The judges, who are already struggling to keep up with controversies on issues such as abortion and sexual orientation, decided not to get into the New Hampshire case.
Three women active in the "Free Nipple" movement challenged their 2016 convictions for violating an ordinance of Laconia, NH that prohibits the exposure of "the female breast with less opaque coverage of any part of the nipple." They said it violated The Equal Protection Clause of the Fourteenth Amendment because it applies to women but not to men.
One of the women was arrested while doing topless yoga. The other two were arrested days later in a show of support; One of them, a new mother, protested what she called a stigma about breastfeeding.
The challengers urged the higher court to settle a division between the nation's courts, based largely on a ruling by a federal appeals court that overturns a similar public nudity ordinance in Fort Collins, Colorado.
"Gender classifications based on obsolete norms that sexually objectify and embarrass women cannot survive the intensive scrutiny of this court," women's lawyers argued in court documents.
The New Hampshire attorney general, Gordon MacDonald, responded that women were looking for a decision that would require "that all the nation's beaches allow sunbathing topless."
"The petitioners offer no basis to demand such a drastic review of the rules that reflect accepted social norms," MacDonald wrote.