1975 - Unmarried America

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In Saxe i'. Breier. 37 F.Supp. 635 (12/24/74). the plaintiffs
argued unsuccessfully that the pr~hibition of "presumed
illegal sexual conduct" would have "such a chilling effect upon
the operation of said business as to virtually prevent the lawful
operation thereof.
The ordinance (Section 106-13, Milwaukee Code) regulates
hours, requires record-keepJng (names of patrons, and
technicians, dates and times of visits), prescribes, minimum
dre~s requirements. for patrons and technicians, prohibits
massage of the breasts of females, the genital areas of both
sexes, and sets out minimum qualifications for licensing of
technicians.
In prior cases. the court had struck down. on "equal
protection" grounds. provisions which prohibited technicians
from massaging persons of the opposite sex. (See. for example.
Corey 1'. Ci~\' of Dallas. 352 F. Supp. 977.982 (t 972).]
Muni Court strikes down
cross-'dressing ordinance
Cincinnati's cross-dressing ordinance has been found unconstitutionally
vague and a violation of the Fourteenth
Amendment due process guarantee. But the Hamilton County
Municipal Court. in, Ci~v of Cincillnati v. Adams, 42 Ohio
M·isc.- 48. 33, N.E. 2nd 463 (11/8/74). rejected the argument
that a transvestite's mode of dress "is an expression protected
by the First Amendment."
, " The 'defendant. a man dressed as a woman and arrested
after soliciting' an undercover officer. was charged under
Section 909-5, C.M.C .• which provides:
"No p'erSon within, the city of Cincinnati shall appear in, a
dress or cosh.Jme not custoniarily ~orn by his or her ~ex, or in a
disguise when such dress, apparel, or disguise is wor':l ~ith the
intent of committing any indecent or immoral act or of
violating any ordinance of the city of Cincinnati or law of the
state of 0 hio."
While pointing out that "the legislative body can prohibit
cross-dressing when it is associated with criminal misconduct
and bears a reasonable relation to the public health. safety.
morals and welfare." the court nevertheless found the
ordinance unconstitutionally vague and a violation of the
Fourteenth Amendment due process guarantee.
'
The court noted lack of precisfon in the pttrase "not
customarily worn It and in the terms "indecent" and
··immoral." Citing inadequate standards and' lack of "fair
notice" of conduct prohibited as the basis of its ruling, the
cou'rt remarked that the ordinance might bring guests at a
masquerade party under suspicion --.,. and further commented
that "the propriety of criminalizing cross-dressing in view of
contemporary clothing and hair styles common 'to both sexes is
debatable." .
Finally, Judge Gorman's opinion notes that "absent this
ordinance, the conduct of a transvestite remains subject to
statutes or ordinances prohibiting soliciting. importuning,
pandering. obscenity, public indecency, trespassing. or
soliciting rides or hitch-hiking" (Statute numbers omitted).
Court must assess lobscenity'
independent of a guilty plea
The U.S. Court of Appeals (Fifth Circuit) has reversed a c·­
conviction of mailing an obscene letter (18 U.S.C. Section
~.'
1461), where the district court had not reviewed the letter itself.
The case of Clique lI. U.S.. 514 F.2d 923 (6113175) was
remanded because:
"The rule that a 'guilty plea does not excuse the court from
reviewing the actual material on which the plea is based
applies with equal force to the district court judge as it does to
the appellate judge."
Despite Clique's guilty plea, the Court ruled that "in this
constitutionally sensitive area (First Amendment rights), the
convicting court was under a constitutional duty to assure itself
of the unprotected nature of Clique's writin2."
The ruling is based on the U.S. Supreme Court hold'ings in
lacobellis 1'. Ohio. 378 U.S. 184,84 S.Ct. 1676, 12 L.Ed. 2d 793
(1964) - and in U.S. lI. Cote, 413 U.S. 905. 93 S.Ct. 3061. 37
L.Ed. 2d 1037 (also a Fifth Circuit case) in which. this court
"adopted the interpretation that an obscenity conviction must
be supported by an independent factual assessment according
to the prevailing legal standards, even where a guilty plea has
been entered." '
Hospital's timing of
sterlization upheld
In Padi" lI. Fordham Hospital, 392 F.Supp. 447 (1/14/75).
the U.S. District Court (S.D., N.Y,) has concluded that: HA
public hospital may not be able constitutionally to maintain aC "
policy of refusing to perform tubal ligations (citation omitted)
but it surely is able to schedule tubal ligations at its
convenience so long as such sched uling does not operate to
effectively establish a policy of not performing such
procedures.
The plaintiff, arguing her right of privacy had been invaded,
had been denied the sterilization procedure on the occasion of
a Caesarean operation for the birth of her seventh child,
because the anesthesiologist, a Roman Catholic, refused the
assist, on religious grounds. The tubal ligation was performed
at the same hospital four months later.
Commercial health club
is no haven for sodomy
The District of Columbia Court of Appeals has ruled again
that "the right to privacy" does not protect acts of sodomy
committed in a commercial health club.
The privacy right recognized in U.S. Supreme Court
decisions such as Eisenstadt v. Baird (1972), Stanley v. Georgia
(1969), and Griswold v. Connecticut (1965) was ruled
iJ;lapplicable to activities conducted in the Regency Health
Club. where membership is open to the public "with minimum
formality and modest. fees." (See Harris v. U.S., 315 A.2d at
574. n.l 5 for another Regency ~ealth Club case).
Here, in U.S. v. McKean et al., 338 A.2d 439 (S/30/7S) the
Court of Appeals . reversed the lower court's dismissal of
informations, ruling'that "appellee ~ay not claim a right to oL
reasonable expectation of privacy in the constitutional sense.of
the word, regardiess of whether the' cubicles in which the
alleged acts occurred were iii fact 'secluded'."
o More court news, page 41
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