by Alexander Freeling


Justice, when it comes, can be by act or omission. There are moments when the machinery of state moves to right inequity, and moments where it must relinquish power to do so. A case of the second kind occurred in May 1937, in Albany, seat of the New York Court of Appeals.

The case in question concerned a June day the summer before, when Rose O’Gorman and William Matthias were walking through Yonkers, NY, Rose wearing “yellow short pants and a colored halter,” sandals but no stockings, and William white sneakers and socks, “yellow trunks, short pants, a blue polo shirt” and, like his companion, no hat. It was a searing hot summer (that July it would break triple digits Fahrenheit in the city) and you might think our protagonists could be granted their colorful if limited garments. But a patrolman who encountered the pair did not.

The officer, Chief Judge Frederick E. Crane would later note, acted lawfully in arresting the pair: due to a city ordinance it was forbidden “to appear in bathing costume or in any other than customary street attire upon any public street or thoroughfare in the City of Yonkers.” Those “yellow short pants” may not have been bathing attire, but nor were they “customary,” and so the question before Crane and his fellow judges was not the legality of the arrest, but the validity of the ordinance, on which the case had been upheld by Westchester County Court, and sent up to Albany on appeal.

Like “cruel and unusual punishment,” the meaning of “customary attire” depends on context. In some cases, like black tie or ball gowns at the beach, or yellow short pants in the summer of 1936, a breach of the standard is clear enough. But pace those purveyors of etiquette rulebooks, customs are fluid, transitory things, neither unchanging year on year nor immutable on any given day. For this reason and others, Crane ruled the ordinance unconstitutionally vague, in fact “so vague and meaningless as to reach many harmless and insipid foibles.”

In an age of few (and aging) heroes on the judicial bench, Fred Crane seems like a good egg. Amongst his other notable rulings are a finding that a woman is not obliged to yield “management and control of the home” to her mother-in-law if the latter moves in, and a 1918 judgement in The People vs. Sanger which ensured the right of physicians to prescribe contraception.

Disappointingly, we have no record of the hosiery, colorful, skimpy, or otherwise, worn by the appellants when they came to Albany to appeal their conviction. I would like to think they pushed the sartorial envelope once more, but in all probability they did not. When one is hoping to get off the hook there are plenty of clothing choices which, while not illegal, are far from wise. And this is the essence of Crane’s point: outside of the threateningly or troublingly lewd, those judgements are best left to the citizens. The law does not regulate our wisdom and folly. But the Chief Judge does offer this pearl in defense of our short-panted comrades: “customary, not exceptional, street attire has rather a drab appearance; if some desire to color it up a bit, where is the harm?”