2022 DLNR Receives a Third Defeat in Court

The State of Hawaii has no laws that prohibit the exposure of the female breast.  This was finally established by the Hawaii Supreme Court in HI v. Crenshaw in 1979.  A woman can therefore choose to be Top-Free wherever a man can be bare chested. This is also the case in all but the most backward US states.  The DLNR never miss an opportunity to impose draconian rules to criminalize hard won liberty.  When State Park rules were updated in 2020, they maintained the exposure of female breasts within the definition of prohibited Nudity.  In 2020 the DLNR management flipped from Nudity tolerance to ordering their enforcement officers to issue citations for Nudity.  This is the story of 2 Top-Free women that were incensed by the sex discrimination and plead Not Guilty.

In July 2021 Beth Quick was cited for Nudity (but actually Top-Free).  Bill Watts, a witness, subsequently asked the officer why they had arrived 45 minutes earlier than the usual 4PM to issue citations, and would that be the new normal.  The officer said we carry out our orders and do not know what they may be in the future.  In August Stacy Moke was cited for Nudity (but actually Top-Free).  Their cases were conducted in parallel without being consolidated.  They both filed a Motion to Dismiss via their attorney David Pullman.

Defendant Stacy Moke

Stacy Moke commented:  "Having a law specifically prohibiting only female nipples or areola from being exposed clearly violates women’s constitutional rights.  I would be equally satisfied, and slightly amused, if the law was changed so all gender, including men, could not expose their nipple or areola.  DLNR officer, Fernandez, treated me with respect and kindness. The problem is with the discriminatory law he is duty bound to uphold, not him."

"Most people do not know that men were once oppressed by government administrators.  In the 1920s and 1930s men could not bathe shirtless.  They rebelled and were arrested in droves and fined for exposure of their nipples.  Only in 1937 was the ban overruled by a New York Judge.  Why have women had to wait so long!"

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The Motion to Dismiss asserted that the State Park’s Nudity rule violated the defendant’s Equal Protection rights guaranteed by the US Constitution and Hawaii Constitution.  The DLNR asserted that the States compelling interests were protecting public order and morality, and preserving the health and safety of the public, and the need to protect unwilling members of the public from unwanted exposure. 
[Hell's Bells!  We thought female breasts were safe, even for babies.]

No surprise, the DLNR provided no evidence to support their assertions.  The law requires that the State prove that it has a compelling public interest.  In the case of Equal Protection sex discrimination, the US Supreme Court has ruled that the government must carry the burden of showing an “exceedingly persuasive justification.”  The judge Granted the Motion to Dismiss on Violation of Equal Protection Rights.  Case Closed.

Public defender David Pullman stated:  “This is bad law.  It's an example of what happens when unelected bureaucrats are permitted to draft their own criminal laws.  In the 21st century, no law should criminalize women for doing anything men are legally allowed to do.  Thankfully, the judge saw this unlawful discrimination for what it was.”

Impact on State Park Top Free:
The verdict in a District Court case does not create a precedent that must be applied to future cases BUT this was a slam-dunk, identifying the State Park Nudity rule as unconstitutional against a woman’s right to be Top-Free.  It seems unlikely that any judge would differ or that any DLNR police officer will be issuing citations for Top-Free in any State Park.  This could be confirmed by some Top-Free women walking circles around the DLNR police officers when they arrive at Big Beach.  If there is a photograph, we will post it here.