AuthorCrozier, Clay W.

    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)


    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)


      "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.'" (27)

        However, the Court did not restate what is known as traditional strict scrutiny (government must show a compelling state interest and the action must be the least restrictive alternative); instead, it stated that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." (28) Justice Brennan, in authoring the Court's opinion declared that any form of "administrative case and convenience" did not suffice as an important governmental objective. (29) The Court ruled that after Reed, states had to either tailor their laws to be gender neutral or only adopt procedures where the "sex-centered generalization actually comported with fact." (30)

        Ultimately, the Court held that Oklahoma's distinction between males and females was unconstitutional. (31) In reaching this conclusion, the Court conceded that Oklahoma's underlying interests of enhancing traffic safety and protecting public health were important government objectives. (32) However, it ruled that the gender distinction under Oklahoma's statutes was not substantially related to these interests. (33) Oklahoma produced five statistical surveys to bolster its argument:

        First, an analysis of arrest statistics for 1973 demonstrated that 18-20-year-old male arrests for "driving under the influence" and "drunkenness" substantially exceeded female arrests for that same age period. Similarly, youths aged 17-21 were found to be overrepresented among those killed or injured in traffic accidents, with males again numerically exceeding females in this regard. Third, a random roadside survey in Oklahoma City revealed that young males were more inclined to drive and drink beer than were their female counterparts. Fourth, Federal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for "driving under the influence." Finally, statistical evidence gathered in other jurisdictions, particularly Minnesota and Michigan, was offered to corroborate Oklahoma's experience by indicating the pervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol. (34) Despite Oklahoma's efforts, the Court found that the data was "weak" to the equal protection question and that the correlation between gender and drunk driving merely established a 2% correlation. (35) The Court further ruled that "[i]t is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique." (36) This led the Court to hold that Oklahoma's invidious gender-based discrimination against men constituted a denial of equal protection under the Fourteenth Amendment because the law was not substantially related to the government's interest. (37)

      2. Michael M. v. Superior Court

        In Michael M. v. Superior Court, (38) the Court ruled that a statutory rape law where only men could be liable was constitutional under the equal protection doctrine because preventing teenage pregnancy was an important state interest and the statute was substantially related to that interest. (39) The statute at issue outlawed: "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." (40) Thus, only men were criminally liable under the statute. (41)

        In this case, a complaint was filed against the petitioner, who was a 17 1/2-year-old male, alleging that he violated the statutory rape statute. (42) The evidence presented showed that Petitioner and Sharon, a 16 1/2-year-old female, met at a bus stop, had been drinking, and the two began to kiss. (43) Eventually, Sharon submitted to Petitioner's sexual advances after being struck in the face. (44) Petitioner challenged the statute and the Supreme Court of California upheld it. (45) The United States Supreme Court affirmed. (46)

        The Court, however, rejected the Supreme Court of California's application of strict scrutiny and applied the intermediate scrutiny analysis advanced in Craig v. Boren. (41) The Court clarified that equal protection does not require:

        [t]hat a statute necessarily apply equally to all persons or require things which are different in fact... to be treated in law as though they were the same, this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. (48) In fact, legislatures can "provide for the special problems of women." (49) However, the Court noted that "[inquiries] into congressional motives or purposes are a hazardous matter, and the search for the 'actual' or 'primary' purpose of a statute is likely to be elusive." (50)

        Therefore, in determining the governmental interest at stake, the Supreme Court deferred to the Supreme Court of California's recognition that preventing illegitimate teenage pregnancies and privatization of dependency were the governmental interests asserted. (51) The Court found these to be important government interests not because it was relying on archaic gender stereotypes, but rather, it relied on facts such as "virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female[.]" (52) For this reason the Court rejected petitioner's argument that the statute was "underinclusive and must... be broadened so as to hold the female as criminally liable as the male." (53) Thus, the Court ruled that the law was substantially related to the government's interest because a gender-neutral law would frustrate the interest of enforcement and females suffer consequences of sex and pregnancy that men do not. (54)

      3. United States v. Virginia

        In United States v. Virginia, (55) the Supreme Court ruled that single-sex public institutions were unconstitutional under the equal protection clause of the Fourteenth Amendment. (56) There, the Virginia Military Institute (VMI)...

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