The Legal Front

[eyesup]

I was reading on the “Breasts Are Healthy” website and read an article the author had posted titled, “Fort Collins and the Rest of Us: 14th Amendment and Topfreedom”. An interesting report of court actions in the 10th circuit with regard to an ad hoc law passed by Ft. Collins, CO. The city council passed the law seeking to prevent women from being topless in public. The court opinion was written in response to a suit brought by a group of “Free The Nipple” protestors. The intent of the protest was to see how the city would respond. After the city council passed the law they sued the city in federal court.

The article is about the judge’s opinion. Read it here.

The article, opinion and a response to the opinion, by a civil liberties attorney in NYC, describe some encouraging movement on the front of the rights of a citizen to choose how they live. While the woman from Breasts Are Healthy is an activist for topfree rights not nudity, she is in a group that seeks only to be allowed to be left alone peacefully minding their own business albeit, topless.

Her actions and other’s are steps in the right direction. As Larry would say, it’s incremental progress. These are moves on a chess board between those who advocate personal choice and those that prefer to regulate behavior in increasingly heavy handed methods.

What she, and I, also found remarkable was the judge’s observation that “no harm comes from seeing a naked female breast”, he especially pointed out that no evidence was shown that children were being harmed. He also stated that, “I do not accept the notion, as some of those courts have, that we should continue a stereotypical distinction “rightly or wrongly,” or that something passes constitutional muster because it has historically been a part of “our culture.” He asserts that the 14th amendment is violated by such a law.

I do see benefits of maintaining traditions but as he points out that as traditions become outdated the changes that result are uncomfortable for some. Those of us that are affected by change have to adapt. I have had to do that for a few things myself. The alternative would be to retreat to a cave and choose the life of a hermit.

The attorney from NYC lays a possible path to the Supreme Court if events play out the right way. There are encouraging things happening in courts these days.

There is a chance that things might be moving in a way toward a possible chance of a probable non-negative outcome.

Duane

[Greenbare Woods]

There is a chance that things might be moving in a way toward a possible chance of a probable non-negative outcome.

Duane

I hope you are right, Duane.  I don't see anything in the article or decision that applies to men or women below their waist.  However, if human bodies are recognized as a fundamental civil right, then that argument could apply to all parts of all human bodies.

The Judge's dismissal of the sheriff's contention that boobs might distract drivers and cause traffic problems reminded me of an event that happened while I was in college.  One sunny afternoon I was driving down toward the campus sailing club and came to a stopped mess in the 4 lane road.   Traffic was all backed up.  I wondered if there had been a crash or something.  It took 20 minutes of stop and go creep to get down to the sports complex where the sailing club was located.  When I got to the front of the 2 mile backup I found my blond girlfriend slowly meandering toward the sailing club on foot wearing skimpy shorts and top.  Traffic had backed up for 2 miles to get a better look, but nobody crashed.   She was pretty hot on Saturday night too.  ;-)

Bob

[jbeegoode]

There is a chance that things might be moving in a way toward a possible chance of a probable non-negative outcome.

Duane

I hope you are right, Duane.  I don't see anything in the article or decision that applies to men or women below their waist.  However, if human bodies are recognized as a fundamental civil right, then that argument could apply to all parts of all human bodies.....

Bob

I've read that sentence over and over. I'm not so sure about it, Duane

But, I think that I get the rest of the post. And yes, the judge wasn't just addressing the equal protection of the 14th amendment , but that a naked body is not damaging in any way and that IS significant. The way that they wear down the arguments from court to court up the ladder my dilute that, but equality arguments should hold. The state needs an interest in the problem. If there is no problem, then heh, what's with the law? Now, if truth and justice can just override politicians in robes....
This gives precedent.
Jbee

[jbeegoode]

This news makes me realize just how far away body freedom is in the laws. This court case is only a less binding court and still in process. It is in a State that has top freedom already. It is in a federal District that has topfreedom in all but one state. It wouldn’t change much.

 If the law is contested, and gets to the District level it only effects that district and not the rest of the country. Only if it conflicts with other states, then it “may” be heard by the Supreme Court. A plaintiff needs standing in court, just to get the ball rolling.

So, this is unlikely to make any sweeping change. It will take years upon years to do that in court. Even if it is successful, it is hung up on breast and doesn’t liberate the rest of the body. The court cases are likely to water it down with specific questions and keep it an equality breast issue. We probably wouldn’t even see DF walking topfree in public  in Colorado, just feeling more relaxed if she is seen. New York is solidly topfree, most states are topfree, but how many people are regularly use the freedom?

So, that bummed me out a bit, but on the other hand there is a significant value here. A judge has opinioned that it is kinda silly and the state has no legitimate interest suppressing the body. No children are harmed. This opinion is getting around. People are thinking it over. A legitimate respected authority is effectively making the law appear to be a joke. Public opinion is being chipped away in bigger chunks. The arguments are intelligent, thoughtful and the opinion is obvious, and it just ain’t about equality. It is reasonable. “A reasonable person’ might find that” such and such is true for them. This is a respectable reasonable person in robes. Prudes are unreasonable it seems apparent. People don’t want to be seen as unreasonable, so they are more likely to follow his lead. People’s opinions are swayed by such poor intellectual processes. Even conservative politicians like to be reasonable and not have laws that impose unnecessarily.

The issue may not be solved in court in a lifetime, but public opinion can make change. Lots of naked bodies in media will make change and bodies acceptable. Feeling reasonable, and less sexiness in nude images, and frequency as it creates normal, and desire to be right, and respected public figures being honest will make a change. A youth movement and rock and roll music could help. These are things that can make change happen relatively rapidly. The desirability of naked bodies has kept backlash at bay for quite a while, coupled with the identification with reasonability it is powerful. Coupled with the sense of injustice, it is more powerful still. Just look at the great social changes as civil rights and their effect on law. People can be gay, women and men are not held to stereotypes as they once were, race, etc. We all have a body to identify with. It is a friend that deserves justice. Even those disassociated with their bodies can come around to that.

There was a lawyer from another state that was commenting and expected the judge to get flack and that he was being foolish and look foolish among many of his peers who would disagree. Not, a good career move. Politicians in robes. I appreciate this judge.
Jbee

[Greenbare Woods]

So, that bummed me out a bit, but on the other hand there is a significant value here. A judge has opinioned that it is kinda silly and the state has no legitimate interest suppressing the body. No children are harmed. This opinion is getting around. People are thinking it over. A legitimate respected authority is effectively making the law appear to be a joke. Public opinion is being chipped away in bigger chunks. The arguments are intelligent, thoughtful and the opinion is obvious, and it just ain’t about equality. It is reasonable. “A reasonable person’ might find that” such and such is true for them. This is a respectable reasonable person in robes. Prudes are unreasonable it seems apparent. People don’t want to be seen as unreasonable, so they are more likely to follow his lead. People’s opinions are swayed by such poor intellectual processes. Even conservative politicians like to be reasonable and not have laws that impose unnecessarily.
Jbee

Good analysis JBee. This case and its arguments can be cited in other cases.  They won't be binding, but the contention that the state has NO LEGITIMATE INTEREST in regulating and controlling the bodies of individuals is a powerful opinion.   The state could not show that they were preventing harm to anyone in particular by controlling clothing of other people.   And that is a powerful argument because seeing other human beings is inherently NOT HARMFUL to anyone. 

Their "what about the children" falls apart when the court asks "What about the children. How were children harmed?"   The only answer is that children might not be kept ignorant of human bodies if they are allowed to see human bodies.  They would couch it in arguments that children may learn about sex if they see an opposite sex person, but that amounts to the same keeping them ignorant.   And then they have to justify how keeping children ignorant is a necessary benefit.  That's kind of the antithesis of sending children to schools.   And then they have to argue that keeping children ignorant about human bodies is sufficient justification for the state acting to control the body of every citizen.  Other than a judge who is already a PRUDE, it is an argument without legal merit.  "Because I don't want to see naked men" is not a legal argument.   Laws have to be justified by preventing actual harm to some group of citizens. 

The Internet and all the porn, nudity, naked web sites that children and adults see every day and talk about every day is probably making a lot of difference.  Tumblr, Twitter, Flickr, Vimeo, SW, even Facebook (with bluring) now makes the public aware of seeing human bodies every day.  Why, millions of them now are asking, can't I just be naked? 

It will take a court case.  Some man will have to be arrested for being naked and NO OTHER CRIME, and have enough of his own or an advocate's money ($Millions ?) to pursue it as a civil rights case.   The gays had organizations that pushed lawsuits in court after court, year after year.  Nudists need to do that too.  We need to be pushy and not hidden.   Too many nudists are behind the public curve and still just want to go hide behind a fence somewhere. 


Bob

[JOhnGw]

Sometimes I wonder about the description "land of the free."
As far as body freedom the DDR did better.

*  DDR =  Deutsche Demokratische Republik or "East Germany" as we used to call it.

[Greenbare Woods]

Sometimes I wonder about the description "land of the free."
As far as body freedom the DDR did better.

*  DDR =  Deutsche Demokratische Republik or "East Germany" as we used to call it.

You are right there John,

[jbeegoode]

I surmise that there may be another powerful legal argument that hasn't been explored in the courts. To accompany what Bob mentioned and what this judge said, I think the issue of religious freedom and separation of church and state is important and plausible.  The former show us that the law stands on weak legs. I believe that the additional weight would topple it.

For many, nudity is an integral part of their spiritual concept and practice. The legal definition of church, spiritual and religion, once you get past what the definition that the IRS accepts as reasonable, is extremely broad. Atheism and multi-belief systems are even protected. The only basis for the state to override a religious practice is when it affects others freedom and well-being. It came from the admittance of Utah as a state way back when. They had to give up polygamy in the mix. I debate whether the state has any business even doing that. It has been the crappy basis to repress religious expression since then, like all of the political hoopla in 1850 something was necessarily legally just.

We have a long standing agreement to avoid discussion of religion here. I would advise that this discussion not get into religion, but stay in the realm of religious tolerance and the law under the obligation of the U.S. Constitution’s first Amendment.

So, pagan practices often require being skyclad. Renunciates, Sadhus, renounce clothing and all worldly possessions. For others, awareness is key to the higher states and continual nakedness is a key to awareness. Even figures from the Bible were told to go naked for a couple of years. Today they would be arrested or perhaps treated like Steven Gough. The state hasn’t the right to impose on any of these. Further, because the current social mores and the supporting laws are based in some Christian ideologies, it effectively makes the imposition of a state religion. This isn't human sacrifices that we are talking about.

The protection is so broad as to protect spirituality and that is passed that of organized religion.  All of it is too dear, personal and sacred to be casually pushed aside by any common social more or preference. When I walk in the woods and feel a greater sense of oneness of the universe, or a sense of wonder in something so much more than myself, that is protected by the Constitution. When I augment my worldly sense of these things in practice by doing this naked, it is every bit as valid and more so. If my Hindu, or Buddhist leanings bring my spiritual focus on achieving a higher consciousness, or an enlightenment then that is based in religion and it is religious practice. Awareness is the key, and being in the moment, to attain a relationship with a God, or a higher state of bliss is in many spiritual backgrounds and is as religions practice. I have just spoken of this as “there are those that do” but this has been very close to what I have been practicing for over ten years. I don’t have a physical legally registered church, so I don’t have standing and that is not Constitutional, either.

I was a part of the Universal Unitarian church for a few years. It had an atheist for a minister, and we would celebrate Christian, Hindu, Pagan and other forms of belief and culture. That is an accepted legal religion going back centuries.

Our spiritual sweat practiced many religious ritual and liturgies, too, just like that legal UU church did. We gathered at certain times. We had community and support for each other, just like any other church provides.  That sweat should qualify as a church and it was discussed several times through the years.  It also held and practiced a distinct importance of nudity and health as being integral to a spiritual practice in common with all of us.

I think that it would be possible to challenge the status quo with this legal argument, liberating one region at a time. I don’t think that there could be a legal defense of the statute laws oppressing the naked body with all of this combined.

It would require a church tax exemption status, a place (a sweat/sauna) to meet and some written guidelines of belief and practice.  It would require a regular meeting for spiritual practice. This is all because of the IRS and the Constitution muddling up the waters. Then, it would require funding or a pro bono. When I had a lawsuit that went on a constitutional basis to the 7th court of Appeals it cost $350,000 and several years. It would require an arrest and a defendant of the established church. Then the state would have to pursue the charges passed the higher courts as has been described and there’s no guarantee that they would do that. It would make nudity for a spiritual purpose legal locally and provide guidelines for further action elsewhere.

I just ponder, “Would it work?”
Jbee

[Greenbare Woods]

Well, Jbee, you make an interesting argument but I fear that the religious claim has problems in the US.  There isn't any large organized church which requires public nudity.  Some small religious groups have nude rituals, including some Christians who are also nudists, but they don't have an organized established religion based on PUBLIC nudity.

You would be likely to win freedom to be naked inside your sweat lodge, but not on the street.  It would have to come from getting arrested inside the lodge.  If the public wasn't interested the demand for public nudity would be turned down.

I think the general argument that public laws have to have a valid basis of preventing actual demonstrable harm is the best chance.  That, and a general public acceptance of nudity not being a serious problem. Get a few judges who spend nights sharing naked photos on web sites and it might work.

Bob

[jbeegoode]

No church? Then create one. The spiritual and religious background already is there. It is old and established as a concept. That should be all that is needed, but a legal church is probably the way to go. It is only a matter of converting it into legal form and having a few to join officially as an organization. It doesn't matter how many. I'm talking about what you do that may fall into public and the right to practice in public. You can pray in public, anywhere. Nudity is prayer. For some, life is a prayer. Being nude is a prayer, an act of faith, devotion, a search for a higher something personal. A new Christian Bible based church springs up everyday and is afforded all rights. The practice is the issue. The coloring is just dressing to a higher sense of purpose. Buddhism comes in many flavors, and it has no God. It needs little and many sects only provide guidleines. It talks about what is, not how to get there. The different Buddhist ways are religions called Buddhist.

Some do, but are illegal in this country, have an organized established religion based on PUBLIC nudity in significant part. I don't think that a previous religion exclusively focused on nudity is a requirement to the establishment of a church, whose practices do not harm anyone. Not even the practice of public nudity has to have precedent. Quakers protested nude 300 years ago. If I'm walking around in my yard, in a public park in a forest, for a clear religious experience, then I should not be burdened with the threat of arrest and persecuted. All of that and more is spiritual practice. Walking down the street focused on the now is a religious practice.

This is good. Let's talk Constitution and what may be weird for some, but is serious religious practice for others.
Jbee

[eyesup]

I hope you are right, Duane.  I don't see anything in the article or decision that applies to men or women below their waist.  However, if human bodies are recognized as a fundamental civil right, then that argument could apply to all parts of all human bodies.

True, she isn't advocating nudity. She isn't even advocating toplessness, which is nudity of the upper body. To me she says she should have the same rights as men. Don't make it an argument of nudity, but rights. But it's a step in the right direction.

What caught my attention was the judge's choice to reject as harmful the natural sighting of naked female breasts. His point that the breast is the 1st thing we all see was great!

I've read that sentence over and over. I'm not so sure about it, Duane.

Oh good, Jbee! I was attempting to be as vague and elliptical as I could.  'cuz ya never know with the courts these days!

With the small steps toward a mere topless issue, just try to keep in mind the position of anyone in contention for their civil rights. Small steps forward are at least forward steps. Any progress is noted and welcome.

Also remember, when kicking off the traces or kicking over the tables, dumping too much in the lap of those opposed will result in a more visceral reaction. Aim high but keep your eye on the prize.

Duane

[eyesup]

All I’ll say with regard to the religious aspect brought up here, well I certainly didn’t see that coming.

I posted the link because I was encouraged by the judge that seems to have his ‘feet planted firm on the ground’ and takes his direction from the Constitution. I hadn’t imagined a religious slant to this, nor do I think Ms. Covington, here and here, does either. Although I could be wrong. I haven’t read all her posts.

She seems to be focused on the actual constitutional and legal ramifications of having discriminatory laws on the books and being enforced as written. So far what I have read in her writings indicates she is offended by the legislation that makes this possible. She has written in other posts on her site about the police and how, for the most part, they show her moral support but are obligated to enforce the law. She sees their position, understands it and doesn’t take it personal. Unless they do. So far I haven’t read anything she has written that is rooted in religious freedom. I am not saying that religious freedom isn’t connected peripherally just that there re many personal freedoms, one of which is religion.

She also takes to task anyone that makes law, judgement or rulings based on a moral code that seems to be as malleable as it is vague. One which is not defined constitutionally. Scroll down to the replies and read her response of  Apr. 22, 5 days ago, here is a portion;

       As to the substance of your message, I also find it amazing how lawmakers don’t understand
       how their words sexualize young girls. They say we have to protect girls from the men who think
       of them in sexual terms and I always think… It’s you doing this! You made this law because you
       see 11 year old girls as sexual objects. Grrr.

It's what is going on in the minds of legislators that is driving her to distraction.

With regard to the religious tack, personally I would steer clear of that. But, whatever floats ‘yer boat. Trying to abide by the definition of church on LegalZoom ties me to a definition written by bureaucrats and accountants. Not one of mine own.

In order to make a case for a religion you must decide if you want to take advantage of the tax relief of Section 501(c)(3) of the Tax Code. Barring that, the establishment of a religion must happen before the IRS will acknowledge a history in order to organize a church. If you are OK taking a pass (sic) on the tax break of complying with the IRS, then it’s Katy Bar the Door.

On Legal-Dictionary.com, religion is defined based on a ruling by the Supreme Court.

ThoughtCo.com approaches religion from the philosophical aspect.

The SCOTUS holds to a broad definition, so establishing a religion is easier. Satisfying the IRS is another matter. The whole point behind government defining what is a religion or church is most likely an attempt to slow the formation of a church or religion ad hoc to bypass laws. Abuse of laws will happen, the government can only slow it down, not stop it.

For me I do not hold nudity to be integral to my faith. It has become one of the ways I recognize God in my life and in nature. I am hesitant to adopt anything defined by the government in order to validate my faith, which can, in turn, be taken from me by that same government.

In this discussion I would defend anyone’s right to religious choice based on what is stated in the Constitution. The right to wear any clothing of choice should be as firmly defended as the right to wear nothing. If codified laws violate the Constitution they should be rescinded no matter your state of dress. There is nothing in the Constitution about clothes.

Duane

[jbeegoode]

Well, Jbee, you make an interesting argument but I fear that the religious claim has problems in the US.  There isn't any large organized church which requires public nudity.  Some small religious groups have nude rituals, including some Christians who are also nudists, but they don't have an organized established religion based on PUBLIC nudity.

You would be likely to win freedom to be naked inside your sweat lodge, but not on the street.  It would have to come from getting arrested inside the lodge.  If the public wasn't interested the demand for public nudity would be turned down.

I think the general argument that public laws have to have a valid basis of preventing actual demonstrable harm is the best chance.  That, and a general public acceptance of nudity not being a serious problem. Get a few judges who spend nights sharing naked photos on web sites and it might work.

Bob

Another thing with the church idea is that if it were to be found a guaranteed Constitutional liberty, then it would only be available for members of that church.

I'm figuring that that favorable court ruling on religious grounds would be the crack in the dam. The issue of viewing nudity being safe and not with a public detriment, not a compelling interest of the state, would have to come up and the court forced to address it, along with the religious freedom issue. The two issues are hand in hand.

The churches rights would only be the vehicle toward a logical conclusion, eventually. While what is safe, or a community standard varies from place to place, court to court, but the government has little option but to respect religious and spiritual systems, absolutely not judge them, and not tamper with them as strictly as can be. Religion is an issue that would move through the courts and become a more national standard more quickly. There is lots of grey and perceived as established, that community standard (which is debatable whether it is valid) is something that can be shoved down anyone's throat. It even sometimes overrides the Constitutions protections of minority positions from the majority, these days. The strength of this position that I'm taking is that nobody messes with religion. It is sacred stuff right, left, and mostly in between. 

[jbeegoode]

Believing the context of the Topfree and Ft. Collins issue limited, I'm attempting to broaden, strengthen the conversation as the topic title states, in the courts. How do we get our rightful freedom out from under the current injustice. How do we free the body. So, I decided to bring up this something, which I have been pondering for a few years, and seek some input and perk some thought.

Eyesup, I read the definition article. It comes across to me as a western concept of religion. Many eastern religions may or may not be concerned with mystical beings. The point of them tends more toward the gaining of enlightenment, or a oneness with the nature of the universe, higher states, etc. The states and the universe are often called as God, a universal order, or deification is given to define aspects. Some Buddhist sects come out of the Hindu world with deities, some without. All Buddhist are spiritual and legally defined as religion. Not just a world view, or identity as defined in the article, but more universe and other concepts of the nature of that universe. Lots of room there, but all religious. I don't think that that article's definition would be broad enough for a court or the whole world.

The court link that you provided didn't work, for some tech reason. American government and religion can be understood simply. Because much of the country was settled because of religious persecution elsewhere, there was a particular tradition culminating in the 1st Amendment to the Constitution, separation of church and state. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

We are not required to pray only in buildings. We are not required to act as we have been taught only behind doors. We were given outs on the draft as conscientious objectors for example. We can walk down the street as a poster label for our beliefs. We can tell it as we see it. We can perform rituals in public, pray before a baseball game, or place symbols in our front yards. If turning the other cheek, or helping an old lady across the street to feed her is an act of spiritual, or religious sense, then seeking awareness as a key to divination by exploring the world nude to heighten that awareness is too. If establishing a building as a sacred space and communing with God is religion, then walking in the forest on top of a mountain nude is, too. If a nun or monk will renounce what they have, then it is a choice to renounce the whole kit with the same dignity. All of these fall into the public realm. The government as no place, and is severely restricted from interfering. If all of these are not protected, then all religion is not protected. If some are protected and others are not, then the government has established a state religion. So, if there is sincerity, nude activities, even in public are protected. The only time that religion has been curbed, that I'm aware of, was the polygamy question way back in 1850 something about a political question of becoming a state, and the more recent peyote church. There they managed to convince the supreme court, that there was some danger to people in the practice of religion. Here, we have no danger from unclothed bodies and it is the states job to show just how and who is getting hurt and that it actually needs to protect them. Again, it isn't human sacrifice.

Prosecution consistently states that government can enforce community standards and it has worked. This Ft. Collins case could only assure equality and maybe the freedom of the top half of the body. It doesn't liberate naturists. The incriminate of progress just stops, like the fence at the boundary of a factory farm resort.

Religious freedom has the potential to knock down all existing anti-nudity laws, requiring a redress. The issues of viewing the naked body as not dangerous, but natural, is included and established in a legal argument in the ruling. Then, the law and opinion of the court would state that it has found that viewing the naked body is not harmful. The state would need to find a new reason for these ridiculous unjust laws.

 There are no anti nudity laws for example in Kansas, but do you see naked people walking down the street? One guy in dozens of years. Most states are topfree, but topfree is not fashion. It wouldn't change much. It would allow a person to have no fear of prosecution for being seen changing, planting a garden, accidentally being amiss of breaking a silly social more, or communing with nature in a most effective natural way. It would also allow a person to practice their spiritual beliefs, or explore these ideas freely.
Jbee

[jbeegoode]

Here is a pretty good link to the legal issue of religion, establishment clause and free exercise. Appaerntly, I was mistaken about the peyote case. All I know is what I read in the paper.
https://constitutioncenter.org/interactive-constitution/amendments/amendment-i
https://constitutioncenter.org/interactive-constitution/amendments/amendment-i/the-free-exercise-clause/interp/32
https://constitutioncenter.org/interactive-constitution/amendments/amendment-i/the-establishment-clause-hamilton-and-mcconnell/interp/31
There's more there, if anyone is interested. All pretty basic stuff.
Jbee