Over the past 85 years since nudism as a subculture got its start in this country, nudists haven’t appeared to have gained a real foothold in the realm of popular culture, specifically as it relates to gaining acceptance of public nudity.
Negative perceptions inspire policies dramatically reducing the opportunities for nudists to enjoy being nude on public lands beyond a precious few clothing-optional beaches and wilderness areas. As examples of this you need look no further than laws on the books of at least 47 states that proscribe public nudity, equating mere nudity with indecent exposure.
The laws that criminalize public nudity rationalize injustice towards nudists on the basis of protecting societal order and morality, which according to the U.S. Supreme Court is a legitimate and substantial interest of state governments. Public indecency statutes, the court opined in 501 U.S. 560 – Barnes v. Glen Theatre Inc., “reflect moral disapproval of people appearing in the nude among strangers in public places.”
While laws aimed at regulating and prohibiting public nudity may indeed reflect moral disapproval of public nudity on the part of mainstream society, still they go against the very principles our nation was founded on. However odorous to some the products of a democracy may seem, in a free society even those things that may offend the sensibilities of some but that do no real harm should be accepted not criminalized even if the majority might very well deem them offensive.
On face value, state laws that ban public nudity are aimed at regulating strip clubs and other adult entertainment establishments, not the innocuous practice of nudism per se. That is evident from the fact that every landmark Supreme Court decision involving public nudity has involved strip clubs or other adult entertainment enterprises. However, it’s equally clear that these decisions have resulted in incidental restrictions on the practice of nudism too. This is especially true with regard to access to public lands for nude recreation.
It’s obvious when reading Supreme Court decisions on cases like Barnes v. Glen Theatre Inc. that the court looked at the constitutionality of laws that prohibit public nudity in a much broader context than merely how such statutes apply to the adult entertainment industry. The Barnes v. Glen Theatre Inc. decision ably demonstrates this. In this case the constitutionality of the Indiana Public Indecency statute that was in effect at the time was under consideration. The law read as follows;
“(a) A person who knowingly or intentionally, in a public place:
“(1) engages in sexual intercourse;
“(2) engages in deviate sexual conduct;
“(3) appears in a state of nudity (defined as “the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state”)
“(4) fondles the genitals of himself or another person;
commits public indecency, a Class A misdemeanor.”
Note: This statute has since been modified by the Indiana legislature. Public nudity is still unlawful in the State of Indiana but unless there are aggravating circumstances (lewdness involved) as defined in the Public Nudity statute that went into effect July 1, 2014, mere nudity in public is now only a Class C misdemeanor.
In support of the above observation that the Supreme Court took a much wider view of public nudity prohibitions beyond how such laws impact adult oriented businesses, consider Justice Scalia’s contribution to the decision in Barnes v. Glen Theatre Inc. —
“The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, ‘contra bonos mores,’ i.e., immoral.”
Coincidentally, when this article was published, Indiana statutes were back in the national news. While it doesn’t apply to public nudity, Indiana’s recently passed “religious freedom” law is relevant to a discussion of tolerance. If interested, the entire text of the law can be read here but in brief the statute provides that no “person” (an individual, an organization, a church, a business, etc.) in Indiana may be compelled by the government (with only very limited exceptions) to do something that substantially violates the person’s religious beliefs and convictions.
As might be imagined a firestorm of controversy erupted and the statute has been widely condemned, especially by LGBT rights activists who interpret the law as an attack on same sex marriage. A cursory reading of the act does seem to infer that ministers, churches, caterers, photographers, wedding cake bakeries, etc. in Indiana can legally refuse services to same sex couples if they do not agree with same sex marriage and feel providing services to same sex couples would violate their own religious beliefs and/or convictions.
The Indiana “religious freedom” law provides a good starting point for this discussion of tolerance. Should a baker be permitted by the government to refuse to provide a wedding cake for a same sex couple on the basis of the baker’s religiously motivated disagreement with the appropriateness of same sex marriage? If we consider tolerance a foundational part of the American creed, I think not. After all, providing and accepting payment for a wedding cake under these circumstances cannot rationally be equated with tacit approval of same sex marriage. Equal rights for all Americans has to be at the pinnacle of any concept of tolerance if tolerance is a virtue our society truly embraces.
Now consider the opposite view. If a baker refuses service to a same sex couple on the basis of his sincere religious beliefs and convictions, is it any less tolerant on the part of a same sex couple who immediately denounces the baker as homophobic and then undertakes legal action to compel the baker to provide them with a wedding cake? It seems not. Intolerance is intolerance regardless.
It is understandable why a same sex couple might react in the way described. People don’t want to be merely tolerated. They want to be accepted. Those classes of individuals who have borne the brunt of the unfortunate, long and unsavory history of discrimination in this country want acceptance, not tolerance because tolerance is an illusion not reality. If we are going to be truly free, as a society we must accept each other despite differences in gender, race, creed, national origin, sexual orientation and even what social customs are followed or ignored. As a culture we must celebrate diversity. Until that happens, none are truly free.
We hear a great deal about tolerance in America these days. A person who expresses an opinion that fails to align with the narratives of any protected class in America best be prepared for immediate and vociferous condemnation. People are very quick these days to play the race card, the homophobic card, the sexist card, etc. Bigotry is not suffered gladly in 21st century, progressive America.
We aren’t any longer just “the home of the brave and the land of free” but also the self-styled paragons of tolerance, the champions of diversity. That is as long as your creed, your subculture is considered acceptable by popular culture.
Sociologists tell us that people tend to respond more favorably to others if they share a common group identity. This identity can be social, religious, political, or even racial. As social creatures, humans like to be part of a group they perceive as important or significant because that contributes to our self-esteem. What is problematic about that is one way of seeing your group as important or significant is by looking down on members of other groups. In other words if someone is noticeably different in some way, people sometimes hold negative attitudes about that individual because they belong to a different group. That is one explanations for things like racism and other forms of bigotry.
As America becomes increasingly diverse hopefully, at least for the majority of Americans, our attitudes towards other groups, toward those who are different from us, will become more inclusive. It seems clear that the practice of nudism is still an important group distinction and this distinction promotes negative attitudes towards nudists by non-nudists. Acceptance of nudism or anything else isn’t a religious issue. It isn’t a political issue. It’s about how we treat other human beings.
Tolerance is an illusion. It is a facade disguising the lack of true acceptance of people and groups that are different. At any level of tolerance, we can continue to believe others are separate from us because they are different, worse than us, and wrong compared to us. In effect, tolerance is just intolerance wrapped up in politically correct packaging.
Perhaps in spite of all this, the historical presence and significance of nudism doesn’t have to decline in perpetuity. But one thing is certain. Nudists must never fall for the illusion of tolerance but should lobby for acceptance.