Equal Protection. With the objectives of preventing crime, maintaining property values, and preserving the quality of urban life, New York City enacted an ordinance to regulate the locations of commercial establishments that featured adult

Question

entertainment. The ordinance expressly applied to female, but not male, topless entertainment. Adele Buzzetti owned the Cozy Cabin, a New York City cabaret that featured female topless dancers. Buzzetti and an anonymous dancer filed a suit in a federal district court against the city, asking the court to block the enforcement of the ordinance. The plaintiffs argued in part that the ordinance violated the equal protection clause. Under the equal protection clause, what standard applies to the court's consideration of this ordinance? Under this test, how should the court rule? Why?

Answer 1

Equal protection
The district court dismissed the plaintiffs' complaint. The plaintiffs appealed. The U.S. Court of Appeals for the Second Circuit affirmed the lower court's decision. The plaintiffs argued that because the ordinance applied to female topless entertainment, but not to male topless entertainment, it violated the equal protection clause. As a gender-based distinction, this ordinance's classification was subject to intermediate scrutiny. The appellate court pointed out that gender-based distinctions are acceptable in circumstances in which the two genders are not similarly situated. The court concluded that "New York City's objectives of preventing crime, maintaining property values, and preserving the quality of urban life, are important. We also believe that the [ordinance's] regulation of female, but not male, topless dancing, in the context of its overall regulation of sexually explicit commercial establishments, is substantially related to the achievement of New York City's objectives." The court noted that, in drafting the ordi-nance, the city regulated "only the types of establishments that have been found to produce negative impacts on the communities in which they are located." Male topless establishments were not among those found to have negative effects. "The male chest is routinely exposed on beaches, in public sporting events and the ballet, and in general consumption magazine photography without involving any sexual suggestion. In contrast, public exposure of the female breast is rare under the conventions of our society, and almost invariably conveys sexual overtones. It is therefore permissible for New York City * * * to classify female toplessness differently from the exhibition of the naked male chest. This does not constitute a denial of equal protection."