Indecent Haste

["Mike Finkbiner" <mike_l_f@hotmail.com>]

Please pardon me for the length of this note.  If we had time to discuss 
this over a few weeks it would be better, but if the Daily News is correct, 
and the Council wants to pass an ordinance tomorrow night, I thought people 
might want to look at several points.

I am puzzled by this rush to pass a new indecency ordinance.  As this 
affects everyone in Moscow, (one half more than the other!), it seems we 
could take a bit of time to discuss the issue.

After all, who is being harmed by the possibility of being exposed to the 
sight of a female breast?

Certainly some people are offended, but if you have tender sensibilities, 
you can be offended just about anywhere lots of young people gather.  
Everything from clothing choices, hair styles, tattoos to language could be 
offensive to someone.

That doesn't mean that a desire to not be offended is more important than 
your neighbor's right to paint their house or dress as he or she pleases.  I 
may not like to see the house next door painted red, or observe the plus 
size jogger in lime-green stretch pants, but neither do I have to look.  
Their appearance is not harming me.

These are a few things I hope people would think about before deciding how 
we handle the situation. -

-	A private property owner can set pretty much any dress code he wants.  
Rosauers has a 'No Shirt, No Shoes, No Service' sign on their front door, 
and any store in Moscow can do the same.  Public places are owned by 
everyone, so appearance shouldn't set the standard, only the way people act.

-	The fact that many of us were raised a particular way does not mean that 
it was set down in natural law.  Other societies around the world do things 
differently.  I have read that fundamentalist Moslem women are more likely 
to cover their faces when surprised in the nude, while American women would 
cover their genitals.  Europe seems to have adjusted to the breast, as has 
Australia.  The South Pacific, parts of Africa and Amazonia have large 
numbers of people who would be puzzled at our concern.  That doesn't make 
them immoral.   Their children seem to grow up just fine.

-	Breast feeding is universally recognized as the best way to feed infants.  
The new ordinance can exempt breast feeding, but by stigmatizing the female 
breast as indecent, it makes it more difficult for a new mother to decide to 
feed her baby in public.  If the breast is not indecent while feeding a 
baby, why is it indecent while mowing a lawn or reading a book?

-	What is the wording of this new ordinance?  The state law bars 'Willful 
and Lewd' exposure.  Will the proposed ordinance be so restrictive that the 
casual back-yard sunbather is in danger of a prudish neighbor with a 
stepladder?

-	What is the legal climate?  Although the city attorney is correct in 
stating that other cities have such ordinances, have any of them been 
challenged in recent years?  After all, we are in the Federal 9th Circuit, 
the court which just struck down the Pledge of Allegiance as 
unconstitutional.  No one knows in advance what the court will do, but there 
have been several cases in recent years which indicate that courts are less 
likely to allow states to discriminate between men and women.

	For example, in 1992 New York State's highest court, in deciding that the 
state could not force women to cover their breasts, stated -

"… the concept of "public sensibility" itself, when used in these contexts, 
may be nothing more than a reflection of commonly held preconceptions and 
biases. 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…The mere fact that the statute's aim is the 
protection of "public sensibilities" is not sufficient to satisfy the 
state's burden of showing an "exceedingly persuasive justification" for a 
classification that expressly discriminates on the basis of sex."

THE PEOPLE &C., RESPONDENT, v. RAMONA SANTORELLI AND MARY LOU SCHLOSS, 
APPELLANTS, ET AL., DEFENDANTS.
        80 N.Y.2d 875, 600 N.E.2d 232, 587 N.Y.S.2d 601 (1992).
         July 7, 1992

	More importantly, the US Supreme Court in 1996, United States vs. Virginia 
(the VMI case) also ruled that gender-based distinctions must have an 
``exceedingly persuasive justification''.

If no one wants to push the issue, of course, we may never know what the 
federal courts say, but this is a college town, and a case could get a lot 
of attention.  Do we need to spend our tax dollars to fight this through the 
courts, especially if it won't really make a difference in Moscow?  Could 
the city persuade the courts that they have an "exceedingly persuasive 
justification"?

I say that it won't make much difference in Moscow, because we can ban 
sexually oriented business without using police power to force a peculiar 
notion of decency on women.  Even if we do not ban the breast, the chances 
of a person being offended by the sight of a nipple are very small, unless 
they go out of their way.


Clothing style is best set by the culture, not the law. Men and women are 
not strolling the streets of Moscow in tiny bathing suits now.  Women 
haven't been doing so with their shirts off over the last few years, and 
aren't likely to do so in the future.  Even though the court for ten years 
has said they could, shirtless women are rare in New York.

The law should be reserved to protect us from other people's behavior, not 
their appearance.


Mike Finkbiner





_________________________________________________________________
Join the world’s largest e-mail service with MSN Hotmail. 
http://www.hotmail.com