), aff'd, 450 U.S. 464 (1981) (applying
strict scrutiny and holding that a statute which criminalized sexual intercourse
with a minor female, but not a male, classified by sex but did not violate equal
protection because the law was “supported not by mere social convention but
by the immutable physiological fact that it is the female exclusively who can
become pregnant,” and the State had a “compelling . . . interest in minimizing
both the number of [teen] pregnancies and their disastrous consequences”).
Finally, the majority concludes its equal protection analysis by stating
that we as a court should not allow any feelings we may have as judges about
the ordinance to “lead us to forget our constitutional role” because “‘[o]ur
obligation’ is to interpret and apply the law, ‘not to mandate our own moral
code.’” (Quoting Casey, 505 U.S. at 850.) The suggestion is that we, as judges,
should interpret and apply the constitution as it exists, not as we think it
ought to exist. On this point, we agree. However, the constitution — as it has
existed for the past 45 years — includes an Equal Rights Amendment:
“Equality of rights under the law shall not be denied or abridged by this state
on account of race, creed, color, sex or national origin.” N.H. CONST. pt. I, art.
2. Surely the citizens thought they were accomplishing something important
when they changed the constitution. Our “constitutional role” is, therefore, to
interpret and apply Part I, Article 2.
In service of that role, over four decades, we have fashioned an analytical
framework which subjects laws that distinguish on the basis of gender to the
highest level of constitutional scrutiny: strict scrutiny. See Holbrook, 140 N.H.
at 189; Sandra H., 150 N.H. at 637; LeClair, 137 N.H. at 222. However,
perhaps mindful of the State’s obvious failure to present evidence sufficient to
meet the exacting burden of strict scrutiny in this case, the majority strains to
conclude that an ordinance that prohibits women — but not men — from
engaging in certain behavior does not discriminate on the basis of sex, but is,
in fact, gender-neutral. Such an approach is not in service of our
constitutional role: it is an abdication of it. Based upon the record before us,
we conclude that Laconia’s ordinance violates Part I, Article 2 of the New
Hampshire Constitution. We respectfully dissent.
29