a brief look at the constitutionality of sexually oriented businesses in texas
TRANSCRIPT
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
1/28
75
A BRIEF LOOK AT THE CONSTITUTIONALITY OF
SEXUALLY ORIENTED BUSINESSES IN TEXAS
ROBERT S.MORALES
I. INTRODUCTIONIn September 2008, a judge ordered The Penthouse Club in
Houston, Texas to shut down for a year for violating the citys
sexually oriented business law and being found to be a public
nuisance.1
The judge further ordered that The Penthouse Club could
never again open as a sexually oriented business.2
The Penthouse
Club reopened in September 2009 when the judges order expired.3
Prior to the closing, the establishment considered itself a bikini bar
4
and not a sexually oriented business since the entertainers wore full
bikini bottoms and latex covering on the nipples. However, the
entertainers did dance on a stage with a large, anchored pole5
1 Robert Arnold, Reported Mob Boss Hiding in Houston, Click2Houston.com, Sep.
15, 2009, http://www.click2houston.com/news/20920113/detail.html.
2Id.
3Id.
4Id.
5 THE PENTHOUSE CLUB, http://www.penthousehouston.net (last visited March 12,
2011).
where
tips from the customers were solicited and private dances for
customers were performed and contact between the entertainer and
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
2/28
76
customer was expected.6
When The Penthouse Club reopened, it did
so by marketing itself as a bikini bar with entertainers that wore latex
covering and full bikini bottoms.7 And again, the entertainers dancedon stage and performed private dances for the customers.
8
The Penthouse Club is only one of the approximately 150
businesses in the city of Houston
9that may be in violation of the
citys sexually oriented business ordinance.10
And along with these
businesses are the thousands of people they employ11
who are also
subject to the citys ordinances. And this is just Houston, Texas, and
just sexually oriented businesses featuring live entertainment. Indeed,
sexually oriented businesses are a multi-million dollar industry in
Texas12
II. BACKGROUND INFORMATIONand thus critical to the States economy.
A sexually oriented business is a type of business that is
specially regulated by the state. It is defined in two different state
codes. According to the Business and Commerce Code, it is a
nightclub, bar, restaurant, or similar commercial enterprise that
provides for an audience of two or more individuals live nude
entertainment or live nude performances and authorizes on-premises
6 This was especially true in the champagne rooms where the customer would
purchase a bottle of alcohol (usually champagne) at a marked-up price in return for
a private room with the exclusive company of an entertainer of his/her choice.
7See supra note 2.
8Id.
9 Matt Stiles, City Plans Crackdown On Some Sex Businesses: Venues Too Close To
'Sensitive' Sites Face Relocation Or Closure As A 1997 Law Gets Enforced, The
Houston Chronicle, April 16, 2007,
http://www.chron.com/disp/story.mpl/front/4717463.html.
10 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. III, 125 (1997), available at
http://library.municode.com/index.aspx.
11See supra note 9. The Mens Club alone employed over a 1,000 entertainers in
the year preceding the passing of the ordinance.
12Id.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
3/28
77
consumption of alcoholic beverages.13
sex parlor, nude studio, modeling studio, love parlor, adult bookstore,adult movie theater, adult video arcade, adult movie arcade, adult
video store, adult motel, or other commercial enterprise the primary
business of which is the offering of a service or the selling, renting, or
exhibiting of devices or any other items intended to provide sexual
stimulation or sexual gratification to the customer.
And according to the Local
Government Code, a sexually oriented business is a
14
Indeed, the Local Government Code is more encompassing
than the Business and Commerce Code which the former provides thelocal governments with more authority to classify a particular
business as being sexually oriented. Also, the Local Government
Code does not define what nudity is while the Business and
Commerce Code does. Thus, local governments are free to
incorporate whatever definition of nudity that they deem necessary to
accomplish their goal of adequate regulation of sexually oriented
businesses since their grants of authority come from the Local
Government Code
15and not the Business and Commerce Code.
Nonetheless, nudity is defined in the Business and Commerce Codeas entirely unclothed; or clothed in a manner that leaves uncovered
or visible through less than fully opaque clothing any portion of the
breasts below the top of the areola of the breasts, if the person is
female, or any portion of the genitals or buttocks.16
The regulation of erotic dancing in sexually oriented
businesses can generally be attributed to Barnes v. Glen Theaters,
Inc.
17In Barnes,
18
13
TEX. BUS. &COM.CODE ANN. 102.051(2) (Vernon 2009).
the Supreme Court held that a statute may regulate
14 TEX. LOC.GOVT CODE ANN. 243.002 (Vernon 2009).
15TEX. LOC.GOVT CODE ANN. 243.001 (Vernon 2009).
16 TEX. BUS. &COM.CODE ANN. 102.051 (1) (Vernon 2009).
17 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
18Id.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
4/28
78
this kind of dancing as long as the statute passes the OBrien Test.19
The Barnes decision was reaffirmed nine years later in City of Erie v.
Paps A.M 20 while the authority to regulate sexually orientedbusinesses in Texas has been found constitutional since 1982.
21
III. CONSTITUTIONAL LANGUAGEThe Constitution is not an instrument for the government to restrain
the people, it is an instrument for the people to restrain the
government - lest it come to dominate our lives and interests.
A) Freedom of expression
Despite some peoples repulsion towards sexually oriented
businesses, they are allowed to exist under the United States
Constitution.22
In particular, sexually oriented businesses that feature
live entertainers have been found to be vessels for the form of
expression of nude or erotic dancing.23 And, nude or erotic dancing
has been found to be a constitutionally protected form of expression
by both the Constitutions of Texas24
and the United States.25
Unlikely though it may seem, the fate of First Amendment freedomsis irrevocably connected to the ongoing struggle between purveyors
of adult entertainment and defenders of public decency.26
19 United States v. O'Brien, 391 U.S. 367 (1968). See infra note 41 and
accompanying text.
Indeed,
20City of Erie v. Pap's A. M., 529 U.S. 277, 301 (2000).
21 Memet v. State, 642 S.W. 2d 518, 522-23 (Tex. App. 1982).
22Barnes, 501 U.S. at 565-66.
23Id.
24Memet, 642 S.W. 2d at 522-23.
25Barnes, 501 U.S. at 565-66.
26 David L. Hudson Jr., Adult Entertainment and the Secondary-effects Doctrine:
How a zoning regulation may affect First Amendment freedoms, VOL.2,NO.1
FIRST REPORTS 1, May 2002.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
5/28
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
6/28
80
virtually impossible.33
Thus, the bar was lowered to where a
Victorian prosecutor must only prove that the work, taken as a
whole, lacks serious literary, artistic, political, or scientific valueinstead of having to prove the material to be utterly without social
value.34 Thus, the material must now have a serious social value as
opposed to just having some social value. Indeed, works of serious
social value receive First Amendment protection regardless of
whether the government or a majority of the people approve of the
ideas these works represent.35
As mentioned above, the Supreme Court has found that nude
dancing of the kind sought to be performed here is expressive conduct
within the outer perimeters of the First Amendment, though we view
it as only marginally so.
Of course, social value is assigned by
the majority of the people which in turn elects the government. Thus,
works of serious social value only receive First Amendment
protection if the government or a majority of the people approve of
the ideas these works represent.
36Even though the Supreme Court found
that this type of expressive conduct is one of the lowest forms of
expressive conduct, it is still expressive conductand thus falls under
the freedom of speech protections guaranteed by the First
Amendment; and a law directed at the communicative nature of
conduct must, like a law directed at speech itself, be justified by the
substantial showing of need that the First Amendment requires.37
Thus, for a statute that regulates erotic dancing to be held
constitutional, it must pass the four-prong intermediate scrutiny test
established by OBrien.38
33
Miller v. California, 413 U.S. 15, 22 (1973).
34Id. at 24.
35Id. at 34.
36Barnes v. Glen Theatre, Inc. 501 U.S. 560, 566 (U.S. 1991).
37 Texas v. Johnson, 491 U.S. 397, 406 (1989) (quoting Cmty. for Creative Non-
Violence v. Watt, 703 F.2d 586, 622 (D.C. Cir. 1983) (Scalia J., dissenting)).
38Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
7/28
81
According to OBrien, a public nudity ordinance that
incidentally impacts protected expression should be upheld if39
(4) the incidental restriction on first amendment freedoms is nogreater than is essential to the furtherance of that interest.
it
meets the following conditions:
(1) if it is within the constitutional power of the government;
(2) it furthers an important or substantial government interest;
(3) the governmental interest is unrelated to the suppression of free
expression; and
40
These requirements are easily met by enacting governments
when the governmental interest is the relief of secondary effects.
41
Secondary effects usually include prostitution, assault, drug dealing,42
and the lowering of property values.43 However, these secondary
effects must be related to the actual regulation.44
One common method of restricting sexually oriented businessis with laws that regulate alcohol consumption and sales.
45Indeed, it
is so common that the courts have developed a test to conclude
[whether] a liquor regulation prohibiting the sale or consumption of
alcohol on the premises of adult entertainment establishments is
constitutional.46
39Id.
According to Bens Bar, a restriction on the sale
40Id.
41Id. at 555-56.
42Id. at 557.
43See Smartt v. City of Laredo, 239 S.W. 3d 869, 872 (Tex. App. 2007).
44 Williams v. City of Fort Worth, 782 S.W. 2d 290, 297 (Tex. App. 1989).
45 Bens Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 705 (7th Cir. 2003).
46SeeId. at 722.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
8/28
82
and/or consumption of alcohol in a sexually oriented business is
constitutional if:
(1) the State is regulating pursuant to a legitimate
governmental power,
(2) the regulation does not completely prohibit adult
entertainment,
(3) the regulation is aimed not at the suppression of
expression, but rather at combating the negative
secondary effects caused by adult entertainment
establishments, and
(4) the regulation is designed to serve a substantial
government interest, narrowly tailored, and
(a) reasonable alternative avenues of
communication remain available, or
(b) alternatively, the regulation furthers
an important or substantial governmentinterest and the restriction on expressive
conduct is no greater than is essential in
furtherance of that interest.47
Although at first glance this test may seem to favor
unconstitutionality, in reality most of the elements have already been
adjudicated in favor of the government before any litigation has taken
place. Indeed, the governments regulation of alcohol sales and
consumption in inappropriate locations is clearly within its generalpolice powers.
48And inherent to the regulation of alcohol
consumption is the fact that the scope of the regulation lies in the
availability of alcohol and not the per se regulation of expressive
conduct.49
47Id.
Thus, the Court has found that such a regulation does not
violate the First Amendment as the regulation does not prohibit a
48Id.(emphasis added).
49Id. at 723.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
9/28
83
persons right to indulge in alcohol or enjoy nude or semi-nude
dancing, it only prevents them from doing both at the same time and
place.50
[D]eprivation of alcohol does not prevent the observer
from witnessing nude or semi-nude dancing, or the
dancer from conveying an erotic message. Perhaps a
sober patron will find the performance less tantalizing,
and the dancer might therefore feel less appreciated
(not necessarily from the reduction in ogling and cat
calls, but certainly from any decrease in the amount oftips she might otherwise receive.
However, the Court was not without empathy towards theaffected businesses as they observed that the:
51
According to the Texas Constitution, [E]very person shall be at
liberty to speak, write or publish his opinions on any subject, being
responsible for the abuse of that privilege; and no law shall ever be
passed curtailing the liberty of speech or of the press. In prosecutions
for the publication of papers, investigating the conduct of officers, ormen in public capacity, or when the matter published is proper for
public information, the truth thereof may be given in evidence. And
in all indictments for libels, the jury shall have the right to determine
the law and the facts, under the direction of the court, as in other
cases.
The Texas Constitution
52
Although, the protection of free speech in the Texas
Constitution seems more comprehensive than the protections found in
the U.S. Constitution, the Texas Courts of Appeals has not found thisto be the case.
53
50
Id. at 728.
Indeed, the Texas Supreme Court has held that free
speech rights under the Texas Constitution may be broader than those
51Id.
52 TEX. CONST. art. I, 8.
53Kaczmarek v. State, 986 S.W. 2d 287, 291 (Tex. App. 1999).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
10/28
84
provided by the Federal Constitution in certain cases.54
Unfortunately, the Court has explicitly held that any broader Texas
free speech protections do not extend to exotic dancing.55 The basisfor these holdings is that there is less interest in protecting material on
the borderline between pornography and artistic expression than in
free dissemination of the ideas of social and political significance.56
Indeed, the last case that provided any serious analysis of whether the
Texas Constitution proffers greater free speech protections than does
the U.S. Constitution was the 1995 Woodall case.57
Since Woodall
was written, neither the Texas Supreme Court nor lower state courts
have issued any rulings undermining its conclusion.58
In Woodall, the Adult Businesses argued that the Davenport
59
case had extended the greater free speech protection found in the
Texas Constitution to sexually oriented business.60
Thus, they argued
that the ordinance must be analyzed under a strict scrutiny test under
the Texas Constitution instead of the intermediate scrutiny test under
the U.S. Constitution.61
If an ordinances constitutionality is tested
under strict scrutiny, then the government would have to prove that
the ordinance protects a compelling government interest and uses the
least restrictive means of protecting this interest.62
54
Woodall v. City of El Paso, 49 F.3d 1120, 1127 (5th Cir. 1995) (emphasis added)
(Generally political protest speech).
However, the
Court held that Davenportappl[ied] only to prior restraints and not
55Kaczmarek, 986 S.W.2d at 291.
56
Id. (quoting 2300, Inc. v. City of Arlington, 888 S.W.2d 123, 127 n.3 (Tex. App.1994)).
57N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 177 (5th Cir. 2003).
58Id.
59Davenport v. Garcia, 834 S.W.2d 4, 11-17 (Tex.1992).
60Woodall, 49 F.3d at 1127.
61Id.
62Id.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
11/28
85
to time, place and manner restrictions in land use restrictions of
sexually oriented businesses.63
Finding no case on point post
Davenport to support the argument by the Adult Businesses, theCourt relied on the prior case Lindsay
64to hold that the ordinance
must only protect a substantial government interest without
unreasonably limiting alternative avenues of communication.65
In
holding that the Texas Constitution requires the same standard as
under the U.S. Constitution, the Court expressed its bias against the
Adult Businesses by stating that [i]f the intermediate Texas courts
are wrong about Texas law in this area, we are content to wait until
the Texas Supreme Court corrects their error.66
Accordingly, under Texas law, a property owner has no
constitutionally protected right to operate a sexually oriented
business.
67However, the erotic message being conveyed within the
sexually oriented business is constitutionally protected and the
government may not prohibit expression simply because it disagrees
with its message regardless of the particular mode in which one
chooses to express an idea.68 This is especially significant
considering the substantial bias against sexually oriented businesses
in Texas. From the onset, the evidentiary burden for a State
attempting to justify a substantial governmental interest is very
light.69
However, the courts do require some evidence to justify a
substantial governmental interest.70
63Id.
Thus, when there simply is no
evidence, then the State has not met the minimal evidentiary burden
64 Lindsay v. Papageorgiou, 751 S.W.2d 544, 550 (Tex. App. 1988).
65Woodall, 49 F.3d at 1127-28.
66Id. at 28.
67Hang On III, Inc. v. Gregg County, 893 S.W. 2d 724, 726 (Tex. App. 1995).
68 Texas v. Johnson, 491 U.S. 397, 416 (1989).
69 Illusions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 313 (5th Cir. 2007).
70Id. at 312.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
12/28
86
placed upon it.71
Indeed, the States burden is so low that the only
way that it cannot meet its burden is by presenting absolutely no
evidence at all; the standard of constitutional scrutiny. . . is simplywhether [the ordinance] addressed secondary effects of adult speech,
as demonstrated by the legislative record submitted by the City.72
Accordingly, the City need not [even] demonstrate that the City
Council actually relied upon evidence of negative secondary effects
when it enacted [the ordinance].73
In fact, the courts have made it
clear how little evidence they need from the government by noting
how unfair it would be to the government [t]o require the legislature
to show evidence of negative secondary effects and of the new
regulations efficacy requires too much of the City.74 Indeed, the
ordinances expected effectiveness may be proven by common sense
alone; there is no need to prove empirically[,] that SOB ordinances
will successfully reduce crime.75
Thus, the City is entitled to
experiment with distance regulations76
B) Equal Protection Clause
whether it is to the detriment
of sexually oriented businesses or not. And given the disposition of
the courts toward sexually oriented businesses, the experimentation
with distance regulations is probably expected to be to the detriment
of sexually oriented businesses.
We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness.77
71Id. at 313.
Although this statement was made as a justification
for the creation of the United States, it wasnt a truthful statement.
72N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 174 (5th Cir. 2003).
73Id. at 175.
74Id.
75Id. at 180.
76 Id. at 181.
77The Declaration of Independence para. 2 (U.S. 1776).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
13/28
87
Had it been, then slavery wouldnt have been tolerated in the United
States. Thus, not all men were created equal. And if all men werent
considered to be equal, then certainly women were excluded from thecreation equality fabrication. Certainly, men and women are
physically different and apparently these differences are not equal in
the eyes of the law. This is especially true when it comes to the chest
area. Indeed, [l]aws that target female toplessness include zoning
ordinances, public exposure or lewdness ordinances and statues,
ordinances regulating sexually-oriented businesses, law aimed at nude
sunbathing, regulations of business and liquor licenses, and obscenity
statutes.78
These laws highlight the inequality of men and women
by showing that a males viewpoint of the female form wins out to the
female viewpoint to her own body.79
Specifically, it
demonstrates that courts view the breast from a distinctly
heterosexual male perspective, and from this perspective they
conclude there is a real difference between men and women. While
courts identify this difference as biological, their reasoning reveals
the difference is socially imposed.80
According to the U.S. Constitution, equality of rights under
the law shall not be denied or abridged by the United States or by any
State on account of sex.
The U.S. Constitution
81Actually, that is how the U.S.
Constitution would have read had the Equal Rights Amendmentbeen
adopted. As it was not, women do not receive equal rights under the
law, but only equal protection under the law. It is clear that gender
has never been rejected as an impermissible classification in all
instances.82
78
Virginia F. Milstead, Forbidding Female Toplessness: Why Real Difference
Jurisprudence Lacks Support and What Can Be Done About It, 36 U.TOL.L.
REV. 273, 276-77 (2005).
79Id. at 282-83.
80Id. at 279.
81Equal Rights Amendment, H.R.J. Res. 208, 92 Cong. (1972).
Thus, we have the lesser standard of equal protection
82 Rostker v. Goldberg, 453 U.S. 57, 69 n.7 (1981).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
14/28
88
and that is granted by the 14th Amendment to the U.S. Constitution
which states:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.83
Indeed, laws regulating sexually oriented businesses are
subject to equal protection and due process
84challenges. The courts
have found that administrative hearings are subject to procedural due
process or any such adverse ruling is subject to reversal.85
Moreover,
sections of sexually oriented business ordinances have been held to
violate the equal rights provisions.86
For a local ordinance to survive a gender-based discriminationchallenge, it must serve important governmental objectives and must
be substantially related to [the] achievement of those objectives.
87
This is commonly known as the intermediate scrutiny standard of
review.88
Here, the courts have made it clear that the protection of
public health and safety represents an important function of state and
local governments.8983 U.S. CONST. amend. XIV, 1
Consequently, the prevention of secondary
84 U.S. CONST. amend. XIV, 1
85City of Arlington v. Centerfolds, 232 S.W.3d 238, 249 (Tex. App. 2007).
86 Williams v. City of Fort Worth, 782 S.W.2d 290, 298 (Tex. App. 1989).
87 Craig v. Boren, 429 U.S. 190, 197 (1976).
88WIKIPEDIA, Intermediate scrutiny,
http://en.wikipedia.org/wiki/Intermediate_scrutiny (as of Oct. 11, 2010, 01:23
GMT).
89Craig, 429 U.S. at 199-200.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
15/28
89
effects has also been recognized as an important government
objective that can withstand gender-based discrimination.90
This is
true notwithstanding the reality that the evidence offered by localgovernments is generally based on weak statistics and [i]t is
unrealistic to expect . . . members of the judiciary . . . to be we ll
versed in the rigors of experimental or statistical technique.91
Indeed, proving broad sociological propositions by statistics is a
dubious business, and one that inevitably is in tension with the
normative philosophy that underlies the Equal Protection Clause.92
However, even if the courts are willing to accept dubious statistics in
regards to sexually oriented business regulation, they also rely on
statistics that conclude that there is no evidence of secondary effects
to strike down these regulations.93
Thus, if sexually oriented
businesses can show that local studies show no evidence of negative
secondary effects connected with [their] clubs, then they may
triumph in their cause.94
In reality, sexually oriented businesses may
want to go further and actually prove that the neighborhood actually
improved while a sexually oriented business was located in the
community as the businesses did in Flanigans Enterprises, Inc.95
There, the sexually oriented businesses showed unequivocally thatproperty values in neighborhoods adjoining the Clubs have increased
during the time the Clubs have been in existence, and that
surrounding buildings show[ed] no signs of blight, or lack of physical
maintenance.96 Moreover, it was also proven that there was greater
reported crime connected with establishments that served alcohol but
did not feature adult entertainment took place.97
90
Buzzetti v. City of New York, 140 F.3d 134, 142-143 (2nd Cir. 1998).
91Craig, 429 U.S. at 204.
92Id.
93Flanigans Enterprises, Inc. v. Fulton County, 242 F.3d 976, 979 (11th Cir. 2001).
94Id. at 978.
95Id. at 986.
96Id.
97Id.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
16/28
90
Nonetheless, the Court has actually stated that the government must
have an exceedingly persuasive justification to survive a gender-based
equal protection claim.98 In United States v. Virginia, the State wastrying to argue that it could exclude female students from an all-male
public military institution.99 Acknowledging a long and unfortunate
history of sex discrimination,100
the Court noted that the Equal
Protection Clause requires that women be given an equal opportunity
to aspire, achieve, participate in and contribute to society based on
their individual talents and capacities.101
Thus, [t]he burden of
justification is demanding and it rests entirely on the State to prove
that the purpose behind the gender-based discrimination is
exceedingly persuasive.102 Thus, the reasoning must be genuine, not
hypothesized or invented post hoc in response to litigation. And it
must not rely on overbroad generalizations about the different talents,
capacities, or preferences of males and females.103
However, the
Court also recognized that there were inherent differences between
males and females and society has come to appreciate [these
inherent differences], [they] remain cause for celebration, but not for
denigration of the members of either sex or for artificial constraints
on an individual's opportunity.
104
Now, the exceedingly persuasive justification standard may
seem like a heightened level of scrutiny, but the Court has found that
the difference between the effect of seeing male breasts and seeing
female breasts is a self-evident truth about the human condition and
thus not required to be proven in order to justify gender-based
discrimination in an ordinance.
105
98
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
Thus, the courts have found that
99 United States v. Virginia, 518 U.S. 515, 519 (1996).
100 Frontiero v. Richardson, 411 U.S. 677, 684 (1973).
101Virginia, 518 U.S. at 532.
102Id. at 533.
103Id.
104Id.
105 Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1257 (5th Cir. 1995).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
17/28
91
in our culture the public display of female breasts will have far
different secondary effects than the public display of male breasts.106
Indeed, the public reactions to the exhibition of the female breastand the male breast are highly different.
107The public exposure of
the female breast is rare under the conventions of our society, and
almost invariably conveys sexual overtones.108
As such, numerous
courts have recognized that the societal impacts associated with
female toplessness are legitimate bases for regulation.109
Likewise,
the government must prove only that regulation of female breasts is
substantially related to an important governmental interest, not that
the exposure of male breasts is so related.110
Therefore, these
ordinances will be upheld as [s]tatutes that fairly can be seen as
responding to clear sexual differences between men and women are
among those laws that courts have upheld, despite the gender-based
classification contained in them.111
According to the Texas Constitution, equality under the law
shall not be denied or abridged because of sex, race, color, creed, or
national origin.
Thus, the courts have
established that gender-based discrimination related to sexually
oriented businesses is constitutional under the heightened
intermediate scrutiny framework.
The Texas Constitution
112The Texas Equal Rights Amendment was
designed expressly to provide protection which supplements the
federal guarantees of equal treatment.113
106 Buzzetti v. City of New York, 140 F.3d 134, 138 (2nd Cir. 1998).
Accordingly, the Equal
107Id. at 143.
108Id.
109Id. at 142.
110SDJ, Inc. v. Houston, 837 F.2d 1268, 1279 (5th Cir. 1988).
111Buzzetti, 140 F.3d at 141.
112 TEX. CONST. art. I, 3a
113Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
18/28
92
Rights Amendment is more extensive and provides more specific
protection than . . . the United States [Constitution].114
Thus, it
elevates sex to a suspect classification, and is therefore affordedmaximum constitutional protection.
115As such, an ordinance must
have a compelling state interest to be constitutional.116 And, [o]nce
it has been determined that the law discriminates against one sex
clearly on the basis of gender, the discrimination is allowed only
when the proponent of the discrimination can prove that there is no
other manner to protect the state's compelling interest.117
For
example, a regulation that is worded so as to where a male may
dance topless within the restricted area while a female cannot, a male
may model topless while a female cannot, and the breast of a male
may be pictured or described whereas the breast of a female
cannot118
Texas has, however, found that sexually oriented business
ordinances are subject to the Texas Equal Rights Amendment.
must have a compelling state interest to severely restrict
the female body while providing a liberating forum for the male form.
119The
Equal Rights Amendment reads that [e]quality under the law shall
not be denied or abridged because of sex, race, color, creed, or
national origin.120 When a violation of the Equal Rights
Amendment is alleged, the courts have analyzed the challenged law
under a three-step process.121
First, they look at whether equality
under the law has been denied.122
114 In Interest of McLean, 725 S.W.2d 696, 698 (Tex. 1987).
Second, they look at whether
115 Maloy v. City of Lewisville, 848 S.W.2d 380, 384 (Tex. App. 1993).
116Id.
117Id.
118Id.
119Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex. App. 1989).
120 TEX. CONST. art. I, 3a.
121 Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002).
122Id.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
19/28
93
equality was denied because of a person's membership in a protected
class of sex.123
If so, the law will only be upheld as constitutional if
it is narrowly tailored to serve a compelling governmentalinterest.
124However, some courts have disagreed with those courts
that have held that the Texas Equal Rights Amendment was intended
to apply to an ordinance prohibiting female topless dancing in
residential neighborhoods.125
Indeed, these courts have even gone as
far as to chastise their more protective judicial brethren by denying
that a constitutional provision enacted to insure equality under the
law to all Texans, regardless of gender, race, creed, or national origin,
should be utilized to strike down an ordinance limiting the locations
where female topless dancing is permitted.126
In Williams, the sexually oriented business ordinance of Fort
Worth was found to discriminate against females since clubs that
featured female topless dancers were subject to geographical
restrictions while those featuring male topless dancers were not.
127
Here, the court found that there was no evidence that exposure of the
breasts of male performers in bars which regularly feature such
entertainment is not considered sexually oriented.128
Thus, the Court
found that it is not authorizedto take judicial notice of the concept
that the breasts of female topless dancers, unlike their male
counterparts, are commonly associated with sexual arousal.129
[b]ecause the ordinance discriminates against women
on its face in its definition of nudity, and because the
proponents of the ordinance have produced no proof
Thus,
the court held that
123Id.
124Id.
125 Schleuter v. City of Fort Worth, 947 S.W.2d 920, 925 (Tex. App. 1997).
126Id.
127 Williams v. City of Fort Worth, 782 S.W.2d 290, 297 (Tex. App. 1989).
128Id. at 297.
129Id.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
20/28
94
that they cannot protect their interest in preventing
secondary neighborhood effects without such
discrimination the State of Nudity definition,relating to female breasts, is null and void in its
application to adult nightclubs and bars.130
However, the courts have shown that the government has to
overcome a low threshold of proof to satisfy its burden. The courts
have found that evidence that (1) physiological and sexual
distinctions exist between the male and female breast; (2) female
breasts differ both internally and externally from male breasts; and (3)
the female breast, but not the male breast, is a mammary gland issufficient for the government to justify its discrimination based on
gender.
131Therefore, the government can meet its burden by simply
presenting expert testimony that the difference between male and
female breasts is consistent with what is medically known about
human sexual responses.132
IV. LOCAL ORDINANCES
Thus, the courts have made it clear that
there are real physical differences between men and women and these
differences are certainly not equal. These physical differences create
different psychological responses and those responses that men
produce must be controlled by the regulation of women. Inescapably,
it is far too difficult to regulate men in this capacity, so Texas has
imposed societys burden on women as society has historically done
throughout our nations history.
According to the Texas Local Government Code,133
local
governments are authorized to regulate sexually oriented businesses
to remedy the decline of residential and business neighborhoods and
the growth of criminal activity.134
130
Id. at 298.
More specifically, [a]
131 MJRs Fare of Dallas, Inc. v. City of Dallas, 792 S.W. 2d 569, 575 (Tex. App.
1990).
132 Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256 (5th Cir. 1995).
133 TEX. LOC.GOVT CODE ANN. 243.001(b) (Vernon 2009).
134TEX. LOC.GOVT CODE ANN. 243.001(a) (Vernon 2009).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
21/28
95
municipality by ordinance or a county by order of the commissioners
court may adopt regulations regarding sexually oriented businesses as
the municipality or county considers necessary to promote the publichealth, safety, or welfare.
135However, this seemingly unbridled
delegation of authority over sexually oriented businesses is limited to
location and density restrictions.136
And even here, the restrictions
are generally confined to licensing and permit requirements.137
Also,
the county is expressly prohibited from regulating a sexually oriented
business located within the corporate limits of a municipality.138
Moreover, a further restriction is placed on the local governments.
They may not set the punishments for violations of their ordinances as
these have already been set by the Code.139 As such, home rule
cities may not pass a municipal ordinance that conflicts with the
constitution or general laws of the state.140 However, a violation of
a sexually oriented business ordinance may be enjoined in district
court141
and/or a person may be charged with a Class A
misdemeanor.142
Actually, the use of these two different remedies is
essentially a tool for the prosecutor as a Class A misdemeanor must
be heard in a county court since the district court lacks jurisdiction
over Class A misdemeanors.
143
Thus, the prosecutor is given both
135TEX. LOC.GOVT CODE ANN. 243.003(a) (Vernon 2009).
thecounty court and district court system to obtain a favorable
disposition.
136 TEX. LOC.GOVT CODE ANN. 243.006 (Vernon 2009).
137TEX. LOC.GOVT CODE ANN. 243.007 (Vernon 2009).
138 TEX. LOC.GOVT CODE ANN. 243.003(c) (Vernon 2009).
139 TEX. LOC.GOVT CODE ANN. 243.010 (Vernon 2009).
140Robinson v. City of Longview, 936 S.W.2d 413, 416 (Tex. App. 1996).
141 TEX. LOC.GOVT CODE ANN. 243.010(a) (Vernon 2009); TEX. BUS. &COM.
CODE ANN. 102.004 (Vernon 2009).
142 TEX. LOC.GOVT CODE ANN. 243.010(b) (Vernon 2009); TEX. BUS. &COM.
CODE ANN. 102.005 (Vernon 2009).
143Flores v. State, 33 S.W. 3d 907, 915 (Tex. App. 2007).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
22/28
96
Houston City Ordinance
The City of Houston, Texas, defines an enterprise as an adultbookstore, adult cabaret, adult encounter parlor, adult lounge, adult
modeling studio, adult movie theatre.144
The city restricts an
enterprise from being located within 1,500 feet of any school,
church, public park, or licensed day-care center; 1,000 feet of any
other enterprise for which there is a permit; or within a 1,500 feet
radius of an area that is more than 75% residential in character.145
The entertainers of an enterprise are also regulated by city
ordinance. Entertainers are prohibited from touch[ing] a customer orthe clothing of a customer while engaging in entertainment or while
exposing any specified anatomical areas or engaging in any specified
sexual activities.
146They are further prohibited from approach[ing]
closer than three feet to any customer while engaging in
entertainment or while exposing any specified anatomical areas or
engaging in any specified sexual activities.147
And lastly,
entertainers are prohibited from engag[ing] in entertainment or
[exposing] any specified anatomical areas or engag[ing] in any
specified sexual activities in the presence of a customer in anyseparate area which entry or access is blocked or obscured by any
door, curtain or other barrier separating entry.148
ARLINGTON CITY ORDINANCE
The City of Arlington, Texas, defines a sexually oriented
business as a Sexually Oriented Arcade, Sexually Oriented
Bookstore or Sexually Oriented Video Store, Sexually Oriented
Cabaret, Sexually Oriented Motel, Sexually Oriented Theater,Sexually Oriented Motion Picture Theater, Escort Agency, Nude
144 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. III, 121 (1997), available at
http://library.municode.com/index.aspx.
145HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. III, 125 (1997).
146 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. VIII, 258(a) (1997).
147 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. VIII, 258(b) (1997).
148HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. VIII, 258(c) (1997).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
23/28
97
Model Business or Sexual Encounter Center.149
The city restricts a
sexually oriented business from operating within 1,000 feet of a
church; a public or private elementary or secondary school; aboundary of a residential district; a boundary of the Entertainment
District; a licensed day care center; a public park; a residential
property; or another sexually oriented business.150
However, this
geographical restriction can be amended to 500 feet if there is a
controlled access highway between the district boundary/property line
and the Sexually Oriented Business.151
The employees of a Sexually Oriented Cabaret must also
adhere to city ordinances. An employee while appearing in a state of
nudity, commits an offense if the employee touches a customer or the
clothing of a customer.
152An employee is further prohibited from
permit[ing] any customer access to an area of the premises not
visible from the manager's station or not visible by a walk through of
the premises without entering a private, exclusive, closed, curtained,
or otherwise screened area, excluding restrooms.153
Actually, the
city has also enacted regulations against customers as well.
Customers are prohibited from touch[ing] an employee appearing in
a state of nudity or the clothing of an employee appearing in a state ofnudity.154
149 ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. II
(2007), available at
http://www.arlingtontx.gov/citysecretary/pdf/codeofordinances/SOBChapter.pdf.
150 ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. III,
01(B)-(C) (2007).
151 ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. III,
01(B) (2007).
152ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. V,
01(A) (2007).
153ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. V,
01(C) (2007).
154 ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. V,
01(B) (2007).
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
24/28
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
25/28
99
minded when it comes to how they regulate the interactions between
the entertainer and customer.161
They are in unison when it comes to
the belief that entertainers should not have physical contact with theirpaying customers.
162They also agree that the best way to prevent
human contact is with a no-touch rule with a buffer zone of three
to four feet in between two consenting, contracting adults.163
Thus,
even though Texas has delegated its authority to regulate sexually
oriented businesses to the local governments, it seems that
municipalities are still in accord when it comes to theories of
regulations.164 Indeed, the frame of mind in the local legislatures
seems to be exerted to prevent the federal constitution from having
any good effect.165
The so-called secondary effects
166of sexually oriented
businesses that do not involve freedom of expression issues per se are
considered an important governmental interest that must be protected.
Indeed, the evils of prostitution, assaults, and drug dealing167
should
be mitigated whenever possible. Therefore, local governments should
be allowed to pass ordinances pertaining to all of the avatars of these
evils. Indeed, local governments should also be allowed to regulate
military installations and university systems as these are well known
havens of prostitution, assaults, and drug-dealings. Thus, physical
contact between service members and college students should be
strictly regulated to prevent these evils.168
161
Id.
162
Id.
163See supra notes 149 and 159.
In fact, these societal ills
should be criminalized directly. Prostitution should be made illegal in
164 TEX. LOC.GOVT CODE ANN. 243.001 (Vernon 2009).
165 As made famous by Henry Knox.
166Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).
167Id. at 557.
168 Curtailing the sexual activity of university students and service members will
certainly be difficult if not impossible in practice.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
26/28
100
Texas as should the act of assaulting another individual and the
distribution of illegal drugs. Perhaps if these secondary effects were
made primarily illegal, then the need for ridiculous city ordinancesregulating such things as the minimum distance between an
entertainer and a paying customer169 would become unnecessary. Of
course, these ordinances regulating sexually oriented businesses are
so irrational that they encourage scofflaws170
as illustrated by The
Penthouse Club example.171
Thus, the actual secondary effect of
sexually oriented business ordinances is a disregard of the law.172
A
person that walks into an enterprise173 in Houston, Texas, will see
plenty of sights, but adherence to the three foot rule174
will certainly
not be one of those. Therefore, regulations of sexually oriented
businesses should not focus on the thinly veiled regulation of the
actual conduct that is associated with the expressive form of erotic
dancing, but should focus on reasonable time and place175
restrictions.
If not, the government runs the danger of over-regulation which may
lead to the opposite effect than they seek. Indeed, [t]he more
prohibitions you have, the less virtuous people will be.176
Even in a traditionally conservative state such as Texas,
sexually oriented businesses are big business.
177
169See supra notes 149-159.
Indeed, [t]here is a
distinct market for up-close, nude, alcohol-enhanced table dances.
Law-abiding customers envision their liberty as encompassing the
170Fantasy Ranch, 459 F.3d at 553.
171
See supra note 2.
172Fantasy Ranch, 459 F.3d at 553.
173 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. III, 121 (1997).
174See supra note 149.
175City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986).
176 LAO TZU,TAO TE CHING 57 (Stephen Mitchell, trans., Harper Perennial 2006)
(1988).
177See supra note 12.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
27/28
101
right to spend money in the erotic entertainment economy.178
The
contents housed in sexually oriented businesses have been found to be
valid179 and thus sexually oriented businesses are likely to continue toexist. Therefore, the laws that regulate sexually oriented businesses
must recognize this fact and be implemented accordingly. The
regulations must not only be reasonable, but above all practical. If
not, the laws will simply be ignored. Indeed, Texas has valid
governmental interests in protecting against the detriment of public
health, safety, and welfare,180
but it still needs to make reasonable
concessions into accomplishing its objectives lest the laws become
unjust. Lex Inuista Non Est Lex.181
178
DFW Vending v. Jefferson County, 991 F. Supp. 578, 586 (E.D. Tex. 1997).
179See supra notes 23-26.
180 TEX. LOC.GOVT CODE ANN. 243.001 (Vernon 2009).
181As made famous by Augustine and translated as an unjust law is no law at all.
-
8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas
28/28
102