This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
The Defendant, owner of a tattoo and body modification business, offered free nipple piercings to customers who agreed to have the procedure performed in the front window of her establishment. This resulted in public exposure of both male and female nipples, visible from the sidewalk. The Defendant was charged under a City of Albuquerque ordinance prohibiting public nudity after a female customer exposed her breasts during the procedure (paras 2-3).
Procedural History
- Bernalillo County Metropolitan Court: The Defendant was convicted of violating the City Ordinance prohibiting public nudity and sentenced to 90 days probation (para 4).
- District Court: The Defendant appealed for a de novo trial, but the district court affirmed the conviction, rejecting her constitutional challenges to the ordinance (paras 4, 8).
Parties' Submissions
- Defendant-Appellant: Argued that the ordinance violated the New Mexico Equal Rights Amendment by discriminating against women, contravened the New Mexico Human Rights Act by requiring sex-based discrimination in her business, and infringed on her First Amendment rights by restricting expressive conduct (paras 5-7).
- Plaintiff-Appellee: Asserted that the ordinance was constitutional, did not discriminate against women, and did not infringe on protected forms of expression.
Legal Issues
- Does the City Ordinance prohibiting public nudity violate the New Mexico Equal Rights Amendment by discriminating against women?
- Does the ordinance contravene the New Mexico Human Rights Act by requiring sex-based discrimination in public accommodations?
- Does the ordinance infringe on the Defendant's First Amendment rights by restricting expressive conduct?
Disposition
- The Court of Appeals affirmed the Defendant's conviction and sentence (para 23).
Reasons
Per Vigil J. (Castillo and Bustamante JJ. concurring):
Equal Rights Amendment: The Court held that the ordinance does not violate the New Mexico Equal Rights Amendment. It found that the ordinance's distinction between male and female breasts is based on unique physical characteristics and does not disadvantage women. The classification was deemed constitutional as it served the legitimate purpose of protecting public morals (paras 9-16).
Human Rights Act: The Court rejected the Defendant's argument that the ordinance required her to discriminate based on sex in violation of the Human Rights Act. Since the ordinance itself was not discriminatory, compliance with it did not constitute unlawful discrimination (para 17).
First Amendment: The Court determined that the Defendant's conduct—exposing female breasts during nipple piercings—was not a form of expression protected by the First Amendment or the New Mexico Constitution. The act of piercing was not sufficiently communicative to warrant constitutional protection, and there was no evidence of expressive intent or communication (paras 18-22).
Special Concurrence by Bustamante J.:
Bustamante J. agreed with the majority's conclusion but emphasized that the gender-based classification in the ordinance did not warrant strict scrutiny. He reasoned that the interest at stake—public nudity—was trivial compared to the fundamental rights considered in prior cases like N.M. Right to Choose. The potential harm to women from the classification was minimal, justifying a less rigorous judicial review (para 25).