No constitutional right to engage in prostitution

|The Volokh Conspiracy |

Last week's federal district court decision in Erotic Service Provider Legal Educ. & Research Project v. Gascon holds that there's no constitutional right to engage in prostitution.

That has long been the conventional understanding, but it's an interesting question why exactly this is so. Lawrence v. Texas is reasonably read, I think, as securing some constitutional right to sexual autonomy; and most constitutional rights include a right to spend money to exercise the right. It would clearly be unconstitutional for the government to say:

  1. "you can have an abortion but you can't pay for it";
  2. "you can send children to a private school but only if it's free";
  3. "you can publish a newspaper but you can't spend money on it"; or
  4. "you can engage a lawyer for your criminal trial but only if he's a volunteer."

And this is so even though such payments may cause results that some people view as harmful (e.g., the propagation of economic inequality into inequality in education, defense against criminal charges, and political activity.) There's controversy about whether the government could limit spending on particular kinds of speech, such as speech about elections; but there's broad agreement that most spending on speech—and the other constitutional rights I mention—is indeed constitutionally protected.

The court explains its reasoning this way:

The relationships granted protection by the Fourteenth Amendment "are those that attend the creation and sustenance of a family" and similar "highly personal relationships." "The individuals are deeply attached and committed to each other as a result of their having shared each other's thoughts, beliefs, and experiences. By the very nature of such relationships, one is involved in a relatively few intimate associations during his or her lifetime." The Supreme Court has held that the Constitution protects "those relationships, including family relationships, that presuppose 'deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.'" Board of Directors of Rotary Int'l v. In the context of intimate relations, "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." Lawrence v. Texas.

The Ninth Circuit has determined [in a pre-Lawrence case] that a couple comprised of an escort and a client

possesses few, if any, of the aspects of an intimate association. It lasts for a short period and only as long as the client is willing to pay the fee…. While we may assume that the relationship between them is cordial and that they share conversation, companionship, and other activities of leisure, we do not believe that a day, an evening, or even a weekend is sufficient time to develop deep attachments or commitments. In fact, the relationship between a client and his or her paid companion may well be the antithesis of the highly personal bonds protected by the fourteenth amendment.

Similarly, here, the Court finds precedent dictates that the intimate association between a prostitute and client, while it may be consensual and cordial, has not merited the protection of the Due Process Clause of the Fourteenth Amendment. See, e.g., Lawrence (distinguishing its holding from application in the context of public conduct or prostitution); Muth v. Frank, 412 F.3d 808, 818 (7th Cir. 2005) (holding that, pursuant to Lawrence, there is no cognizable fundamental right to private consensual sexual conduct). Having defined the asserted right to constitutional protection within a particular relationship, and having found that the
relationship has not historically been granted recognition as fundamental, the Court finds that
Section 647(b) does not challenge a fundamental right requiring the application of strict scrutiny in assessing its constitutionality….

This Court finds that, following the holding in Lawrence, moral disapproval is not an adequate or rational basis for criminalizing conduct. However, there are "justifications for criminalizing prostitution other than public morality, including promoting public safety and preventing injury and coercion." Accordingly, the Court finds that Defendant has proffered sufficient legitimate government interests that provide a rational basis to justify the criminalization of prostitution in California.

I'm inclined to think this is generally right (as I briefly noted in 2007 in this article, at p. 1836). I don't think I'd treat Lawrence as limited to relationships that are already "deeply attached and committed" (which would exclude casual sex as well as prostitution); rather, I think that case is best read as focusing on the special potential of noncommercial sexual activity to promote emotional relationships, which I suspect is greater than the potential of commercial sexual activity to do so. Still, in general, I do think that prostitution is different enough from noncommercial sex to be outside the scope of Lawrence. Though my tentative view is that prostitution should be decriminalized, and that bans on prostitution do more harm than good, I don't think that prostitution is constitutionally protected.

But in any event, this struck me as an interesting case to pass along.