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commentary
San Diego nudists stripped of rights
Published Thursday, 24-Mar-2005 in issue 900
BEYOND THE BRIEFS: sex, politics and law
by Robert DeKoven
Naturally California (NC) is an all-ages nudist club. And like many GLBT groups seeking to use facilities, especially outside of Hillcrest, the group is having a tough time finding meeting spaces for social events (that don’t feature nudity of any kind). They’re not just facing bias from the businesses and religious zealots, but also local city officials and the police.
Events scheduled for a pool in Escondido and a roller rink in Santee were canceled by those businesses after pressure from none other than James Hartline and his followers. San Diego News Notes, an independent conservative newspaper that focuses on Catholic issues, describes Hartline as an “ex-gay, Christian activist who is battling AIDS.” He’s familiar to many here because he has rallied protests against gay events at the San Diego Sports Arena and he was part of the group that tried to disrupt Youth Pride last spring.
Hartline and his flock have pressured city officials in Escondido to make Iceoplex and Santee’s Skate Land cancel events booked by NC. Hartline described the group’s activities as perverted and despicable.
There is absolutely nothing illegal about a group of law-abiding folks having a meeting or social event. The fact that they’re nudists does not mean that they are going to strip naked and start ice skating in the nude. Further, there’s nothing illegal today about nudity, especially behind closed doors.
The San Diego Union-Tribune reports that NC is a 100-member club, whose members include adults and children. They hold member-only nude skating, swimming parties and whale-watching trips.
Hartline takes issue with mixing adult nudists with children. It is not sexual abuse for a child to see an adult naked. If so, children could never see their parents. They couldn’t walk into restrooms or locker rooms.
Naturally, if an adult is aroused at the sight of a child, then it is child abuse.
People think indecent exposure applies to all forms of nudity. It doesn’t. To charge one with indecent exposure, police must show that the naked person receives some sexual gratification from walking around in the buff.
Nudist clubs are not considered an adult business or club. They are unlike a swingers’ club or a bathhouse. Those are sexual-encounter establishments.
“The fact that they’re nudists does not mean that they are going to strip naked and start ice skating in the nude.”
Bias against nudists is similar to bias against gays. Cities cannot discriminate against adults who are nudists. The Supreme Court held in Lawrence v. Texas that the Constitution prohibits the states from infringing on the rights of adults to engage in conduct some might view as immoral (like sodomy).
And federal law also protects the rights of parents to raise their children as nudists.
Nevertheless, Hartline’s followers have prevailed upon city officials in Santee and Escondido to intimidate the nudists. A party planned for April 24 at Santee’s Skate Land was canceled by the business after a visit from sheriff’s deputies. Escondido’s Iceoplex cancelled an event for March 13. Escondido Police Lt. David Mankin told the U-T that he consulted with the District Attorney’s Office and the city attorney determined that no laws were being violated at the Iceoplex.
Nevertheless, he visited the Iceoplex to confirm that parties had indeed been held there, and the manager told him the next one, scheduled for March 13, had been canceled.
A visit from local police and the prospect of protests outside your business are examples of intimidation.
The San Marcos City Council also passed an ordinance that bans nudity in public places. The Sheriff’s Department requested it because there was no such ordinance allowing for citations or arrest for such things as public urination.
NC spoke at the meeting asking for an exception to the ordinance that would allow private nudist parties. The council rejected the request.
Of course the ordinance is unconstitutional as applied to private nudist parties because private nudist parties are “private.” Therefore, the activity is protected the same as consensual sexual activity is in private.
Businesses that engage in bias based on nudism do so in violation of the state’s Civil Rights Act. It’s an arbitrary form of bias, much the same as bias based upon gender and sexual orientation.
Hartline and his flock tread a fine line by targeting businesses for protest and intimidation if the businesses do business with nudists.
Those who intimidate nudists today will find themselves in the same position as segregationists who boycotted businesses that opened doors to African Americans.
Robert DeKoven is a professor at California Western School of Law. Previous columns are available at www.gaylesbiantimes.com.
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