Freecast S04E07: Justice For Jussie But Not For The Women Of NH

Tom The Freecast

Featuring Hosts: Matthew Carano and Nick Boyle

Engineered by: Matthew Carano
Produced by:

Matt Carano, and Nick Boyle

On this episode of the Freecast, Sununu’s new budget, Jussie Smollet gets caught trying to start a race war, Liberty Forum recap, and the NH Supreme Court decides equal protection under the law no longer exists.

● Sununu’s budget
● Jussie Smollet
● Liberty Forum Recap (Nick)
○ Trivia
○ Stephan Kinsella and Daniel Garza immigration debate
○ Vermin Supreme showing up in a horse outfit Friday night announcing “I’m proud
to be the presumptive nominee for the Libertarian Party in 2020!… And if you
stick with me, together we can get 5%!”
○ Lee McGrath, Institute of Justice talk about how occupational licensing is the #1
inhibitor to employment

○ Talked to a number of NH state reps about what committees they’re on and how the session is going so far (Alan Bershtein, Hershel Nuñez, Alicia Lekas, Tony Lekas, Jess Edwards, Michael Yakubovich)
○ State of the Free State (ads on podcasts, 24,155 signers, 4,392 movers, acceptance of monthly donations)
○ Comedy from Lou Perez
○ Free Ross fundraiser raised $6,700
○ Armory room
■ Region tables
■ Porcfest
■ “I can’t believe it’s not government” ​
■ Approval Voting
Best pickup line contest (Matt – ofc)
Seacoast government pensioners among highest in the state.
● Freecoast Liberty Outreach Meetup ○ Rochester – 4th Thursday
NH History
● NH Supreme Court upholds topless Ordinance 3-2
○ On appeal, the defendants argue that the trial court erred by denying their motion
to dismiss because the ordinance: (1) violates their right to equal protection under the State and Federal Constitutions; (2) violates their rights to free speech and expression under the State and Federal Constitutions; (3) does not fall within the regulatory authority granted to the City of Laconia by the legislature; (4) is preempted by RSA 645:1; and (5) violates RSA chapter 354-A.
○ Associate Justice, Bobbie Hantz Marconi wrote for the majority who affirmed the Circuit Court’s ruling on all counts, Chief Justice C.J. Lynn and Associate Justice Patrick Donovan concurred
■ “We conclude that the Laconia ordinance does not classify on the basis of gender. The ordinance prohibits both men and women from being nude in a public place….That the ordinance defines nudity to include exposure of

the female but not male breast does not mean that it classifies based upon a suspect class. …The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity.”
■ ”Applying the standard, we have little trouble concluding that the defendants have not carried the heavy burden of mounting a successful facial attack to an ordinance analyzed only for rationality. The stated purpose of the ordinance is to uphold and support “public health, public safety, morals and public order.” “
■ “The dissent faults us for seeking guidance from other courts in ascertaining whether Laconia’s ordinance classifies based on gender. However, as demonstrated by the lack of any meaningful discussion of our precedent in the dissent, we have little in the way of help from our own cases in answering this question.”
■ Although there exists no express authority for a city to enact an ordinance prohibiting females from exposing their nipples, RSA 47:17, VII (2012) grants the city the power “[t]o regulate all streets and public ways, wharves, docks, and squares, and the use thereof.” Further, RSA 47:17, XIII (2012) grants the city the power “to regulate the times and places of bathing and swimming in the canals, rivers and other waters of the city, and the clothing to be worn by bathers and swimmers.” In addition, RSA 47:17, XV (2012) gives the city the power to “make any other bylaws and regulations which may seem for the well-being of the city” so long as “no bylaw or ordinance” is “repugnant to the constitution or laws of the state.”
○ Justice James Bassett wrote for the dissent, who concurred in part and dissented in part, Justice Hicks joined
■ We agree with our colleagues in most respects: Laconia’s ordinance does not violate the defendants’ rights to freedom of speech and expression; it falls within the regulatory authority of the City of Laconia; it is not preempted by statute; and it does not violate RSA chapter 354-A. However, we part company with the majority when it rejects the defendants’ equal protection claim. We strongly disagree that rational basis is the lens through which the defendants’ equal protection challenge should be analyzed. Laconia’s ordinance facially classifies on the basis of gender: if a woman and a man wear the exact same clothing on the beach, on Laconia’s main street, or in a backyard “visible to the public,” the woman is engaging in unlawful behavior — but the man is not.
■ The majority acknowledges — as it must — that under the New Hampshire Constitution, gender-based classifications trigger strict scrutiny. Yet the majority declines to apply strict scrutiny in this case, reasoning that, because “men and women are not fungible with respect to the traditional understanding of what constitutes nudity,” the Laconia ordinance does not classify on the basis of gender. The conclusion that

the ordinance does not classify on the basis of gender, and therefore can be analyzed by applying the rational basis test, does not find support in the plain language of the ordinance, the New Hampshire Constitution, or our precedent.
■ That the ordinance classifies on the basis of gender is self-evident. The ordinance defines “nudity” differently for females and males. By the plain text of the ordinance, a person who appears in a public place showing “the female breast with less than a fully opaque covering of any part of the nipple” violates the ordinance; a male who appears in the same public place without such a covering does not. Laconia, N.H., Code of Ordinances ch. 180, art. I, §§ 180-2, 180-4 (emphasis added). The challenged portion of the ordinance creates a public dress code which only one gender can violate. This is a gender-based classification.
■ The ordinance’s stated purpose is to uphold and support “public health, public safety, morals and public order.” Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-1 (1998). In the trial court, the City asserted that because the defendants were topless, they caused a “disturbance” which “has the potential for violence.” The City also asserted that, because people think of “female breasts in a sexualized manner,” topless women may present other beachgoers with “a mental health issue.” Turning to the ordinance’s other stated purposes, “morals and public order,” the City argued to the trial court that women who do not cover their nipples act contrary to “the City’s character” and “morals as determined by the city council.” However we, like the United States Supreme Court, “have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.”
○ ss-ordinance
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