Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
ROBERT S. MORALES
I. INTRODUCTION
1
Robert Arnold, Reported Mob Boss Hiding in Houston, Click2Houston.com, Sep.
15, 2009, http://www.click2houston.com/news/20920113/detail.html.
2
Id.
3
Id.
4
Id.
5
THE PENTHOUSE CLUB, http://www.penthousehouston.net (last visited March 12,
2011).
76
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.
7
See supra note 2.
8
Id.
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.
11
See supra note 9. The Men’s Club alone employed over a 1,000 entertainers in
the year preceding the passing of the ordinance.
12
Id.
77
13
TEX. BUS. & COM. CODE ANN. § 102.051(2) (Vernon 2009).
14
TEX. LOC. GOV’T CODE ANN. § 243.002 (Vernon 2009).
15
TEX. LOC. GOV’T 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).
18
Id.
78
this kind of dancing as long as the statute passes the O’Brien Test. 19
The Barnes decision was reaffirmed nine years later in City of Erie v.
Pap’s A.M 20 while the authority to regulate sexually oriented
businesses in Texas has been found constitutional since 1982. 21
III. CONSTITUTIONAL LANGUAGE
A) Freedom of expression
Despite some people’s 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 Texas 24 and the United States. 25
“Unlikely though it may seem, the fate of First Amendment freedoms
is irrevocably connected to the ongoing struggle between purveyors
of adult entertainment and defenders of public decency.” 26 Indeed,
19
United States v. O'Brien, 391 U.S. 367 (1968). See infra note 41 and
accompanying text.
20
City 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).
22
Barnes, 501 U.S. at 565-66.
23
Id.
24
Memet, 642 S.W. 2d at 522-23.
25
Barnes, 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.
79
27
Id. at 27.
28
U.S. CONST. amend. I.
29
BLACK’S LAW DICTIONARY 1168 (8th ed. 2005).
30
Barnes, 501 U.S. at 566.
31
Roth v. United States, 354 U.S. 476, 484-85 (1957).
32
Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966).
80
33
Miller v. California, 413 U.S. 15, 22 (1973).
34
Id. at 24.
35
Id. at 34.
36
Barnes 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)).
38
Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).
81
39
Id.
40
Id.
41
Id. at 555-56.
42
Id. at 557.
43
See 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
Ben’s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 705 (7th Cir. 2003).
46
See Id. at 722.
82
47
Id.
48
Id.(emphasis added).
49
Id. at 723.
83
50
Id. at 728.
51
Id.
52
TEX. CONST. art. I, § 8.
53
Kaczmarek v. State, 986 S.W. 2d 287, 291 (Tex. App. 1999).
84
54
Woodall v. City of El Paso, 49 F.3d 1120, 1127 (5th Cir. 1995) (emphasis added)
(Generally political protest speech).
55
Kaczmarek, 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)).
57
N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 177 (5th Cir. 2003).
58
Id.
59
Davenport v. Garcia, 834 S.W.2d 4, 11-17 (Tex.1992).
60
Woodall, 49 F.3d at 1127.
61
Id.
62
Id.
85
63
Id.
64
Lindsay v. Papageorgiou, 751 S.W.2d 544, 550 (Tex. App. 1988).
65
Woodall, 49 F.3d at 1127-28.
66
Id. at 28.
67
Hang 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).
70
Id. at 312.
86
placed upon it.” 71 Indeed, the State’s 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 simply
whether [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 regulations” 76 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.
B) Equal Protection Clause
“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 Although this statement was made as a justification
for the creation of the United States, it wasn’t a truthful statement.
71
Id. at 313.
72
N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 174 (5th Cir. 2003).
73
Id. at 175.
74
Id.
75
Id. at 180.
76
Id. at 181.
77
The Declaration of Independence para. 2 (U.S. 1776).
87
Had it been, then slavery wouldn’t have been tolerated in the United
States. Thus, not all men were created equal. And if all men weren’t
considered to be equal, then certainly women were excluded from the
creation 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 male’s 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
The U.S. Constitution
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.” 81 Actually, that is how the U.S.
Constitution would have read had the Equal Rights Amendment been
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 Thus, we have the lesser standard of equal protection
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).
79
Id. at 282-83.
80
Id. at 279.
81
Equal Rights Amendment, H.R.J. Res. 208, 92 Cong. (1972).
82
Rostker v. Goldberg, 453 U.S. 57, 69 n.7 (1981).
88
90
Buzzetti v. City of New York, 140 F.3d 134, 142-143 (2nd Cir. 1998).
91
Craig, 429 U.S. at 204.
92
Id.
93
Flanigan’s Enterprises, Inc. v. Fulton County, 242 F.3d 976, 979 (11th Cir. 2001).
94
Id. at 978.
95
Id. at 986.
96
Id.
97
Id.
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 was
trying 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 Thus, the courts have found that
98
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
99
United States v. Virginia, 518 U.S. 515, 519 (1996).
100
Frontiero v. Richardson, 411 U.S. 677, 684 (1973).
101
Virginia, 518 U.S. at 532.
102
Id. at 533.
103
Id.
104
Id.
105
Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1257 (5th Cir. 1995).
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 breast
and the male breast are highly different.” 107 The “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 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
According to the Texas Constitution, “equality under the law
shall not be denied or abridged because of sex, race, color, creed, or
national origin.” 112 The Texas Equal Rights Amendment was
“designed expressly to provide protection which supplements the
federal guarantees of equal treatment.” 113 Accordingly, “the Equal
106
Buzzetti v. City of New York, 140 F.3d 134, 138 (2nd Cir. 1998).
107
Id. at 143.
108
Id.
109
Id. at 142.
110
SDJ, Inc. v. Houston, 837 F.2d 1268, 1279 (5th Cir. 1988).
111
Buzzetti, 140 F.3d at 141.
112
TEX. CONST. art. I, § 3a
113
Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002).
92
114
In Interest of McLean, 725 S.W.2d 696, 698 (Tex. 1987).
115
Maloy v. City of Lewisville, 848 S.W.2d 380, 384 (Tex. App. 1993).
116
Id.
117
Id.
118
Id.
119
Williams 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).
122
Id.
93
123
Id.
124
Id.
125
Schleuter v. City of Fort Worth, 947 S.W.2d 920, 925 (Tex. App. 1997).
126
Id.
127
Williams v. City of Fort Worth, 782 S.W.2d 290, 297 (Tex. App. 1989).
128
Id. at 297.
129
Id.
94
135
TEX. LOC. GOV’T CODE ANN. § 243.003(a) (Vernon 2009).
136
TEX. LOC. GOV’T CODE ANN. § 243.006 (Vernon 2009).
137
TEX. LOC. GOV’T CODE ANN. § 243.007 (Vernon 2009).
138
TEX. LOC. GOV’T CODE ANN. § 243.003(c) (Vernon 2009).
139
TEX. LOC. GOV’T CODE ANN. § 243.010 (Vernon 2009).
140
Robinson v. City of Longview, 936 S.W.2d 413, 416 (Tex. App. 1996).
141
TEX. LOC. GOV’T CODE ANN. § 243.010(a) (Vernon 2009); TEX. BUS. & COM.
CODE ANN. § 102.004 (Vernon 2009).
142
TEX. LOC. GOV’T CODE ANN. § 243.010(b) (Vernon 2009); TEX. BUS. & COM.
CODE ANN. § 102.005 (Vernon 2009).
143
Flores v. State, 33 S.W. 3d 907, 915 (Tex. App. 2007).
96
144
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 121 (1997), available at
http://library.municode.com/index.aspx.
145
HOUSTON, 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).
148
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. VIII, § 258(c) (1997).
97
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).
152
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. V, §
01(A) (2007).
153
ARLINGTON, 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).
98
155
LAREDO, TEX., CODE OF ORDINANCES, ch. 18A, art. I, § 2 (2002), available at
http://library.municode.com/index.aspx.
156
LAREDO, TEX., CODE OF ORDINANCES, ch. 18A, art. III, § 45 (2002).
157
LAREDO, TEX., CODE OF ORDINANCES, ch. 18A, art. III, § 52 (2002).
158
See supra notes 146-59.
159
Id.
160
Id.
99
161
Id.
162
Id.
163
See supra notes 149 and 159.
164
TEX. LOC. GOV’T CODE ANN. § 243.001 (Vernon 2009).
165
As made famous by Henry Knox.
166
Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).
167
Id. at 557.
168
Curtailing the sexual activity of university students and service members will
certainly be difficult if not impossible in practice.
100
169
See supra notes 149-159.
170
Fantasy Ranch, 459 F.3d at 553.
171
See supra note 2.
172
Fantasy Ranch, 459 F.3d at 553.
173
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 121 (1997).
174
See supra note 149.
175
City 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).
177
See supra note 12.
101
178
DFW Vending v. Jefferson County, 991 F. Supp. 578, 586 (E.D. Tex. 1997).
179
See supra notes 23-26.
180
TEX. LOC. GOV’T CODE ANN. § 243.001 (Vernon 2009).
181
As made famous by Augustine and translated as “an unjust law is no law at all”.
102