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Implications from recent gay marriage court decisions for nudists?

Federal judge finds Wisconsin’s gay marriage ban unconstitutional
Federal judge finds Wisconsin’s gay marriage ban unconstitutional
Photo by Zach Gibson/Getty Images

On June 6, 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin struck down Wisconsin's gay marriage ban. In so doing she joined more than a dozen of her peers who have previously ruled that banning same sex marriage is unconstitutional.

In her sweeping opinion Judge Crabb raised substantial constitutional issues that seem to have as much application to laws that discriminate against nudists by criminalizing mere nudity as to laws that discriminate against gays by prohibiting same sex marriage.

Let's be clear that the issue of same sex marriage is a far more complex issue on many levels than whether a person has as much right to go nude as to go clothed. Yet Judge Crabb made some fundamental constitutional arguments pertaining to rights guaranteed to all Americans by the Fourteenth Amendment that seem to be applicable to any overly broad state laws that exist solely to regulate "moral" conduct on the basis of tradition and rule of law that "simply persists from blind imitation of the past."

Clearly Judge Crabb did not have in mind the rights of nudists to live their lifestyle without undue and unwarranted interference by the state. However, many of the arguments and justifications she employed in overturning the law prohibiting same sex marriage in Wisconsin are fundamentally applicable to that.

In effect Judge Crabb took an axe to the root of long-standing precedents embraced by the Supreme Court that regulation of morals is a legitimate use of state police powers. Using examples like state-sanctioned racial discrimination through past segregation laws and state-sanctioned discrimination against women via historical laws that denied women the right to vote, Judge Crabb clearly opined that any rule of law based solely on the state's view of what is morally acceptable and what is not is fundamentally unconstitutional when the effect is to disenfranchise and discriminate against a minority class of citizens who lack the political power to resist.

A cursory review of all past Supreme Court decisions that have been used to justify the constitutionality of state laws that ban public nudity have always been related to the regulation of strip clubs. None have ever focused simply on the issue of whether a person has the right to go nude outside the confines of private property when there is no intent to behave in a lewd manner. Judge Crabb it seems has perhaps unwittingly opened a door via the Fourteenth Amendment for nudists, if they are so inclined, to walk through it.

Not being an attorney or schooled in the law, I don't pretend to be able to speak intelligently on whether Judge Crabb's ruling has sufficient application to the nudist issues to affect real change. However, since the Supreme Court long since closed the door to First Amendment constitutional challenges of state laws banning mere nudity, I have long believed that the Fourteenth Amendment offers the only real avenue to challenge oppressive laws that ban outright all public nudity without regard to a person's intent.

It is common knowledge in nudist circles that there are both judges and attorneys who embrace and live the nudist lifestyle. One can only hope that some attorney somewhere or at least one of the national nudist or naturist organizations with the resources to hire one will examine Judge Crabb's ruling with an eye toward how it might be used to overturn state-sanctioned discrimination against nudists and end the denial of their fundamental rights as both citizens and human beings.

As the proponents of marriage equality have taught us, bigotry and intolerance is always likely to be a part of the fabric of our culture despite how repugnant it is and can only be suppressed when challenged in a court of law. That is a lesson history amply provides. Nudists have patiently awaited a change in the courts of public opinion and a relaxation of ultra-conservative societal moralistic views, but have waited in vain.

Just as slavery, segregation, oppression of women and discrimination against gay people continued until the oppressed classes became fed up with it and acted to affect change through the federal courts, the same will likely be true for nudists. In my opinion the time is ripe for a Fourteenth Amendment challenge of the tradition-based status quo. It seems that the U.S. District Court for the Western District of Wisconsin might be a good place to start. Perhaps Judge Crabb is enlightened enough to see how her recent decision to strike down the Wisconsin law banning same sex marriage has implications for another class of people whose basic human rights have been trampled on for far too long.

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