Author Archives: Brett Dolin

Court Decides: Bikini v. Pastie

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District Judge Fred Biery, known for his lively and pun-filled writing as in last year’s First Amendment Establishment Clause opinion on school prayer, has issued a suggestive order denying a preliminary injunction in “The Case of the Itsy Bitsy Teeny Weeny Bikini Top v. The (More) Itsy Bitsy Teeny Weeny Pastie.”  (The actual name of the case is 35 Bar and Grille, LLC v. City of San Antonio).

Miss_Wiggles

In this First Amendment challenge, plaintiffs are businesses employing “exotic dancers” who claim that a 2012 amendment to the San Antonio Code of Ordinances (see Chapter 21, Article IX, Sexually Oriented Businesses) would require them either to submit to licensure or require their dancers to switch from pasties to bikini tops.  The businesses claim infringement of the dancers’ free expression and that San Antonio has not satisfied its burden under the secondary effects doctrine to demonstrate harm.

Noting that customers might better enjoy a performance by the fully-clothed Miss Wiggles (pictured), Judge Biery encourages the parties to engage in “reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.” 

While Biery’s opinion does illustrate the tendency of many courts to trivialize First Amendment claims regarding nudity, his previous opinions are evidence that his light treatment of partially clothed expression is not unique.

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The Right to Wear Arms

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Sikhs in the United States have been frequent targets of both bias crimes and police harassment because of the articles of faith associated with their religious practice, including turbans, uncut hair, and kirpans (small swords or knives).

Two pending cases highlight constitutional issues for Sikh religious dress.

In one, Gursant Singh Khalsa has filed a complaint in the U.S. District Court for the Eastern District of assault_rifleCalifornia alleging that California’s bans on assault weapons and carrying loaded firearms in public violate his Second Amendment right to bear arms and First Amendment right to free exercise of religion.

Khalsa argues that Sikh religious doctrine requires him to bear arms to defend himself and others, which, according to his interpretation, means carrying “no less” than a firearm loaded with more than 10 rounds, a violation of California law. Typically, this doctrinal requirement is manifested in the kirpan, rather than the assault rifle. Khalsa’s cited justifications for carrying arms include recent violent attacks against Sikhs — notably the 2012 mass shooting at a Sikh temple in Oak Creek, Wisconsin, carried out by Wade Michael Page. (Noted: Page legally purchased his multiple-magazine semiautomatic handgun.) 

kirpan_rulerIn the second case, Kawaljeet Kaur Tagore’s claim is pending before the Fifth Circuit Court of Appeals. Tagore was fired from her job at the Internal Revenue Service in Houston for refusing to remove or modify her kirpan with a three-inch blade. The I.R.S. fired Tagore for violating agency rules and 18 U.S.C. § 930, prohibiting possession of dangerous weapons in Federal facilities. Judge Sim Lake, writing for the U.S. District Court for the Southern District of Texas, dismissed Tagore’s claims against the I.R.S. of religious discrimination under Title VII of the Civil Rights Act of 1964 and the Religious Freedom Restoration Act.

Khalsa’s claim has reportedly attracted skepticism from the director of his hometown Yuba City Sikh Temple, Tejinder Dosanjah: “He should not involve the Sikh faith directly or indirectly in this lawsuit.” Tagore’s suit, however, has greater appeal, including attracting an amicus brief from the International Center for Advocates Against Discrimination, describing the kirpan as an “inseparable part of the Sikh identity” and “in no conceivable way … a weapon.”

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Tattoo Taboos

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taboo-tattooLaws restricting tattooing and body modification are in the works in at least three states. Arkansas would ban dermal implants, a procedure where jewelry is implanted under the skin, and update its procedures for licensure of artists and tattooing of minors, including increased penalties and fines. West Virginia would likewise ban tattooing for minors under 16 and specify parental consent procedures for 17- and 18-year-olds, including written consent at the time of tattooing. The Utah legislature has passed a similar bill updating its consent requirements for minors. Meanwhile, a Texas father was reportedly arrested for felony injury to a child and felony aggravated assault for allowing his teenaged daughters to be tattooed.

Certainly, tattoos are an increasingly accepted and widespread form of self-expression.  In holding unconstitutional a municipality’s ban on tattoo parlors, in 2010 the Ninth Circuit Court of Appeals in Anderson v. City of Hermosa Beach held that tattoos were expressive activity and thus protected by the First Amendment.  Applying a strict scrutiny standard, the court concluded that the total ban on tattoo parlors was unconstitutional.  Interestingly, the court found that the expression was not merely the words or images, but the “tattoo itself, the process of tattooing, and the business of tattooing.”  

But whether all courts would accept this rationale, or extend it to other practices such as dermal implants  and scarification is uncertain.  Moreover, given children’s lesser constitutional rights, the government’s ability to regulate tattoos on minors – – – with or without parental permission – – – is also uncertain.   Yet the arrest of a father for allowing teenagers to have “body art” is sure to raise a variety of constitutional questions, not to mention policy ones.

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