City of Seattle v. Buchanan, No. 44199

• Court: United States State Supreme Court of Washington
• Writing for the Court: ROSELLINI; WRIGHT; WRIGHT; HICKS; UTTER; HOROWITZ; I agree with Utter; UTTER
• Citation: 90 Wn.2d 584,584 P.2d 918
• Docket Number: No. 44199
• Decision Date: 28 September 1978
• Parties: The CITY OF SEATTLE, Respondent, v. Kelly Ann BUCHANAN, Sheila Marie Cox, Susan Jane Hanley, Susan E. Isaacs and Varryl Lee Lawless, Appellants.

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90 Wn.2d 584 584 P.2d 918 The CITY OF SEATTLE, Respondent,
v.
Kelly Ann BUCHANAN, Sheila Marie Cox, Susan Jane Hanley,
Susan E. Isaacs and Varryl Lee Lawless, Appellants. No. 44199. Supreme Court of Washington, En Banc. Sept. 28, 1978.

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Dan Wershow, John R. Muenster, King County Public Defender, Sarah Lytle, Asst. Public Defender, Seattle, for appellants.

Douglas N. Jewett, City Atty., Richard S. Oettinger, Asst. City Atty., Seattle, for respondent.

ROSELLINI, Justice.

The five appellants were convicted in Municipal Court of violations of Seattle Ordinance No. 102843, § 12A.12.150, defining as "lewd conduct" and making unlawful the [584 P.2d 919] public exposure of one's genitals or female breasts. They were each fined $100. The unchallenged findings show that the appellants were arrested in the Seattle Arboretum, where they were swimming and sunbathing with their breasts completely exposed. Two of them stood and tossed a "frisbee" at some time during the period of exposure. The appellants were not engaged in any expressive or communicative activity. According to the evidence introduced on appeal to the Superior Court, the arrests had been made in response to several citizen complaints.

Rejecting contentions that the ordinance in question violates Const. art. 31 (the equal rights amendment), as well as federal and state due process, equal protection, and freedom of expression and speech provisions, the Superior Court affirmed the convictions. These contentions are renewed on this appeal.

Const. art. 31, § 1, provides: "Equality of rights and

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responsibility under the law shall not be denied or abridged on account of sex."

Thus far, we have had only one occasion to examine this provision. ¹ In Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975), two young women challenged a refusal to allow them to play football on the high school team, which refusal was grounded upon a rule promulgated by a statewide association of secondary schools. The plaintiffs' evidence showed that the young women were physically capable of playing on the team, met the team requirements, and had the permission of the school district. Against the argument that the rule was justified because most girls are incapable of meeting such requirements, this court held that it was unconstitutional as applied to the plaintiffs. The gist of the holding of the case was that eligibility must be determined on individualized characteristics, at least where equal access to sports' programs is not made available to both sexes, and in the absence of a showing that the rule in question serves a rational purpose based upon actual differences which are present in every member of the particular sex.

The appellants do not deny the right of a municipal legislative body to enact laws for the protection of the public peace, order and morals. They concede that a legislative body may enact laws which apply only to the members of one sex, provided that they are based on actual differences between the sexes. They give as an example the role of childbearing, and state that the legislature could constitutionally pay a bonus to a woman who, during a given period of time, gave birth to (or refrained from giving birth to) a child. However, they contend that a law which provided a bonus to women for childrearing, and did not provide it to

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men, would be invalid, because men are equally capable of rearing children "beyond the short period of breastfeeding."

Their contention here is that there is no difference in appearance between the breasts of men and women sufficient to justify a law forbidding the exposure of the breasts of one and not the other, their assumption being that it is only the size or shape of women's breasts which inspired the ordinance in question.

At the trial, the appellants offered testimony of a physician, Dr. Charles Cowan, who said that there is no difference in the composition of the flesh of male and female breasts; that the breasts do not form a primary sex characteristic but a secondary one, and that the degree of development of the breasts does not determine sex. He said, in clarification of this latter testimony, that some men have breasts as large as those of some small-breasted women. ²

[584 P.2d 920] The doctor was not asked and did not say whether there is any difference in function between the male and female breasts, and we see that the appellants agree that there is such a difference. They give it no weight, however, evidently because, as they view the legislative intent, function is not an element which the legislative body had in mind when it forbade the public exposure of female breasts.

We are unable to agree that the legislative body could only have been interested in the size or shape of female breasts when it included them among the parts of the human body which should not be exposed in public. It is

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manifest from a reading of the section as a whole ³ that the City Council was concerned with those body parts and functions which, according to society's common sense of decency, should be kept private. These include the eliminative functions and the procreative functions. With respect to the latter, it was found to be in the public interest to order concealed, in addition to the genitals, the female breasts, which, unlike male breasts, constitute an errogenous zone and are commonly associated with sexual arousal. ⁴ The lawmakers no doubt took account of the fact that the breasts can be kept covered in public without inconvenience, since they perform no function which necessitates their being exposed to public view.

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When the legislative intent is viewed in light of the obvious purpose of the ordinance to protect the public morals and its concern for the privacy of intimate functions common knowledge tells us, as it undoubtedly told the trial judge, that there is a real difference between the sexes with respect to breasts, which is reasonably related to the preservation of public decorum and morals. Governmental bodies have a right to enact laws to maintain a decent society. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Seattle v. Marshall, 83 Wash.2d 665, 670, 521 P.2d 693 (1974).

We are told that concepts of morality and propriety are changing, and that public exposure of the female breasts is becoming [584 P.2d 921] increasingly less offensive. This may be the case, even though we are given no evidence to support the assertion, and it is obvious that in this instance, some persons were offended. If it is true, then it can reasonably be expected that public demand will soon make it imperative that this portion of the ordinance be repealed. Suffice it to say that the argument attacks the wisdom and necessity of the ordinance, matters which the courts lack the constitutional authority to decide.

The Supreme Court of the United States in Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 199, 93 L.Ed. 163 (1948), said:

The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.

We cannot perceive that the privilege sought here is one which involves any serious interest of the appellants. It does not fall within their rights of expression, religion, petition, political action, or association, or their right to privacy, or within any marital, familial, educational (as in Darrin v. Gould, supra ), occupational, property, economic or social interest of theirs. It is not shown that the right is one which women generally demand or even wish to enjoy. On the other hand, the right of the public, including

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women, to enact laws which tend to preserve the public peace and decorum (without at the same time interfering with the exercise of protected liberties) would be seriously curtailed were we to hold that the equal rights amendment forbids laws such as the ordinance we have before us. To do so would lend validity to the objections voiced by opponents of the amendment, and weaken public confidence in its beneficence.

The leading law review article pertaining to the proposed federal amendment recognizes that it is not intended or designed to strike down laws which are based upon actual differences in the sexes. See Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 893 (1971). Records of the United States House of Representatives and the Washington State Senate reveal the same understanding. See House of Representatives Report No. 92-359, 92nd Cong., 1st Sess. (1971), and Senate Journal, 42nd Legis., 2d Ex.Sess. at 345-46 (1972). The Yale Law Review writers also make clear their understanding that the provision is designed to protect the Substantial rights of women. We share that understanding of its purpose and see no good reason to subvert it by using article 31 as a vehicle to thwart the public will on matters which the people deem to be in their best interest and which require only inconsequential sacrifices from the individual, where there is an actual difference between the sexes, to which the law reasonably relates.

There being such a difference between the breasts of males and females (however undiscernible to the naked eye of some), and that difference having a reasonable relationship to the legitimate legislative purpose which it serves, the ordinance does not deny equality of rights or impose unequal responsibilities on women. It applies alike to men and women, requiring both to cover those parts of their bodies which are intimately associated with the procreation function. We find that the ordinance in question does not violate Const. art. 31.

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The theory is advanced that this ordinance denies the equal protection of the laws to the appellants. We have already shown that the law does...