51 Vill. L. Rev. 841 (2006)
Disrobed: The Constitution of Modesty

handle is hein.journals/vllalr51 and id is 855 raw text is: 2006]

T HE First Amendment of the United States Constitution protects free-
dom of speech and expression.1 The Fourteenth Amendment pro-
tects liberty of action.2 Still, state and local laws compel sexual modesty.
Of course, law cannot make anyone truly modest. The sanctions the law
threatens, however, can impel even the least modest men and women to
behave in public as if they were paragons of that saintly virtue.
American laws compel sexually modest behavior: first, by restricting
nudity on the streets, on beaches and in places of public accommodation;
second, by prohibiting modes of public undress that could be character-
ized as obscene, lewd or indecent; and third, by restricting the time, place
and manner of sexually-oriented public theatrical performances, dancing
and touching.3 Laws have demanded that women cover up their breasts.4
By contrast to Western Europe, topless sunbathing is rarely permitted in
the United States. Even infant breast-feeding in public was once treated as
an indecency offense.5 Female genital and nipple cover-up is a command
1. Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press, or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances. U.S. CONST. amend. I.
2. The Fourteenth Amendment reads in part:
No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
U.S. CONST. amend. XIV, § 1.
3. Cf Carol A. Crocca, Annotation, Validity of Ordinances Restricting Location of
Adult Entertainment or Sex-Oriented Businesses, 10 A.L.R.5TH 538, 553-55 (1993).
4. See generally Reena N. Glazer, Women's Body Image and the Law, 43 DuKE L.J.
113 passim (1993) (discussing Indiana and New York laws that prohibit women
from exposing their breasts in public).
5. See Dora A. Corby, A Mother's Right to Breast-Feed Her Child in Public-A New
Personal Right in California, 29 McGEORGE L. REv. 447, 447 (1998); Durmerisis
Cruver-Smith, Protecting Public Breast-Feeding in Theory but Not in Practice, 19 WOMEN'S
RTS. L. REP. 167, 168-70 (1998); Lara M. Gardner, A Step Toward True Equality in the
Workplace: Requiring Employer Accommodation for Breastfeeding Women, 17 Wis. Wo-
MEN'S L.J. 259, 264-66 (2002); Danielle M. Shelton, When Private Goes Public: Legal
Protection for Women Who Breastfeed in Public and at Work, 14 LAW AND INEQ. 179, 181-
86 (1995); Corey Silberstein Shdaimah, Why Breastfeeding is (Also) a Legal Issue, 10
HASTINGS WOMEN'S L.J. 409, 411-13 (1999); Emily Suski, In One Place, but Not An-
other: When the Law Encourages Breastfeeding in Public While Simultaneously Discouraging
It at Work, 12 UCLA WOMEN'S L.J. 109, 111-12 (2001); Gordon G. Waggett & Rega
Richardson Waggett, Breast Is Best: Legislation Supporting Breast-Feeding Is an Absolute
Bare Necessity, 6 MD. J. CONTEMP. LEGAL ISSUES 71, 81-84 (1995).


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