I must say that I am truly confused ...
The articles I found led me to understand that there were two cases; People v. Price, and People v. Santorelli. The first being prosecuted against the original version of the law enacted in 1967, and the second prosecuted against the revised law adopted in 1983. (There evidently were others, but these are the principle two as best as I can tell).
In People v. Price, it was found that the law did not apply because the original intent of that law was to prohibit topless waitresses, and so it was held that it could only apply to commercial interests. (I didn't quite follow why, but okay ...) This commercial specific limitation was removed in the 1983 revision of the act, which intended to outlaw lewd behavior for all circumstances.
Santorelli challenged the revised law - NOT on the grounds of whether lewd behavior should be permitted, but rather, on the grounds of whether female toplessness is in fact lewd. She argued that if it is not lewd for a man, then it is not lewd for a woman either, and that the part of the law which defined it as such constituted gender discrimination.
I for one, think the argument is absurd, but my opinion doesn't matter. The court, whose opinion does matter, agreed with Santorelli; thereby creating case law which (whether you or I like it or not) makes it legal for a woman to expose herself from the waist up, anywhere where a man would be legally able to do so ... which in our society is literally anywhere. (Even in private establishments which enforce a dress code, the most they can do is throw you out - you can't be arrested for it.)
Moreover, since it was the definition portion of the law that was struck down, I'd expect it to apply to all aspects of the law, both the commercial and personal provisions. And even if that weren't so, the finding would have to at least apply to the Santorelli case itself, which was personal. So how could it apply only to commercial situations as BelizeBreeze says?
Yet in practice, its not possible for women to go topless in New York. They do get arrested. Just the other day, my wife read in the newspaper about a woman who was arrested for wearing a blouse in an NY Restaurant that was "too shear". And it seems I remember other cases as well over the past few years including a celebrity who was fined for exposing her breasts ... (wouldn’t that count as commercial?)
So what am I missing? Did I go wrong somewhere in the facts above? BelizeBreeze quotes the law like it's absolute, as though the Supreme Court had never ruled on it; while seniorjudge says "There remains a question of whether <it's> unconstitutional ..." But I don't see what's questionable about it. It seems to have been ruled-on point blank. So why are women still being arrested for going topless?
I mean hey, I can understand that a lot of people might not be happy about the ruling ... to argue that there's no difference between a bare chested man and a bare breasted woman is ludicrous ... But if that's what the law is, then that's what we must live by! We can't have people being arrested for doing something that's been ruled legal just because some officer thinks it ought to be illegal ... What kind of a system is that?
So I'm back to my original question: Can anybody explain any legal basis for continued enforcement 245.01 for mere mammary exposure? What's the problem?
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As for BelizeBreeze's links ...
Aren't these a bit off-point? Nobody is contending that public fornication is (or should be) legal. Prosecution for such offenses is right and proper. What we're talking about here, is whether a woman can go topless, nothing else.
If you refer back to the top of the thread, ClariceS only wanted to know if she could go topless in her own backyard; And that's not the same thing by a long shot as public fornication. The reason why its not the same thing (for anyone who can't see that for themselves) is ultimately because the Supreme Court said so.
