Amend the Constitution

[Doug H]

Trailscout deserves credit for starting this, not me. It seems that most of the confusion on nudity and the law centers on the fact that there are no laws and those that exist probably have Constitutional issues that haven't been put to the test as yet. Some have said that more rules aren't needed. I disagree. The general absence of rules is the issue, not the complexity of current rules.

He also pointed out that as long as no base law at the Federal level exists, nudists will forever be at the mercy of local legislators, some of which are more concerned about their feeling of moral superiority than individuals' rights.

So for a base law at the Federal level to be applicable to State and Local governments, a Constitutional Amendment would be needed. (And the most secure in the long run. It might be hard to pass, but once passed, it would be even harder to repeal. That's only happenned once in over 200 years!)

For the legal people out there, and I know there are some lawyers amongst us, here is my list of what I would include in that amendment proposal:

1) The government may not regulate nudity within the confines of a private residence or on the premises of a private business.

2) A government agency may not regulate nudity on public land that is under the administrative jurisdiction of a different level of government.

3) Nudity may not be used to differentiate entities in cases regarding zoning.

4) Age may not be used to regulate or otherwise restrict attendence at, participation in, or patronization of businesses and/or events based solely on the presence of nudity.

I'm sure the legal experts can improve on my wording, but I'm sure the intent is clear. A government agency can only regulate nudity in public places under their own jurisdiction. Individuals and business owners are free to regulate nudity as they wish within their property. The child welfare folks, well-meaning as they are, would need more than mere nudity to take action. And a business cannot be zoned out of an area based merely on allowing nudity on their property.

Clears up the grey on several issues, and keeps the "family values" lobby at a distance as well.

Doug H.

[Doug H]

Trailscout deserves credit for starting this, not me. It seems that most of the confusion on nudity and the law centers on the fact that there are no laws and those that exist probably have Constitutional issues that haven't been put to the test as yet. Some have said that more rules aren't needed. I disagree. The general absence of rules is the issue, not the complexity of current rules.

He also pointed out that as long as no base law at the Federal level exists, nudists will forever be at the mercy of local legislators, some of which are more concerned about their feeling of moral superiority than individuals' rights.

So for a base law at the Federal level to be applicable to State and Local governments, a Constitutional Amendment would be needed. (And the most secure in the long run. It might be hard to pass, but once passed, it would be even harder to repeal. That's only happenned once in over 200 years!)

For the legal people out there, and I know there are some lawyers amongst us, here is my list of what I would include in that amendment proposal:

1) The government may not regulate nudity within the confines of a private residence or on the premises of a private business.

2) A government agency may not regulate nudity on public land that is under the administrative jurisdiction of a different level of government.

3) Nudity may not be used to differentiate entities in cases regarding zoning.

4) Age may not be used to regulate or otherwise restrict attendence at, participation in, or patronization of businesses and/or events based solely on the presence of nudity.

I'm sure the legal experts can improve on my wording, but I'm sure the intent is clear. A government agency can only regulate nudity in public places under their own jurisdiction. Individuals and business owners are free to regulate nudity as they wish within their property. The child welfare folks, well-meaning as they are, would need more than mere nudity to take action. And a business cannot be zoned out of an area based merely on allowing nudity on their property.

Clears up the grey on several issues, and keeps the "family values" lobby at a distance as well.

Doug H.

[Prometheus]

Isn't there already some provision in effect that makes federal laws override state laws? Constitutional amendments are insanely hard to pass.

The first thing I think people would object to in your proposal is that it also stops the government from regulating strip clubs. Can you make a distinct separation between simple nudity and erotic entertainment? Your proposal would probably be better off if you could.

[themightysven]

No, Federal laws don't Override Local laws. See The Tenth Amendment. But what the Fed level has recently(since about 1980) done is tie Highway funds to Fed mandates, So that if the State does not follow suit, it loses its road money. Arizona tried to assert itself and has just now fallen into line, thus their roads are in bad repair...

[Doug H]

<BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by Prometheus:
Isn't there already some provision in effect that makes federal laws override state laws? Constitutional amendments are insanely hard to pass.

Not sure. Is there someone who does know this one? There are two things I know of for certain. Laws, ordinances, and regulations at all levels are subject to the US Constitution. The Federal Government can use monetary leverage (Pass the requisite law or we will withhold money you were planning on getting. That's how the drinking age was raised from 19 to 21 about 15 or so years ago.). Also, working through the various executive agencies (EPA, FAA, FCC, ICC, et al.) may be another way of the Feds being able to enforce a Federal requirement on States and localities. I'm not sure if there is a Federal Statute or Supreme Court decision that requires State and Local laws to be "in line" with Federal legislation (as opposed to the simply the Constitution and its Amendments itself)

The first thing I think people would object to in your proposal is that it also stops the government from regulating strip clubs. Can you make a distinct separation between simple nudity and erotic entertainment? Your proposal would probably be better off if you could. <HR></BLOCKQUOTE>That's why I was asking those with genuine legal experience to contribute. As for making a distinct separation of simple, everyday nudity from adult entertainment. That wouldn't be as hard to do if the American public were better educated on the simple fact that there IS a difference.

As for regulating strip clubs and other adult entertainment value, the proposed amendment would simply mean that nudity couldn't be used as a single, meaningful part of the definition. They would have to define behavior instead of costume (or lack of). Or at least that's my interpretation of my wording.

Doug H.

[Bob S.]

I am against adding ammendments to the constitution before all other avenues of chanllenge have been worn out. Think of this, in the past 214 years after the adoption of the constitution, only 17 amandments have been added and one of those was to repeal another. Oh, and I am fully aware that there are 27 amendments, but the first 10 were added before it was adopted.

I take amending the constitution very seriously and am extremely skeptical of anyone who wants to do that.

And Prometheus is right, it is exceedingly hard to pass an amendment, as it should be. It takes 2/3 of Congress to pass it before it goes to the states for ratification. There, 3/4 of the states must pass it, meaning that of the 50 states, 38 must pass it.

Bob S.

[Prometheus]

<BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by themightysven:
No, Federal laws don't Override Local laws. See The Tenth Amendment. But what the Fed level has recently(since about 1980) done is tie Highway funds to Fed mandates, So that if the State does not follow suit, it loses its road money. Arizona tried to assert itself and has just now fallen into line, thus their roads are in bad repair... <HR></BLOCKQUOTE>Montana (speed limit) and Colorado (drinking age) have tried to push those limits also, only to be told the fed wouldn't help them with their expressways any more.

But tell me, how did the federal 55 MPH speed limit work? States could not change that.

Maybe I was forgetting something earlier. It works one way but not the other. If the federal government makes something illegal, it is illegal in all the states. But if they don't make it illegal, individual states or communities can make it illegal on their own. That must be the point that Trailscout has been trying to get across. Man, am I slow or what? /infopop/emoticons/icon_redface.gif

[missouriboy]

<BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by Doug H:
...the proposed amendment would simply mean that nudity couldn't be used as a single, meaningful part of the definition. They would have to define behavior instead of costume (or lack of). Or at least that's my interpretation of my wording.

Doug H. <HR></BLOCKQUOTE>I guess I'm missing this interpretation somewhere. I was going to suggest the inclusion of wording that positively states that "...no part of the human body may be deemed indecent, lewd, or..." whatever else these arcane local ordinances have come up with. We need to cancel out those silly "...below the areola of the female breast, the buttocks, the..." descriptions we're now stuck with.

[Trailscout]

Prometheus,

First you aren't "slow". This issue is complicated. I am no lawyer, so I don't know the necessary legal action or wording that will achieve our goal, but you and I both have the same goal.

And you did understand me correctly, I support local decision-making as much as possible, but not when it comes to basic American freedoms, and to me that includes our choices about what we wear in public.

We don't want Arkansas to have a law on their books that you can't even whisper a single word in favor of social nudity. How did a state in our union suddenly decide that its citizens no longer have freedom of speech?

Strip clubs create image problems for conservative communities, or simply communities that want to appear more "upscale", so cities and counties try to ban them, but these governments have not been able to craft laws that ban erotic nude dancing without running into freedom of speech lawsuits. So these governments pass all sorts of laws banning nudity and alcohol sales, banning establishments where nudity occurs within so many yards of public schools, all in the name of stopping these clubs which many regard as garish redneck eyesores that embarass moralists and chamber of commerce types in smaller towns and cities. So where does that leave a nudist resort when the county decides to build a new school across the street? If the county has a law that draws a circle of "protection" around each school and retroactively bans nudity on property within that circle, does that mean the nudists must get dressed or vacate the premises?

Perhaps it would take the wisdom of Solomon to legally restrict the location where erotic dancing is allowed, but not impact nudist venues.

If nudists work with local governments, perhaps they could find some legal way to distinguish the two. Perhaps the fact that dancers are paid to be nude and nudists pay for the priviledge of being nude would help distinguish the two. I just don't know. I am sure AANR and NAC lawyers have pondered this stuff deep into the night. Maybe we can persuade FANRlawyer to help us understand the issue better.

I am not so naive to assume that next week we can have a sweeping law that allows us to be nude anywhere at any time. Is an ammendment to the US Constitution the only way to stop each state, city and county from having its own law regarding nudity?

I also think the previous post makes an excellent point about the use of community standards to legally define nudity.Can you imagine the outcry if a city made turbans mandatory for men and it imposed veils on women? I don't know what's to stop them.

Could we begin by considering how we could block a county from imposing its anti-nudity laws on federal land that happens to lie within that county? This is certainly has been a problem on the south end of the Canaveral National Seashore.

[themightysven]

But tell me, how did the federal 55 MPH speed limit work? States could not change that.

The Fed Gov't does have the right to control interstate commerce. (the inter- being key, multiple states have to be involved) So they can regulate the speed (55) and that's how they justify controling the highway funds...

[Jochanaan]

<BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by Prometheus:
But tell me, how did the federal 55 MPH speed limit work? States could not change that. <HR></BLOCKQUOTE>It didn't. /infopop/emoticons/icon_frown.gif Sure, the federal government had the right, and it did save lives nationwide, but it sure made for slow trips here in the Western states: 14 hours from Kansas City to Denver (I drove it once in those days). That trip is no more than 10 or 11 hours or so now that speeds on the Interstates are 70 or 75 mph. Probably that's why that federal law was changed.

[Doug H]

<BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by Jochanaan:
but it sure made for slow trips here in the Western states: 14 hours from Kansas City to Denver (I drove it once in those days). That trip is no more than 10 or 11 hours or so now that speeds on the Interstates are 70 or 75 mph. Probably that's why that federal law was changed. <HR></BLOCKQUOTE>I think Sammy Hagar writing "I Can't Drive 55" helped a bunch, too. BTW, Sammy was in danger of losing his liscense from a number of speeding tickets at the time. No doubt that added to the attitude of the song.

Anyway, back to topic. Yes, at the federal level, an amendment would be the only way for it to stick at the state and local levels. The feds simply don't have any basis for financial leverage on this issue. I would also that that in addition to the time it takes to actually pass the amendment, preparation time would be require to educate the masses to the point that they would be willing to accept it. The Times article is one of many steps on that long (and flak-ridden) road. Hopefully, the leadership of naturist organizations will keep this in mind as a goal over the next 20-30 years.

Doug H.

[aquaman]

Maybe I shouldn't wander in at this point of the discussion but I seem to recall another precedence in which the federal government held financial leverage over states.

Didn't the government threaten to withhold federal highway funding for states who did not pass an "approved" DWI law?

While I don't foresee any creation of a federal nudity statute or law, or think there should be (I'll explain below), I guess I have a little hope in that there has not been a real push to create an anti-nudity policy for federal lands. We just had the Rainbow Family Reunion in Utah and many ordinances, including partial nudity, were largely ignored unless someone could be seen from a roadway.

I don't think a federal statute or policy is needed simply because there are so many different philisophical levels of acceptance in America. Utah would balk at such an idea because we, as a state, are more puritanical than Vermont or California. I think such laws or statutes ought to be created on a state or county level.

Am I way off base?

Congress is limited in what restrictions it can put on the states -- witness the Religious Freedom Restoration Acts. All powers not specifically given to the States are reserved to the States. So they get around it by dollars and cents. You either adopt the federal standards or we withhold signifcant funds. Consequently the highway conditions. States not adopted the old 55 mph limit would get no federal highway dollars despite the fact that they paid into it in the gasoline tax.
When the Religious Freedom Restoration Act came up there were no funds or inducements for the states to accept it. Consequently a law suit was brought and the Act was stricken as the federal government had no authority to go beyond the Constitution (despite the fact that the Constitution said specifically that the Congress had the power to take steps to see that the religious freedoms guaranteed were equally applied and to enforce such freedoms.

It's dollars and cents!

Bill Martin

[Trailscout]

Bill,

Could I get you to address the question about state and county laws being enforced on federal land? Specifically the issue of nudity on national forest or national seashores located in counties that restrict nudity?

[Kenny G]

Trailscout, I'm not an expert, nor do I have any legal training, but from what I remember reading during the Playalinda beach/Brevard county stand off is that Federal policy is if a local or county or state ordinance is in effect for an area, and federal property falls within that area, then the local law enforcement has the authoity to enforce it's laws unless they oppose the purpose that the federal land was established for. (ie: the federal government wont step on any local toes, unless they over step thier boundarys on the land) I got a first hand lecture from a U.S. Park Ranger for canoeing naked in the Okeefanokee national swamp, although there is no federal law about being nude, the Charlton county Sheriff's dept was called to go over the local laws to find out if they wanted us arrested or not. The only time the federal government would step in is if a state or county wanted to develop or allow construction on, or to charge for or block access to a national reserve. I could be wrong, but that's the way I understand it to be.

[Trailscout]

Thanks for the example.

I realize that our first step will not be a federal law revoking all local anti-nudity laws, but what about the possibility of a federal law that at least ends all local jurisdiction of federal land?

If it could pass a constitutionality test, such a law would allow us to go nude in all national forests and on every national seashore without fear of prosecution by local officials.

(Let's just pray that the prudes don't pass a national law forbidding nudity) /infopop/emoticons/icon_eek.gif

[Doug H]

That might be a good first step legislation-wise. A possible argument against ending local law enforcement jurisdiction on federal land would be a possible increase in the size of Park Ranger contingents at federal parks. If the locals can't patrol it, someone will have to. Also, by extension, could a state enforce state statues, including freedom of pursuit, on military bases and such? Growing up in the military, I know that local police in hot pursuit could follow onto a military base. I have also witnessed military police cooperating with local police in pursuing fugitives and suspects in areas adjacent to military installations. Just an example of how tricky wording, and passing, legislation really is.

That said, I do like the idea, and think that it is reasonable in both principle and practice, as well as passable. A possible after-effect as you mention is the possibility of anti-nudity activists following passage of such a law with the passing of a law forbidding nudity on federal land.

Ain't politics fun?!?! /infopop/emoticons/icon_frown.gif

Doug H.

[Doug H]

For those looking at alternatives to the Amendment proposal, another way would be to build up (on the judicial side) a body of case law (which would hold the value of legal precedent). The would involved actively seeking out "test cases" to test in court with the aim of having the legal precedent set that social nudity and indecent behavior are distinctly separately and that laws regulating indecent behavior and adult business would need to define those terms using behavior descriptions and not clothing descriptions.

It's also a long, slow, and possibly expensive process, but so is passing a constitutional amendment as has been described.

I have read criticism that the legal strategy of naturist organizations is defensive and reactive (waiting for legislation to be proposed or a court case to opened.) as opposed to proactive. (seeking out test cases and proposing legislation) I see that changing, but it's still very much the former with little of the latter. The education and PR programs sponsored by AANR and NEF are helping to create a more favorable environment for such proactive efforts.

Doug H.