CONCORD, N.H. — There's no reason for the U.S. Supreme Court to weigh in on New Hampshire's “Free the Nipple” case, the state attorney general said this week.
The high court is deciding whether to accept the appeal of three women who were convicted of public nudity at Weirs Beach in Laconia in 2016. Part of a campaign advocating for the rights of women to go topless, Heidi Lilley, Kia Sinclair and Ginger Pierro argue the city's ordinance discriminates on the basis of gender and that the Supreme Court should step in to settle disagreements on the issue that have arisen elsewhere.
The court asked the state to respond in September. In its filing this week, the state said there has been no meaningful disagreement. Nearly every state high court and federal appeals court has upheld similar ordinances, it said. And the only federal appeals court that ruled to the contrary involved reviewing a preliminary injunction, not the merits of the law.
The conflict the women identify is therefore “illusory," the state said, and the court need not “wade into areas better left for the policy making of local legislative bodies.”
The state also argues that the state Supreme Court was correct in concluding that the Laconia ordinance does not discriminate based on gender bur rather “simply reflects common understanding of nudity, and that men and women are not interchangeable within those understandings.” While the women argue that the ordinance is based in “archaic, overbroad, and obsolescent notions about gender,” the state pointed that it is consistent with other laws that recognize the female breast as an erogenous body part warranting concealment in public.
For example, the state's revenge pornography law makes it illegal to distribute private sexual images that show female breasts or other intimate parts. And another law makes it a crime to secretly observe or photograph someone's private body parts, including female breasts.
“The Legislature left that language undisturbed when it amended the statute in 2012, not so long ago as to be considered a bygone era,” the state wrote.
The women now have two weeks to file a response.