Religious freedom IN THE NUDE!

[Brooks Fudenberg]

If you are thinking about writing about this (which sounds interesting),
here's another hypo you might want to consider.  I have several friends
who consider themselves "spiritual/religious" in that they think there is
a Supreme Being, who does concern Itself with our lives, and who is
described by all the great religions.  Further, this belief, and acts in
accordance with it, are an important part of their lives.

Suppose one of them feels a "spiritual need," at the beach, to go without
a swimsuit.  This is because enjoying the ocean, trees, sand, and sea
breeze puts one in touch with what G-d has done for us.  And removing the
attire lets one feel the breeze and the sand more--it makes the person more
"one with the natural order."

*Assuming* (I realize it is quite an assumption) the state can ban the
nude downtown pedestrian, wouldn't my spiritual friend be able to claim
something along the lines of "time, place, manner"--i.e., the state can
forbid the downtown nudity as not proper in that place, but the beach is a
much more proper place?

If the objection is, "Why, that's a family beach," isn't she allowed then
to *require* the state to set aside nude beaches?  (At least where there
is a long coastline, with lots of beaches, as in Florida and South
Carolina?)

Could she make the same claim under the "narrow tailoring" aspect of
heightened scrutiny?

I'd love to see you work the ins and outs of the comparisons of these two
hypos.

Brooks R. Fudenberg
University of Miami School of Law