HomeMy WebLinkAbout2016CV1308 - FTN - FORT COLLINS V. CITY OF FORT COLLINS - 050 - PLAINTIFF'S RESPONSE TO DEFENDANT'S HEARING BRIEF1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-1308
FREE THE NIPPLE – FORT COLLINS, an unincorporated association,
BRITTIANY HOAGLAND, and
SAMANTHA SIX,
Plaintiffs,
v.
CITY OF FORT COLLINS, COLORADO,
Defendant.
PLAINTIFFS’ RESPONSE TO DEFENDANT’S HEARING BRIEF
Plaintiffs, by and through their attorneys, David A. Lane and Andy McNulty, hereby file
this response to Defendant’s Hearing Brief and state as follows:
1. Post-Virginia “real” differences cannot justify discrimination based on sex-stereotyping.
The Court’s recitation of the current state of equal protection jurisprudence in its Order on
Defendant’s Motion to Dismiss [Doc. 37] is correct. The clear holding of United States v.
Virginia, 518 U.S. 515, 531 (1996) (and its precedential impact) is that differences between the
genders cannot be used “to create or perpetuate the legal, social, and economic inferiority” of one
sex, however, they may be used to “compensate” one sex for the disabilities or inequities that that
sex has historically suffered. Id. at 531. Importantly, Virginia held that sex stereotyping by the
state is impermissible even in the context of “real” differences between the sexes. Since Virginia,
the Court has expanded and reaffirmed this jurisprudential shift.
1
1
See Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination, 85
N.Y.U. L. Rev. 83 (2010).
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 1 of 15
2
In Nguyen v. INS, 533 U.S. 53 (2001), both the majority and dissent agreed that if the
statute had reflected or reinforced sex-role stereotypes, it would have been unconstitutional - even
in a case such as this, which involved “real” differences. Although the Court in Nguyen viewed the
sex-based citizenship statute as a simple reflection of biological realities, it did not contend that
biological differences trump or preclude anti-stereotyping analysis. Indeed, the Court held that the
statute passed constitutional muster only after declaring (repeatedly) that it did not manifest sex
stereotypes. Id. at 68-70. Thus, although the statute in Nguyen met a different fate than the statute
in Virginia, the Court did not repudiate the doctrinal developments made in the earlier case; in
fact, it reiterated the understanding that sex stereotyping by the state is impermissible even in the
context of “real” differences.
Since Nguyen, the Court has reinforced its departure from the “real” differences doctrine it
more fully elucidated in Virginia. In Nevada Department of Human Resources v. Hibbs, 538 U.S.
721 (2003), the Court affirmed that there are biological sex differences between men and women,
focusing specifically on pregnancy and noting that men and women are differently situated in
relation to pregnancy (and that giving birth disables mothers in ways that fathers simply do not
experience). The Court cautioned using these “real” differences to implement laws that look as
though they are benefitting women, but that are in reality simply based on sex-stereotypes.
Particularly, the Court highlighted the potentially invidious discriminatory nature of parental
leave. The Court noted “[p]arental leave for fathers … is rare,” and even “where child-care leave
policies do exist, men … receive notoriously discriminatory treatment in their requests for such
leave.” Id. at 731. Women frequently encounter the opposite form of discrimination: They are
encouraged to take “extended” maternity leave, and the fact that they take the leave, or simply the
assumption that they will, is then used to justify sex discrimination in hiring, retention, and
promotion. In fact, the Court observed that throughout American history, “denial or curtailment of
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 2 of 15
3
women's employment opportunities has been traceable directly to the pervasive presumption that
women are mothers first, and workers second,” and that “this prevailing ideology about women's
roles” has justified substantial “discrimination against women when they are mothers or mothers-
to-be.” Id. at 736. The Court signaled that utilizing these “real” differences between men and
women to justify laws that ultimately harmed women would violate the equal protection clause,
reaffirming its holding in Virginia.
2. Section 17-142 is a discriminatory classification based on sex-stereotypes.
Plaintiffs dispute that there are “real” differences that could rationalize the criminalization
of the female breast imposed by Section 17-142. See Reena N. Glazer, Women's Body Image and
the Law, 43 Duke L.J. 113, 130 (1993) (noting that, from a physiological perspective, male breasts
have the same erotic potential as women’s). However, even accepting as true Defendant’s claim
that there are “real” differences between the male and female breast that could rationalize
criminalizing exposure of the female breast while not criminalizing exposure of the male breast,
the criminalization of exposure of the female breast is based on sex-stereotypes and, therefore, it
cannot pass muster under the Court’s evolved equal protection jurisprudence post-Virginia.
The evidence, both presented at the hearing and historically, supports that the
criminalization of female toplessness, but not male toplessness, is based on sex-stereotypes. Just
like extended pregnancy leave in Hibbs, the sexualization of the female breast has long been the
epicenter of sex discrimination in the United States. For instance, there is a long history of sexual
harassment in the workplace wherein women’s bodies are sexualized. See Meritor Savings Bank v.
Vinson, 477 U.S. 57 (1986); Jenson v. Eleventh Taconite Co., 824 F.Supp. 847, 889 (D. Minn.
1993); EEOC v. Blue Ox Rest., No. 82 C 1985, 1986 U.S. Dist. LEXIS 29263, at *43 (N.D. Ill.
Feb. 14, 1986) (finding that the female employees were sexually harassed by unwanted “rubbing
[of] their breasts”). Further, there is a long history in the United States of sexualizing the female
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 3 of 15
4
breast and blaming women for men’s unwanted sexual advances based on their appearance. See
Vernon R. Wiehe, et al., Intimate Betrayal: Understanding and Responding to the Trauma of
Acquaintance Rape 32 (1995); Lynda Lytle Holmstrom, The Victim of Rape: Institutional
Reactions 39 (1978).
Globally, however, there is little history of female breasts as sexual objects. Dr. Roberts
testified at the hearing that the sexualization of the breast is a uniquely western and American
phenomenon (it is important to note that her testimony on this fact was unrebutted); historical and
scientific sources support her testimony. Marilyn Yalom, A History of the Breast, 3 (1997) (noting
that in many cultures in Africa and the South Pacific, where women have always gone with their
breasts uncovered, the breast has not taken on a predominantly erotic meaning and that the
assumptions about the female breast’s inherent sexuality taken for granted in the United States
“prove especially arbitrary when we adopt a historical perspective”).
2
Given that the sexualization
of the female breast is based purely on sex stereotypes developed in American culture, any “real”
differences between the male and female breast cannot justify the discrimination enshrined in
Section 17-124 based on the Supreme Court’s evolved equal protection jurisprudence. Ultimately,
“‘[i]nherent differences’ between men and women, we have come to appreciate, remain cause for
celebration, but not for denigration of the members of either sex or for artificial constraints on an
individual's opportunity.” Virginia, 518 U.S. at 533. Section 17-142 does not celebrate any
differences between men and women; it serves only to denigrate women.
3. Defendant cannot justify its discrimination.
2
Defendant, in its Hearing Brief, cites Wikipedia as proof that breasts are inherently sexual
organs. Plaintiffs respectfully ask that this Court not rely on a source that is neither scientific nor
reliable. See The Colbert Report, The Word-Wikiality, COMEDY CENTRAL (July 31, 2006),
http://www.cc.com/video-clips/z1aahs/the-colbert-report-the-word---wikiality.
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 4 of 15
5
At the hearing, Defendant offered the same justifications that were utilized to justify
discrimination against African-Americans in the 1950s and 1960s, Brown v. Board of Education,
347 U.S. 483 (1954), and gays and lesbians in the 1980s and 1990s, Romer v. Evans, 517 U.S. 620
(1996): namely, that barring discrimination will disrupt the public order and that children will
suffer harm as a result. The reasons Defendant advances were also proffered to argue against the
admission of women to state universities in the 1950s. See Virginia, 518 U.S. at 537-38 (“Debate
concerning women's admission as undergraduates at the main university continued well past the
century's midpoint. Familiar arguments were rehearsed. If women were admitted, it was feared,
they would encroach on the rights of men [and] there would be new problems of government,
perhaps scandals[.]”) (quotations omitted)).
This Court must determine whether Defendant’s justifications are “exceedingly
persuasive.” Id. at 533. In doing so, Defendant must not only show that the government interests
allegedly served by Section 17-142 are important, but Defendant also must show that Section 17-
142 advances these interests. Id. at 535 (“‘benign” justifications proffered in defense of categorical
exclusions will not be accepted automatically; a tenable justification must describe actual state
purposes, not rationalizations for actions in fact differently grounded”). There is “a strong
presumption that gender classifications are invalid[.]” J.E.B. v. Alabama ex rel. T.B., 511 U.S.
127, 152 (1994) (Kennedy, J., concurring). “The burden of justification is demanding and it rests
entirely on the State.” Virginia, 518 U.S. at 553.
3. Fort Collins’ interest in public order (presented at the hearing without supporting
empirical evidence) cannot justify the facially discriminatory Section 17-142.
The public order arguments advanced by Defendant cannot justify laws that discriminate
on the basis of sex, including Section 17-142, because Defendant has not established that: (1)
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 5 of 15
6
public order is a valid governmental interest in Fourteenth Amendment jurisprudence and (2)
Section 17-142 advances public order in any way.
First, Defendant has couched a government interest in morality in the terms of “public
order[,]” arguing that Section 17-142 would help maintain public order by preventing outrage at
such a violation of community norms. This is not a compelling government interest that can justify
a discriminatory law under the current Fourteenth Amendment jurisprudence. “[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[.]” Lawrence v. Texas, 539 U.S. 558,
577-78 (2003) (quoting Bowers v. Hardwick, 478 U.S. at 216 (Stevens, J., dissenting)) (further
stating that “neither history nor tradition could save a law prohibiting miscegenation from
constitutional attack”); see also Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745-46 (5th Cir.
2008) (holding, in a challenge pursuant to the Fourteenth Amendment, that “[t]hese interests in
‘public morality’ cannot constitutionally sustain the statute after Lawrence”); In re Kandu, 315
B.R. 123, 148 (Bankr. W.D. Wash. 2004) (“Basing legislation on moral disapproval of same-sex
couples may be questionable in light of Lawrence.”). The argument from public order is simply a
modified reiteration of the bare public morality argument. It is an argument from popular
prejudice. The United States Supreme Court confronted the public order argument, in a racial
context, more than two decades ago. In Palmore v. Sidoti, 466 U.S. 429 (1984), in which custody
of a white child was taken away from a mother because she married an African-American man,
the Court unequivocally enunciated the principle that while the Constitution must live with
prejudice, it cannot ratify it. Using popular antipathy against a group to justify policies that
encourage and institutionalize that antipathy is the worst sort of vicious circle and would -- if
generalized to racial, gender, or religious groups -- throw the country back to the days of
American apartheid.
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 6 of 15
7
Defendant’s argument at the hearing regarding the unwanted exposure to female
toplessness (and such exposure’s offense to a majority of the town citizen’s sensibilities) has been
made previously and rejected by the United States Supreme Court in the context of the Fourteenth
Amendment’s protections. See Loving v. Virginia, 388 U.S. 1 (1967); Romer, 517 U.S. at 629;
United States v. Windsor, 133 S.Ct. 2675 (2013); Obergefell v. Hodges, 135 S.Ct. 2584 (2015). In
fact, the Supreme Court has consistently refused to burden individual rights out of concern for the
protection of “unwilling recipients.” See e.g., Carey v. Population Servs. Int’l, 431 U.S. 678, 700-
02 (1977); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71-72 (1983); Cohen v. California,
403 U.S. 15, 21 (finding the burden falls on the viewer to “avoid further bombardment of their
sensibilities simply by averting their eyes”); Boos v. Barry, 485 U.S. 312, 322 (1988) (holding
there is a “longstanding refusal to [punish speech] because the speech in question may have an
adverse emotional impact on the audience”); Madsen v. Women’s Health Ctr., 512 U.S. 753, 771-
72 (1994) (striking down provision that banned displays of images observable to those inside
abortion clinic); National Socialist Party v. Skokie, 432 U.S. 43 (1977). Moreover, every
legislative attempt to provide equality for all citizens carries with it the price of alienating those
who oppose such equality. Affording African-Americans the ability to secure decent housing or
public accommodations meant that white racists were more likely to face situations in which they
had to associate with people they hated. In the context of gender, the Supreme Court has found
that the state's compelling interest in equality of the sexes outweighs the incidental burdens placed
on the associational and expressive freedoms of those who opposed such equality. See New York
State Club Ass'n v. City of N.Y., 487 U.S. 1 (1988); Board of Dirs. of Rotary Int'l v. Rotary Club of
Duarte, 481 U.S. 537 (1987).
The Supreme Court has specifically held that, in the context of the Fourteenth Amendment,
discrimination cannot be justified by relying on private biases (which underlie Defendant’s
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 7 of 15
8
asserted interest in maintaining “public order”). In Palmore, 466 U.S. at 429, a white mother who
had married an African-American man was stripped of the custody of her children, based upon the
harm state officials believed would come to the children from societal disapproval of interracial
marriages. Id. at 430-31. The Supreme Court, without disputing that children of interracial
marriages might suffer social prejudice, unequivocally refused to permit that prejudice to be used
as a reason for removing the children from their mother's custody. Id. at 432. The now famous
maxim of Palmore is that “private biases may be outside the reach of the law, but the law cannot,
directly or indirectly, give them effect.” Id. at 433. This principle was extended to gender
discrimination in J.E.B. v. Alabama ex rel T.B., wherein the Court used the same reasoning to hold
that the equal protection clause forbids peremptory challenges to jurors on the basis of gender. 511
U.S. at 130-31. The Court held that intentional gender discrimination is unconstitutional where
“the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes
about the relative abilities of men and women.” Id. at 131. Accepting at face value Defendant’s
assertions that the maintenance of public order would allow private biases to justify discrimination
in contravention of Supreme Court precedent.
Secondly, at the hearing, Defendant presented no empirical data regarding the negative
effects on the public order that would be caused by enjoining Section 17-142. When public order
is used as a justification for enacting a law with no empirical evidence supporting it, there is no
principled way to distinguish bare moral interests from invidious prejudice. Without the
requirement that a moral interest be reasonably connected to some empirical effect on the public
welfare, Defendant’s interest in public order is nothing more than an aggregation of private biases
dressed up in righteous rhetoric. The most compelling and perhaps obvious illustration of this
point is found in the “miscegenation” laws that once existed in many states. Those laws were a
reflection of deeply held beliefs about the immorality of interracial sexual relationships. Often,
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 8 of 15
9
those moral beliefs were cast in terms of public order. In Loving, however, the Supreme Court,
unanimously and definitively repudiated any legitimate government interest in such laws. At issue
in Loving was a Virginia statute that prohibited so-called interracial marriages. Loving, 388 U.S. at
1. The plaintiffs in Loving were Mildred Jeter, an African-American woman, and Richard Loving,
a white man, who were married in the District of Columbia and then returned to reside in Virginia.
Subsequently, Jeter and Loving were charged and convicted of violating Virginia's ban on
intermarriage. In considering Jeter and Loving's challenge to Virginia's statutory ban on
intermarriage, the Court found that there was “patently no legitimate overriding purpose” for the
classification at issue. Id. at 11. Because of the invidious nature of the classification, the Virginia
statute was struck down. Id. at 12; see also Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U.S. 520, 547 (1993) (invalidating under the Free Exercise Clause a municipal ordinance directed
against a minority religious practice deemed “inconsistent with public morals, peace, or safety”
when the law was under-inclusive as to both peace and safety). Defendant’s justifications for
Section 17-142 suffer the same infirmary as the justification raised in Loving: they are backed by
nothing more than personal predilections that lend themselves to invidious discrimination.
There is nothing distinguishing the moral disapproval, in this instance couched as a
concern about upsetting “public order,” that justifies laws discriminating on the basis of sex, like
Section 17-142, from laws, like the one in Loving, that discriminate on the basis of race;
Defendant has presented no evidence that its assertions that Section 17-142 would upset the public
order have any empirical basis At the hearing, the instinctive response of Defendant, and the
Court, was that discrimination on the basis of race is irrational while discrimination on the basis of
sex is not. That response, however, begs the question. The point at issue is why racial
discrimination is irrational, even when supported by centuries of the strongest and most intensely
felt moral convictions of a large majority of the public, but discrimination on the basis of sex is
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 9 of 15
10
rational. In fact, the reason why racial discrimination is generally considered irrational and
invidious is that laws that discriminate on the basis of race inflict considerable harm and realize no
discernible benefit to the public welfare. The same can be said of Section 17-142. Defendant has
presented no empirical evidence that Section 17-142 provides benefit to citizens of Fort Collins.
Plaintiffs, on the other hand, presented evidence of the harms imposed on themselves, other
women in Fort Collins, and society by the continued discrimination written into Section 17-142.
Ultimately,
[m]oral disapproval of this group, like a bare desire to harm the group, is an interest
that is insufficient to satisfy rational basis review under the Equal Protection
Clause. Indeed, we 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, 123 S. Ct. 2472, 2486 (2003) (O’Connor, J., concurring)
(citing Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973); Romer , 517 U.S. at 634-
635). Plaintiffs ask this Court to reject Defendant’s “public order” justification for Section 17-142
as an invalid government interest. However, even assuming “public order” is a valid justification
for discrimination; Section 17-142 does not advance this interest.
4. Section 17-142 does not protect children.
The second justification advanced by Defendant for the discrimination enshrined in
Section 17-142 was also utilized by the defendants in Brown and Romer: namely, that children
will suffer if discrimination is no longer tolerated. See Evans v. Romer, No. 92- CV-7223, 1993
WL 518586, at *2 (Colo. Dist. Ct. Dec. 14, 1993) (enumerating state's asserted compelling
interests in state constitutional amendment invalidating all existing and future gay rights
ordinances as, inter alia, “promoting the physical and psychological well-being of our children”).
Like in Brown and Romer, the evidence presented at the hearing did not illustrate that the interests
of children are served by discrimination. The only evidence presented at the preliminary injunction
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 10 of 15
11
regarding children’s exposure to nudity illustrates that there are no negative effects for children
who view nudity and there may be, in fact, positive effects on children who view non-sexual
toplessness (like the toplessness Plaintiffs wish to engage in). Dr. Roberts testified as much, and
her expert testimony was unrebutted by Defendant. See Paul Okami, et al., Early Exposure to
Parental Nudity and Scenes of Parental Sexuality (“Primal Scenes”): An 18-Year Longitudinal
Study of Outcome, Archives of Sexual Behavior, Vol. 27, No. 4 (1998).
Further, Section 17-142 enshrines gender discrimination, which has a negative effect on
children as evidenced by Dr. Roberts’ testimony at the preliminary injunction hearing. Enshrined
gender discrimination has a particularly negative effect on young girls, who are astute in
recognizing discrimination and feel its effects more dramatically. See Cristina Spears Brown,
Children’s Perceptions of Gender Discrimination, Developmental Psychology, Vol. 40(5), Sep.
2004, 714-726. Not only does Section 17-142 fail to advance a purported interest in protecting
children, it may, in fact, harm them.
5. The enhancement of traffic safety is not served by the gender-based distinction in Section
17-142.
Defendant raised the justification that the City’s interest traffic safety is served by Section
17-142 at the hearing through the testimony of Jeff Mihelich, the Fort Collins’ Deputy City
Manager. While traffic safety is certainly a legitimate government interest, there is no evidence
that this interest is advanced by Section 17-142’s discrimination. The Supreme Court has found
that even statistically significant evidence that a gender-based regulation would affect traffic
safety could not justify sex-based discrimination when it would only result in a 2% reduction in
traffic violations. See Craig v. Boren, 429 U.S. 190, 201-202 (1976). At the hearing, Defendant
presented no empirical evidence at the hearing that Section 17-142 would have an effect on traffic
safety, let alone a statistically significant effect of 2% on traffic safety. In fact, the City’s witness
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 11 of 15
12
who testified that traffic safety would be compromised by the appearance of topless women at
public places conceded that a scantily clad woman standing adjacent to a roadway, who was in
compliance with Section 17-142, would have the same negative effect on traffic safety as a topless
woman. Section 17-142 does nothing to further the City’s asserted interest in traffic safety.
3. Fort Collins has no legitimate interest in regulating the personal dress of its female
citizens at large.
Former Justice John Paul Stevens, while sitting as a circuit judge on the Seventh Circuit,
noted that blanket restrictions on personal dress and grooming are readily be condemned as
unconstitutional, stating
We do not have a case in which the sovereign insists that every citizen must wear a
brown shirt to demonstrate his patriotism. Fortunately, intervention of the federal
judiciary has not been required during the brief history of our Republic in order to
avoid intolerable instances of required conformity like that following the Manchus'
invasion of China in 1644, or the official prohibition of beards during the reign of
Peter the Great.
Miller v. Sch. Dist., 495 F.2d 658, 665 n.25 (7th Cir. 1974). Other courts have acknowledged that
an intrusion into the personal rights of citizens’ dress, like the one imposed by Section 17-147,
cannot withstand even rational basis review.
There is and can be no authority in the state to punish as criminal such practices or
fashions as are indifferent in themselves, and the observance of which does not
prejudice the community or interfere with the proper liberty of any of its members.
No better illustration of one's rightful liberty in this regard can be given than the
fashion of wearing the hair. If the wearing of a queue can be made unlawful, so
may be the wearing of curls by a lady or of a mustache by a beau, and that state
may, at its discretion, fix a standard of hair-dressing to which all shall conform.
The conclusive answer to any such legislation is, that it meddles with what is no
concern of the state, and therefore invades private right.
De Weese v. Palm Beach, 812 F.2d 1365, 1369 (11th Cir. 1987) (quoting Ho Ah Kow v. Nunan, 5
SAWY. 552 (C.C.D. Cal. 1879)); see also Lansdale v. Tyler Junior Coll., 470 F.2d 659, 663 (5th
Cir. 1972) (en banc) (striking down a junior college regulation prescribing the length of hair for
adult college students as unconstitutional).
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 12 of 15
13
In De Weese, the Eleventh Circuit struck down as not rationally related to a legitimate
government interest an ordinance that forbid men from being topless in a beachside town. The
interests asserted by the town were “maintaining the [t]own’s identity, history, tradition, and
quality of life.” Id. at 1367. The Court found that such an interest was “a mere circumlocution for
enforcing the town fathers’ view of the proper fashion for personal dress” and “the town fathers’
distaste for the personal dress of [the plaintiff]... is simply not a legitimate government interest.”
Id. at 1368. In reaching its result, the Court “found no case that sustained, or even addressed, the
authority of a state or municipality to regulate the dress of its citizens at large.” Id. The Court
ultimately held that “the Town's interest in regulating the dress of its citizens at large, in the form
of prohibiting male joggers from appearing in public without a shirt, is so manifestly weak that” it
could not withstand even rational basis analysis. Id. at 1369. Such a drastic and sweeping
prohibition, like the one in De Weese, is at issue in this case. The personal predilections of the
members of Fort Collins’ town council (and its citizens at large) underpin this blanket prohibition
of female toplessness and such predilections cannot form the basis for an important government
interest.
6. Colorado’s Equal Rights Amendment supplies an independent basis for enjoining Section
17-142.
Colorado’s Equal Rights Amendment (“ERA”) states “[e]quality of rights under the law
shall not be denied or abridged by the state of Colorado or any of its political subdivisions because
of sex.” Colo. Const., Art. II, Section 29 (1973). Fort Collins is a subdivision of the State of
Colorado and it is undeniable that Section 17-142 denies women of a right enjoyed by men simply
on the basis of their sex. Since its enactment, courts in Colorado have held that all sex-based
classifications are subject to strict scrutiny under the Equal Rights Amendment. See R. McG. v.
J.W., 200 Colo. 345 (Colo. 1980); Colo. Civil Rights Com. v. Travelers Ins. Co., 759 P.2d 1358,
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 13 of 15
14
1363 (Colo. 1988). As outlined above, Section 17-142 cannot withstand intermediate scrutiny. For
the same reasons, Section 17-142 cannot withstand the even more exacting scrutiny required by
Colorado’s ERA. Even if this Court holds that Section 17-142 does not violate the Fourteenth
Amendment of the United States Constitution, it is clear that it violates Colorado’s ERA.
6. Enjoining Section 17-142 represents a compromise that will serve Defendant’s interests.
Even with the imposition of an injunction, Defendant will be able to prevent female
toplessness that upsets the public order and that would harm children through the enforcement of
Colorado’s Public Indecency and Indecent Exposure statutes. See C.R.S. § 18-7-301 (Public
Indecency); C.R.S. § 18-7-302 (Indecent Exposure). Colorado’s Public Indecency statute
criminalizes “[a]ny person who performs... in a public place or where the conduct may reasonably
be expected to be viewed by members of the public... [a] lewd exposure of an intimate part... of
the body, not including the genitals, done with intent to arouse or to satisfy the sexual desire of
any person.” C.R.S. § 18-7-301. An “intimate part” is defined as “the external genitalia or the
perineum or the anus or the buttocks or the pubes or the breast of any person.” C.R.S. § 18-3-401.
Colorado’s indecent exposure statute criminalizes any person who “knowingly exposes his or her
genitals to the view of any person under circumstances in which such conduct is likely to cause
affront or alarm to the other person with the intent to arouse or to satisfy the sexual desire of any
person.” C.R.S. § 18-7-302. Both of these statutes (and the Public Indecency statute, in particular)
would prevent any purposefully sexualized exposure of the female breast. Defendant contends that
the exposure of a woman’s sexualized breasts will jeopardize public order and harm children.
Plaintiffs are already prohibited from exposing their breasts in a sexual manner by state law.
Section 17-142 is a solution in search of a problem and should be enjoined.
DATED this 26
th
day of December, 2016.
Respectfully submitted,
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 14 of 15
15
KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty
___________________________
David A. Lane
Andy McNulty
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
dlane@kln-law.com
amcnulty@kln-law.com
Jessica K. Peck, Esq.
JESSICA K. PECK, ATTORNEY AT LAW, LLC
Office: 303-331-3413
3773 Cherry Creek North Drive, Suite 575
Denver, CO 80209
jessica@jpdenver.com
Attorneys for Plaintiffs
Case 1:16-cv-01308-RBJ Document 50 Filed 12/26/16 USDC Colorado Page 15 of 15