Erie v. Pap's A. M., 529 U.S. 277, 55 (2000)

Page:   Index   Previous  42  43  44  45  46  47  48  49  50  51  52  53  54  55  56  Next

Cite as: 529 U. S. 277 (2000)

Stevens, J., dissenting

genitals" (and certain other regions of the body) "with less than a fully opaque covering." 501 U. S., at 569, n. 2. The Erie ordinance duplicates that definition in all material respects, but adds the following to its definition of "[n]udity":

" '[T]he exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola.' " Ante, at 283- 284, n. (emphasis added).

Can it be doubted that this out-of-the-ordinary definition of "nudity" is aimed directly at the dancers in establishments such as Kandyland? Who else is likely to don such garments? 17 We should not stretch to embrace fanciful explanations when the most natural reading of the ordinance unmistakably identifies its intended target.

It is clear beyond a shadow of a doubt that the Erie ordinance was a response to a more specific concern than nudity in general, namely, nude dancing of the sort found in Kandy-land.18 Given that the Court has not even tried to defend

17 Is it seriously contended (as would be necessary to sustain the ordinance as a general prohibition) that, when crafting this bizarre definition of "nudity," Erie's concern was with the use of simulated nipple covers on "nude beaches and [by otherwise] unclothed purveyors of hot dogs and machine tools"? Barnes, 501 U. S., at 574 (Scalia, J., concurring in judgment); see also ante, at 308 (Scalia, J., concurring in judgment). It is true that one might conceivably imagine that is Erie's aim. But it is far more likely that this novel definition was written with the Kandyland dancers and the like in mind, since they are the only ones covered by the law (recall that plays like Equus are exempted from coverage) who are likely to utilize such unconventional clothing.

18 The plurality states that Erie's ordinance merely "replaces and updates provisions of an 'Indecency and Immorality' ordinance" from the mid-19th century, just as the statute in Barnes did. Ante, at 290. First of all, it is not clear that this is correct. The record does indicate that

331

Page:   Index   Previous  42  43  44  45  46  47  48  49  50  51  52  53  54  55  56  Next

Last modified: October 4, 2007