by Will Doss
While the antiquity and ridiculousness of Indiana’s archaic liquor laws are frequently in the news, alcohol is certainly not the only topic with regard to which our great state lags behind the rest of the country. Marijuana legalization seems an obvious follow-up, but with the current inability to purchase cold beer at a grocery store on a Sunday in Indiana, do Hoosiers really have any chance of legally purchasing the devil’s lettuce, medicinally or otherwise, anytime soon?
Just as perplexing as our alcohol laws is the legal handling of nudity in Indiana. With the nation’s continued focus on the equal rights of women, not to mention the fluidity of gender as merely a social construct, should our state’s laws continue to differentiate between men and women when it comes to the legal definition of nudity? Why is it that Indiana is one of only three states, along with Utah and Tennessee, where it is straight-up illegal to bare a female breast in public, while men are free to brazenly flaunt their exposed nipples whenever and wherever they choose?
Pursuant to the federal Equal Protection Clause, nestled comfortably at the end of Section 1 of the Fourteenth Amendment to the United States Constitution, no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Indiana’s equal protection clause, the “Equal Privileges and Immunities Clause,” found in Article I, Section 23 of the Indiana State Constitution, states that “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” That means Indiana law must treat everyone equally, regardless of race, gender, or any other classification by which one wishes to differentiate.
Lest the more prurient members of society think this is only about checking out women’s boobs, rest assured that there are far more significant social issues in play here. In addition to the simple issue of equality, there are considerations with regard to breastfeeding, sunbathing, and the legal sexualization of females regardless of their intent. While all nipples may not be created equal, under the law they should be treated equally.
In February of 2017, the “Free the Nipple” movement won a victory over the city of Fort Collins, Colorado. U.S. District Court Judge R. Brooke Jackson granted an injunction against a Fort Collins ordinance which prohibited women from showing their breasts in public. In granting the injunction on the primary basis of discrimination, the federal judge held that the Fort Collins ordinance “perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.” As stated by Denver attorney David Lane, “Any statute that has the words in it ‘Women are prohibited from’ is almost certainly unconstitutional.”
Despite this injunction and similar holdings in other jurisdictions, and contrary to the clamoring of those who continue to support such legislative inequality, women have not taken to the streets in endless hordes, forcing their bare breasts upon the general population and permanently damaging our fragile children. Even in the prudish conservative state of Indiana, neither alcohol sales on Sundays nor the occasional exposure of a female nipple will bring our society to its tragic and calamitous end. Just don’t get TOO excited about the possibility of our state eventually following the rest of the country, as the statutory definition of “nudity” in Indiana also includes “the showing of covered male genitals in a discernibly turgid state.”