In June 2008, the defendant, a woman, was sitting on a public beach in Spring Lake and took off her bathing suit top.  State v. Feeley, No. A-0115-10 (App. Div. Sept. 14, 2011).  A police officer approached her and asked her to put the top back on.  The defendant declined, at which time the police officer arrested her.  The defendant was brought to police headquarters and was given a t-shirt.  She was processed and released.  Shortly thereafter, the police received a call about a topless woman at an intersection near the police headquarters.  The police responded and again arrested the defendant.  The t-shirt that the police gave to the defendant was found at the door of the police headquarters.  The defendant was charged with various offenses, including two violations of the town’s public nudity ordinance.

The defendant did not challenge these facts before the municipal court or on her appeal to the Law Division.  Instead, she argued that applying the public nudity ordinance violated her equal protection rights under the 14th Amendment of the United States Constitution.  In that regard, she asserted that it was unconstitutional to allow men to be topless on the public beach but not women.  Both the municipal court and the Law Division rejected her argument and she was convicted on two counts of violating the public nudity ordinance.

Before the Appellate Division, the defendant repeated her constitutional arguments and claimed that the ordinance unjustifiably sanctioned arrest and prosecution based on gender.  The Appellate Division rejected her arguments and affirmed.

The Appellate Division first reviewed Spring Lake’s public nudity ordinance and its decision in State v. Vogt, 341 N.J. Super. 407 (App. Div. 2001).  In Vogt, the Appellate Division ruled that “there [wa]s no constitutional right for a woman to appear topless on a public beach,” and “[r]estrictions on the exposure of the female breast are supported by important governmental interest in safeguarding the public’s moral sensibilities, and th[e] ordinance [wa]s substantially related to that interest.”  The Vogt court also ruled that the public nudity ordinance at issue met both the federal and state standards for equal protection.

The Appellate Division then pointed out that the ordinance in Vogt was substantially similar to the Spring Lake ordinance and that the facts of Vogt were “indistinguishable from those presented here.”  Because the “[d]efendant has presented no principled reason for us to depart from our holding in Vogt[,]” the Appellate Division affirmed the defendant’s convictions.