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At issue is whether the ordinance discriminates against women by prohibiting them from appearing topless at the beach while men can go topless. Both were cited by police for appearing topless at Gilford Beach on Sept. The citations are violations and not crimes. The hearing and testimony were all part of a motion to dismiss the charge filed by Lilley and McKinnon against the town of Gilford.
He said his clients are being prosecuted only because they are women and that if the beach passed an ordinance that no Asians could go there, no one would be arguing about the wrongness of such a law.
Judge Jim Carroll asked him how this set of circumstances and prohibition of a specific race or ethnicity were the same. The state was represented by Gilford prosecutor Eric Bredbury, who said the safety and orderly conduct of beach-goers is the primary reason for the ordinance.
Brebury said laws and rules are put in place when the state sees a need for them. He cited a decision from the New Jersey Supreme Court that upheld a charge against a woman who appeared topless and whose case was argued under the same First and Fourteenth Amendment rights. While prosecution witnesses testified as to what they saw, they also made their opinions known that toplessness at the beach is unacceptable at Gilford Beach — a private beach open only to residents and their guests — which is what two of the witnesses said is what makes Gilford a good place to live.
Under cross examination, she said it was the upset children that really upset her and that she would have no objection to a woman with a double mastectomy going topless nor would she object to two same-sex people kissing at the beach, because it is the societal norm. Aaryn Demers testified for the prosecution and she was in her truck, parked in the parking lot, while her husband and year-old son were at the beach.