Standing as a thin shield between Hoosiers and a plague of bare (female) breasts, Judge Cale Bradford wrote an opinion rejecting a 16 year old girl’s fourteenth amendment claim that it’s a violation of the Constitution’s equal protection guarantees to outlaw the public display of female breasts while allowing men to flaunt their nipples freely.
But Judge Bradford knew better. He recognized that, in its ultimate wisdom, the Indiana General Assembly recognized that a girl’s chest is a threat to public safety where a man’s chest is not. (I paraphrase). The reason? Men’s nipples are not erogenous zones. So, if you thought otherwise, you now know better:
We do not believe that it can be seriously disputed (and C.T. does not) that Hoosier society, in general, considers the female breast to be an erogenous zone but does not consider the male breast to be one: public display of the former is almost certain to cause offense and unease while public display of the latter is not.
Aside from the weirdness of suggesting that erogenous zones have to be covered up — hats over those ears, people! And no sandals for you toe freaks! — there’s a chicken & egg problem here. If female breasts were on display 24/7, I’m pretty sure the offense and unease would disappear.
The outcome here doesn’t really bother me. Women have been able to thrive and advance themselves even without the right to flash people in passing cars at 4 a.m. But where Bradford gets into trouble and opens himself up to smart asses like me is when he tries to pretend something like this is rational. It’s not. It’s utterly arbitrary. But some things are just like that – we make folks toe the line on made up customs as part of living in our society. (I think cults do this too, come to think of it.) For example, why some words are “bad,” swear words has no real rhyme or reason. But, you don’t go saying them in front of your mother if you have any respect. (Criminalizing this stuff is troublesome, however.)
Anyway, I think Judge Bradford probably should have said, “it makes no real sense, but we’ll leave it up to the legislature to change it.” Or follow it to its logical conclusion and overturn it because it serves no particularly rational purpose.
I feel bad for judges that have the bad luck to receive cases like this. There is no good defense, but deciding this case for the Plaintiff doesn’t seem like the right answer either. Poor Bradford.
The KKK demonstrating causes far more offense and unease to me than a female breast. I hope I’m not alone in this reaction.
However, they have their right to do that, yet she does not? How did this law professor miss that example? I’m sure the people of Indiana would also vote to block the KKK’s right to demonstrate, but the Constitution protects the minority in both of these cases.
I don’t feel one bit bad about the judge, he make a bad call.
I do hope this one’ll be remembered as the “Hey, the Legislature says so, so who am I to judge?” decision.
And how’d this get to court, anyway? Oh, well, at least out there, somewhere, a minor child has learned a very important lesson: being right has nothing to do with it.
Somehow this reminds me of Mr. Brumble famous comment in Dickens’ Oliver Twist (about the now thankfully forgotten doctrine of “coverture“): “the law is a ass – a idiot!”
errr….I mean Mr. Bumble.
This is really a jobs issue. If 16 year old girls are going to give it away for free, what are all the Hard Working Hoosier Strippers going to do for a living?
Someone should notify Jon Stewart or Steve Colbert about this. It would make great fodder for the late night comedians.
I have been reading Massons blog but not contributing,but I couldnt let this subject pass.
Its not morality it’s just culture. I remember so well as a young man being so embarassed watching French TV during prime time with a French family I was living the summer with.There was nude everything,men and women and the French just sat there nonpulsed..because the movie otherwise was kind of drab.
Spending one summer in a foreign cuture,truly immersed ,any culture is better than reading and memorizing a whole set of encyclopedias.
My advice :send your teens to France,England or Germany for a year and they’ll come back a fuller person.But make sure they’re structured.Those, in my view, are the 3 countries most influencing american culture historically.Im sure we could argue that,but that in itself is a worthwhile discussion.
When I see the focus of so many political ads I feel disquiet for American culture .
Doug, Doug, Doug. You are purposely standing this case on its head.
The case is not about protecting the public from the scourge of seeing bare female breasts. It is about a 16 year-old girl who has required a juvenile court judge AND the Indiana Court of Appeals to inform her (and all of us) that she does not have a *Constitutional* right to stand on a street corner at 4:30 a.m. and flash her boobies at passing motorists. Gee. What a surprise! Does she really think that is what the authors of the 14th Amendment had in mind when they used the phrase “equal protection of the laws? Does she really think that is what all of those state legislatures were thinking when they ratified the Amendment? Do you? Wow. Bare 16 year-old boobies on a street corner at 4:30 a.m. I guess they thought of everything, in your view.
The only thing that Judge Bradford, Judge Darden, and Judge Brown did was uphold a law enacted by elected representatives reflecting American cultural attitudes. Lou got that exactly right, above. If you want to protect your daughter, and others, from “being hassled by the cops just because we were flashing our boobs at passing motorists at 4:30 in the morning,” well, get the law changed. Don’t expect a three-judge panel of the Court of Appeals to do it for you. Bravo to the panel for exercising some judicial restraint!
The real questions of this case are:
1. WHERE WERE THIS GIRL’S PARENTS??? I certainly hope that when your daughter is 16, her parents will teach her that such attention-seeking behavior is dangerous . . . (wait for it) . . . FOR HER!
2. WHERE ARE THEY NOW??? Do they think this litigation is merely an entertaining civics project for school? Why should the taxpayers have to pay a prosecutor (and staff), a juvenile judge (and staff), a Deputy Attorney General (and staff), and 3 Court of Appeals judges (and their staffs) to participate in this project? If transfer to the Indiana Supreme Court is sought, someone just might to start thinking about sanctions for frivolous appeals.
3. IS PROFESSOR SCHUMM DOING THIS APPEAL PRO BONO? If not, I hope his bill is very substantial, reflecting his extensive appellate skills and the depth of his knowledge and experience on Constitutional issues. If so, see #2 above and the appropriateness of sanctions.
Doug, I read your blog regularly and often disagree with point of view. But you’ve made a real boob out of yourself this time.
I’m not staying up nights worrying about how this poor girl is being oppressed. But, it highlights an arbitrary inequality. Why are girl nipples bad, needing to be covered – requiring the machinery of state to impose criminal penalties if they are; and boy nipples a matter of indifference?
If this was just a curfew violation case, I never would have noticed.
Don’t take my comment incorrectly either, LM. While I think that she has the constitutional right to do what she did, as a parent of two girls I’m wondering how she got away with that. My girls would be in for a punishment that would measure on the Richter scale if they had done something like that.
However, I don’t need the law to be a good parent. In fact, if I let my kids do anything and everything that the law allowed, I think I’d be a pretty crappy parent.
“If this was just a curfew violation case, I never would have noticed.”
Nor would I. Nor would anyone else. Originally, it was probably a minor incident involving some out-of control teenage girls showing off their newly-acquired badges of womanhood. The police intervened and a juvenile judge had not find that the minor had committed an act that would be a crime if committed by an adult before the judge could ask Question No. 1, above, of the parents.
But then SOMEONE decided to turn it into a *Constitutional* case and appeal the juvenile judge’s finding to the Indiana Court of Appeals. Now, who do you think that was? A 16 year-old rarely has the financial means to finance such an appeal. Even if her parents had such means, I have a hard time believing that they would think this would be a worthy use of it. Jason’s description of Richter-measurable punishment if his daughters did something like this is a much more common parental response. That leaves as the prime suspect . . . Professor Schumm, who is presently trying to get himself elected to a 3 year term on the Indiana Judicial Nominating Commission.
If he is the person financing and promoting (through pro bono or discounted appellate services) this make-a-Constitutional-mountain-out-of-a-molehill litigation, what does that say about his judgment? Is this someone who should be deciding who the next members of the Indiana Supreme Court and Court of Appeals should be?
Someone should ask him about this.
I feel for the judge whose nipples are not an erogenous zone… he might want to get that checked out.
I’ve seen some exposed man nipples (mipples?) that should never, ever see the light of day. Just because you can go without a shirt, men of the world, does not mean that you should.
LM,
I think you’re missing the bigger point…this isn’t a case that is limited to juveniles. It applies across the board.
Plus it is a 14th Amendment Equal Protection case and whether a law that says women can’t show their breasts but men can is a violation of that provision. Deferrig to the legislature seems misplaced. The question is whether the legislative enactment violates the Constitution.
I’m all for legislative deference…but you have to get by the constitutional question before you get to that.
Well, in Canada there was the case of Gwen Jacobs, a young and hot – in this case, literally hot, woman in a southern Ontario town called Guelph. She decided that men were walking down the street bare-chested on a particularly beautiful summers’ day and so could she.
Predictably, she was arrested and charged with public indecency.
She was also acquitted. You see, Canadians are much more liberal than their prudish American neighbours. And our judges are much more sensible. And besides folks, they’re just boobs. They’re not offensive, they’re just body parts. If women want to show ’em off, so what? No one in France, Germany or Italy would even notice.
It rather reminds me of the furor over Janet Jackson’s nipple pop — the indecency! The indignity! But it’s just fine to have TV shows that glorify all sort of gory activity and news that glorifies the body bags of the poor soldiers. Really – this is a moral issue? Nope – just prudishness.
One can act all offended, but really, if your mom didn’t have them, you wouldn’t be here. Grow up.
Paul, I am not missing the bigger point. We simply disagreed about what the bigger point is. You seem to think that the issue of the public exposure of female nipples is worthy of Constitutional protection. I do not. I think your claim belittles and demeans the principles the Constitution was written to protect.
Should we be governed by laws written by elected representatives? Or should we leave the task of writing (or rewriting) the law to a three person panel of appointed officials on the grounds that they know what is best for society?
Don, this is not a moral issue. It is merely a legal one.
LM: you have yet to offer a rationale for why bare boobs are unworthy of protection.
as for your claim that this is not a moral issue: how can you possibly justify a law against women baring their breasts, if not on moral grounds? judge bradford admitted in his opinion that the core of the issue is that bare boobs are “almost certain to cause offense and unease”.
Who are these people for whom the bare breast causes offense and unease? How sad it must be to be wired that way.