SALT LAKE CITY — The Utah Supreme Court late last week upheld a South Salt Lake ordinance that prohibits nude dancing at sexually oriented business.
American Bush, a topless club in South Salt Lake, had been waiting for the decision since justices heard the case in November 2003. The club had nude dancers before a local ordinance was passed in March 2001 that required dancers to keep their G-strings on.
Previously, nude dancing was allowed if alcohol was not served.
The club argued that dancing in the nude was protected by the state constitution, but in a 3-2 decision issued July 28 the state’s highest court disagreed.
“Extending free speech protections in this area would run contrary to the intent of the framers of our constitution and the Utah citizens who voted it into effect,” Justice Jill Parish wrote in the decision in American Bush v. City of South Salt Lake.
“Were we to do so, we would not be interpreting our constitution, but substituting our own value judgment for that of the people in Utah when they drafted and ratified the constitution. It is not our place to do so.”
Among the dissenting judges was Chief Justice Christine Durham, who said the ordinance was an unconstitutional restriction of free speech.
“Obviously, the framers of the Utah Constitution did not draft into that document a right to engage in nude dancing,” Durham wrote. “However, because the clear text of the document protects communication, I believe the relevant initial questions are whether nude dancing is communicative and whether nude dancing is an abuse to the right to freely communicate.”
American Bush can keep offering exotic dancing, but the dancers must wear G-strings and pasties over their nipples.
W. Andrew McCullough, an attorney representing American Bush, said he was disappointed, but not surprised with the ruling in a state known for laws that reflect the largely-Mormon population’s conservative morals.
“They said ‘Let’s talk about what the Mormon pioneers must have been thinking about in the 1840s,” McCullough said. “For those of us who practice in the rights in the areas of civil liberties, that’s not a good shift.”
The state Supreme Court decision is final, although McCullough is still hopeful to win in a federal case that also challenges South Salt Lake’s ordinance, based on the secondary effects caused by nude dancing at the business.
McCullough said the idea that his client, which is located in a commercial district of South Salt Lake, is degrading the neighborhood is way off base.
“We think we have good evidence showing to the contrary,” McCullough said.
McCullough hopes the case goes before the U.S. Supreme Court when the justices reconvene in October.