Screw You and the Bike You Rode in On: The City of Sturgis' Unconstitutional Ordinance Prohibiting "Insulting Females"

By Crozier, Clay W. | South Dakota Law Review, Fall 2019 | Go to article overview

Screw You and the Bike You Rode in On: The City of Sturgis' Unconstitutional Ordinance Prohibiting "Insulting Females"


Crozier, Clay W., South Dakota Law Review


I. INTRODUCTION

The first Sturgis Motorcycle Rally (the Rally) was held in 1938. (1) It consisted of a small audience observing a race between nine motorcyclists. (2) Since that time, the Rally has grown exponentially - drawing over 700,000 people in 2015 and generating nearly $2.5 million in tax revenue for the state of South Dakota from vendors alone. (3) However, in hearing the good news of growth and revenue, there is also the bad news of crime. (4) In 2014, 864 people were jailed during the motorcycle rally. (5) One violation that attendees could commit at the Rally is the act of insulting females. (6) The punishment for insulting a female during the Rally is "thirty days imprisonment in a county jail or five hundred dollars fine, or both." (7) This article does not encourage "insulting females;" but rather focuses on the enforceability and constitutionality of this ordinance. (8)

Sturgis Ordinance 12.09.03 provides: "No male person shall make any impudent, insulting or licentious advance or salutation to any female person upon any street, or in any store or other public place." (9) This ordinance presents two constitutional concerns that this article focuses on. (10) First, due to the ordinance's strict application to males, its constitutionality is questionable under the Fourteenth Amendment's equal protection clause. (11) Second, since the ordinance addresses insults (a form of expression), its enforceability and constitutionality is subject to strict scrutiny under the free speech clause of the First Amendment. (12) It is noteworthy that the City of Sturgis revised its ordinances in 1984 - several years after many of the landmark cases mentioned infra. (13)

Section II of this article examines the constitutionality of Sturgis' ordinance under the equal protection clause of the Fourteenth Amendment and the relevant United States Supreme Court precedent. (14) It will conclude that the ordinance is facially discriminatory on the basis of gender and that Sturgis should repeal the ordinance in light of its unconstitutionality. (15) Section III of this article analyzes Sturgis' ordinance under the free speech clause of the First Amendment and both United States Supreme Court and South Dakota Supreme Court precedent. (16) Section III Will conclude that Sturgis should repeal its ordinance because it is a content-based regulation and therefore unconstitutional. (17)

II. EQUAL PROTECTION ISSUES

The Fourteenth Amendment provides: "No state shall... deny to any person within its jurisdiction the equal protection of the laws." (18) This language was a response to the southern states that passed the Black Codes attempting to discriminate against freed African American slaves in the South after the Civil War. (19) Congress responded to the Black Codes by passing the Civil Rights Act of 1866 and eventually the Fourteenth Amendment, leading many to believe that the Fourteenth Amendment only applied to racial classifications. (20) The following precedent rejects those views and has applied the equal protection doctrine to gender inter alia. (21)

A. GENDER AS A QUASI-SUSPECT CLASS

"Boldly dynamic interpretation, departing radically from the original understanding, is required to tie to the fourteenth amendment's equal protection clause a command that government treat men and women as individuals equal in rights, responsibilities, and opportunities. " (22)

1. Craig v. Boren

Craig v. Boren (23) stands for the proposition that gender as a classification should obtain a higher degree of scrutiny than rational basis. (24) In Craig v. Boren, the state of Oklahoma had a law that prohibited the sale of 3.2% beer to "males under the age of 21 and to females under the age of 18." (25) In analyzing the Oklahoma law, the Court relied on Reed v. Reed, (26) declaring that "statutory classifications that distinguish between males and females are 'subject to scrutiny under the Equal Protection Clause. …

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