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Federal Court Ponders Constitutionality of Prostitution Ban

A right to engage in prostitution seems like "a natural extension of Supreme Court precedent," says judge.

Domina Elle/TwitterDomina Elle/TwitterA federal court heard arguments yesterday challenging California's criminalization of prostitution, in a case that could have implications for sex work laws across the nation.

Brought by the Erotic Service Providers Legal, Education, and Research Project (ESPLERP), the constitutional challenge claims that California's prostitution laws violate residents' right to privacy, free speech, and free association.

"Our hope is to see this bad law struck down," said ESPLERP President Maxine Doogan, "so that consenting adults who choose to be involved in prostitution are simply treated as private citizens again, and are afforded all the privacy and constitutional rights thereof."

During oral arguments before Ninth Circuit Court of Appeals judges Thursday, ESPLERP attorney Louis Sirkin stressed that the case "is not about sex trafficking, it's not about the abuse of women, and it's not about the abuse of minors. It is about consenting adults that voluntary want to work in the sex for hire industry."

Dozens of civil rights, public health, and LGBTQ groups have filed briefs in support of ESPLERP's challenge, including the American Civil Liberties Union of Southern and Northern California, the California Women's Law Center, the anti–sex trafficking group Children of the Night, the First Amendment Lawyers Association, the National Center for Transgender Equality, the San Francisco AIDS Foundation, the Woodhull Freedom Foundation, and Lambda Legal.

"Lambda Legal's landmark Supreme Court victory in Lawrence v. Texas, the case that struck down laws that criminalized sex between same-sex partners, underscored that our right to liberty protects our decisions about adult, consensual sexual intimacy," says Kara Ingelhart, a Lambda Legal law fellow. "It is merely logical that Lawrence extend to the adult, consensual sexual intimacy that occurs between sex workers and their clients; the fact that money is exchanged shouldn't matter."

The Ninth Circuit judges seemed at least somewhat sympathetic to that view. "Why should it be illegal to sell something that you can give away for free?" Judge Consuelo Callahan asked the state's attorney, Sharon O'Grady. She replied that it should be illegal because the legislature declared it so.

Judge Carlos Bea suggested that the state's arguments for why it could ban prostitution also would allow California to ban one-night stands.

But overall, it might be "a tough panel for petitioners," notes lawyer Amanda Goad, who livetweeted the oral arguments yesterday. Callahan and the other two judges are conservative appointees of George W. Bush and Ronald Reagan.

Much of the court's focus Thursday was on whether a ban on prostitution implicates adults' sexual liberty and privacy or their right to form intimate relationships as they see fit. The U.S. District Court that heard ESPLERP's challenge last year contended that only "intimate personal relationships," not purely sexual ones, were protected from state interference per the Supreme Court's 2003 ruling in Lawrence.

Sirkin pointed out Thursday that, in fact, the men who had been arrested in Lawrence were not in an ongoing relationship. He said that the fundamental right implicated here, as in Lawrence, concerns sexual privacy.

Judge Callahan agreed that a ruling for the right to engage in prostitution seemed like "a natural extension of Supreme Court precedent."

At one point, the discussion veered into whether sex workers and their customers could be friends, with the state contending that friends don't pay each other for sex. But judges suggested that a relationship that started off as purely transactional and sexual could develop into true friendship and affection.

Ultimately, much of the case will come down to whether the lower court was right to apply a rational basis standard in judging California's prostitution law. Under the rational basis standard, a law is constitutional so long as it is "rationally related" to a "legitimate government interest." ESPLERP and its supporters argue that the court was wrong to apply this standard and should have applied the heightened scrutiny standard used in Lawrence.

Judge Bea suggested that the case might need remanded to the district court for another judicial review or even a trial in which the state would have to prove a compelling need for its prostitution ban.

Photo Credit: Domina Elle/Twitter

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  • Crusty Juggler||

    Bad luck is gonna rain on someone.

  • Hugh Akston||

    Bad Luck was Citizen X's nickname in college.

  • Mitsima||

    Good news, you might not have use the euphemism, "working from my home", much longer.

  • Shirley Knott||

    ES PLERP ?? Seriously?
    Can we please please pronounce it 'splurp'?

  • ||

    ESPLERP is more inclusive for latinos

  • Jima||

    Ding! Ding! Ding! ^ Thread Winner!

  • Hank Phillips||

    We Latinos demand joo pronounce it ESPLERPee, 'cause we don' like endings weeth hard consonants.

  • Think It Through||

    Erotic Service Providers Legal, Education, and Research Project seems poised and ready to transition to Erotic Service Providers Local 101.

  • Liberty =><= Equality||

    Sounds like your mom when she blows me.

  • Crusty Juggler||

    and Lambda Legal.

    Why aren't the Omega Mu's aren't on board?

    HA!

  • Crusty Juggler||

    She replied that it should be illegal because the legislature declared it so.

  • Enjoy Every Sandwich||

    I suppose that is the polite version of FYTW.

  • Leo Kovalensky||

    If the judge is paid to FYTW, is it illegal? I certainly didn't consent to this.

  • $park¥ leftist poser||

    Is it illegal because the legislature declared it so or did the legislature declare it so because it's illegal?

  • BestUsedCarSales||

    I repeated that to the guy next to me and he was so enlightened that his head exploded like that guy in Scanners.

  • Crusty Juggler||

    I repeated that to the guy next to me my penis and he was so enlightened that became so aroused his head exploded like that guy in Scanners. it did earlier this morning.

  • BestUsedCarSales||

    No, my penis is currently in a chrysalis state. Which is what I call the stage when it is currently too calloused to feel anything. Now is a time for healing.

  • Hugh Akston||

    Some coarse steel wool and a little turpentine should strip that right off for you.

  • BestUsedCarSales||

    That's short term thinking. Currently it's in a condom (ONE's new Healing Blow brand condom) filled with oleo. Giving it time to recover.

  • Chipper Morning, Mean Girl||

    Don't worry, BUCS, you'll meet the right girl some day. There she will be, walking down the street, tripping over her pubic hair.

  • Hank Phillips||

    Yeah, as in coathanger abortion laws in 1970. Look, if it turns whoring is constitutionally illegal, we may as well disband the Texas State Legislature, no two ways about it.

  • Cy||

    WHAT ABOUT THE CHILDREN!?!!?

    What about the blatant sexual harassment?

    #metwo

  • Eidde||

    Of course a right to prostitution would be a logical extension of the "right to sexual privacy" - if of course the courts are relying on logic.

    But if the courts were relying on logic, where did they find the right to sexual privacy?

    If you say, "but the *result* is good, and the Constitution can't be bad!" then how do we deal with the 16th and 17th Amendments? Those parts of the Constitution are bad, are they not?

  • Eidde||

    We've seen the same judges who are willing to add *new* rights to the Constitution (sexual privacy, etc.) enthusiastically *remove* rights from the Constitution (2nd Amendment, for example).

    If it bends one way, it can bend the other.

    (And don't say "what about the 9th Amendment," because I don't see how the people could have "retained" the right to boink as of 1791, since that wasn't a recognized right at the time)

  • Eidde||

    (and to give a "right-wing" example of a right I don't think is in the constitution, there was IMHO no recognized right of innkeepers to reject paying, well-behaved customers, yet this is part of a "purist" libertarian platform)

  • Chipper Morning, Mean Girl||

    It's good to have you back, brother.

  • Eidde||

    You like me, you really like me!

  • Jimothy||

    I'm not the a learned historian, but I'm pretty sure that people were boinking back in 1791, and I'd venture as guess that they recognized such boinking as right. If boinking isn't part of the pursuit of happiness, I don't know what is!

  • Jimothy||

    And apparently, I'm not a scholar of spelling and grammar, either. Yikes!

  • Hank Phillips||

    Canada's straddle is the reverse of the US approach to felony light beer. Until Hoover was voted out, you could buy and drink beer without a federal case, but you could not make, sell or move it. In Canada you can now twirl your purse but your customers get frogmarched into a Black Maria.

  • Robert||

    But if the courts were relying on logic, where did they find the right to sexual privacy?


    The Griswold case boiled down says if it weren't for sex we wouldn't exist, therefore the Constitution wouldn't exist, therefore sex is more fundamental than the Constitution. If you don't believe me, read the decision yourself & try to boil it down.

  • MoreFreedom||

    The 9th amendment says "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Wouldn't the right to privacy and right to sexual privacy be included.

    I'm waiting for a Senator to ask a judicial nominee to list some "others retained by the people". Given the statists in government, I won't hold my breath.

  • Diane Reynolds (Paul.)||

    violate residents' right to privacy, free speech, and free association.

    ESPLERP goes full racist?

  • Mitsima||

    Indeed. I was too privileged to see it.

  • Thomas O.||

    Something tells me that because business transactions are involved in prostitution work, the SC will ultimately let the ban stand, because Commerce Clause.

  • Zeb||

    But this is about a state law, isn't it? I don't see how the commerce clause comes into play there.

  • Longtobefree||

    One or the other(s) engaged in the sexual activity, may have, at some time, seen an ad for travel out of state.

    I mean, check for the case of (evil) guns manufactured only in Montana, from parts manufactured only in Montana for sale only in Montana, labeled as for sale only in Montana being found to still be subject to federal regulations.
    (ninth circuit, of course.)

    Hint:
    the Ninth Circuit panel unanimously ruled that Congress could regulate the internal manufacture of firearms within Montana because the creation and circulation of such firearms could reasonably be expected to impact the market for firearms nationally.

  • Hank Phillips||

    Prohibitionist looter bigots understand. They'll use and form of Commerce Clause obscurantist grunting to get them cop guns pointed at Jezebels and Magdalenes, hippies, naygurs, suicide berserkers, commie atheists, Slants and yew-name-its in the name of Ghawd AND Allah both.

  • Liberty =><= Equality||

    Commerce Clause doesn't have anything to do with state laws.

  • Thomas O.||

    Unless Wickard v. Philburn got overturned, they'll use the Commerce Clause excuse on state laws too.

  • Liberty =><= Equality||

    But overall I think you're on to something. "Commercial speech" has less first amendment protections than other speech, so they could argue that "commercial sex" has less protection than uncompensated (or informally compensated) sex.

  • Uncle Jay||

    RE: Federal Court Ponders Constitutionality of Prostitution Ban
    A right to engage in prostitution seems like "a natural extension of Supreme Court precedent," says judge.

    Prostitution has been going on in this country for centuries.
    Just look how many senators, presidents and congressmen have been elected down through the years.

  • Delius||

    Congratulations, you are the lucky winner for being the 10,000th person to make this clever, witty observation!

  • LarryWilson||

    Let's get this shit done. I'm tired of pretending to like the women I'm fucking.

  • Sean Higgins||

    "'Why should it be illegal to sell something that you can give away for free?' Judge Consuelo Callahan asked the state's attorney."

    The judge is quoting George Carlin, I am certain. I remember that line from one of the late comedian's routines.

  • Could not connect to remo||

    I also am reminded of the expression, that is an allusion to sex and marriage, about how owning a cow negates the need to pay for milk.

  • SecedeTexas||

    This is taking the incorporation doctrine to its extreme and is completely ridiculous. Prostitution bans are immoral and terrible policy, but they are not a constitutional violation at the federal level.

  • ||

    Yeah it says rigjt there in the constitution that women dont own their own vaginas, the feds do.

  • John C. Randolph||

    Hmm. If they win at this level, I wonder if Governor Moonbeam's minions will bother trying to appeal it?

    -jcr

  • Hank Phillips||

    Sharon O'Grady hasn't read Heinlein's "The Star Beast." If she had she'd know that the law says whatever you can get a court to say it says. But it took 14 years of felony light beer and ridicule in the eyes of the world for the Prohibition Amendment and Volstead Act to be struck down. Economic collapse from asset-forfeiture plus the formation of a pro-repeal Liberal Party settled that. None of the looter parties had such a plank any more than when a single Libertarian electoral vote prompted the US Suprema Corte to copy the LP abortion plank into Roe v. Wade. What you are seeing is the multiplication of the law-changing clout of Libertarian spoiler votes thanks to the asset-forteiture Depression and the 4 million LP votes swinging the gap for states casting 89 electoral votes in 2016. Ku-klux hillbillies and altruist econazis will never know what hit their sumptuary laws.

  • AmyR||

    Research shows that legalized prostitution leads to an increase in trafficking, not a decrease as one would think. http://www.sciencedirect.com/s.....0X12001453 As much in favor as I am of individual rights and as much as I would like to agree with Doogan, the safety of minors must be considered. Trafficking happens everywhere, including America, and it's important to consider the research.

  • MoreFreedom||

    The research to which you linked, doesn't seem to consider what would happen if all nations legalized prostitution.

    And aren't you harming willing prostitutes and kind of enslaving them from their desired job, because some other people want to enslave others as sexual prostitutes? That's kind of like telling pharmacists they can't sell drugs anymore, because illegal drug dealers exist.

  • AmyR||

    Given your example of pharmacists, it seems to me that it would be more like saying, "You can't sell drugs because the cartels would only get bigger and keep doing illegal things, but it would be harder to stop them." I agree that it's only one study and it's hard to conjecture what would happen in the US. Like I said, I'm perfectly fine if one adult wants to pay another consenting adult to do whatever in a back room and I don't know for certain that illegal trafficking would go up if we legalized it. But it's important to consider an issue from multiple angles and think about how it would affect others as a whole.

  • AmyR||

    Given your example of pharmacists, it seems to me that it would be more like saying, "You can't sell drugs because the cartels would only get bigger and keep doing illegal things, but it would be harder to stop them." I agree that it's only one study and it's hard to conjecture what would happen in the US. Like I said, I'm perfectly fine if one adult wants to pay another consenting adult to do whatever in a back room and I don't know for certain that illegal trafficking would go up if we legalized it. But it's important to consider an issue from multiple angles and think about how it would affect others as a whole.

  • WhereYou'reWrong||

    The safety of minors IS considered: underage prostitution would remain illegal, as would trafficking minors. Legalizing prostitution brings what now must be hidden out of the underground and makes enforcement of the remaining laws easier. Legal businesses are easier to find, monitor, and regulate, and have a greater stake in complying with the law and reducing illegal competition. Limited law enforcement resources can then be truly targeted at actual trafficking instead of the low hanging fruit of consensual adult prostitution.

    Let's not ignore the conclusion of the very article you linked: "The likely negative consequences of legalized prostitution on a country's inflows of human trafficking might be seen to support those who argue in favor of banning prostitution, thereby reducing the flows of trafficking (e.g., Outshoorn, 2005). However, such a line of argumentation overlooks potential benefits that the legalization of prostitution might have on those employed in the industry. Working conditions could be substantially improved for prostitutes—at least those legally employed—if prostitution is legalized. Prohibiting prostitution also raises tricky "freedom of choice" issues concerning both the potential suppliers and clients of prostitution services. A full evaluation of the costs and benefits, as well as of the broader merits of prohibiting prostitution, is beyond the scope of the present article."

  • Could not connect to remo||

    "Friends don't pay each other for sex. But judges suggested that a relationship that started off as purely transactional and sexual could develop into true friendship and affection"

    For as long as I can remember, men have been paying women for the privilege of having sex with them. The only distinction here is that men weren't forking over cash to fornicate but were spending a lot of cash to entertain the women they dated and buying them expensive gifts in what has long been an accepted barter system for giving and getting sex.

  • Mitsima||

    Tindr - finding the cheap dates since 2012.

  • Starchild||

    It's not just men paying women for sex. There are a whole bunch of male and transgender sex workers, and our clients include women and couples as well as men.

  • Robert||

    "Why should it be illegal to sell something that you can give away for free?"

    That'd apply to a slough of things. Nearly every law restricting sale of products or services doesn't apply when it's given away for free.

  • n00bdragon||

    The state contending that friends don't pay each other for sex.

    Can the government please provide me a list of things that friends are and are not allowed to pay each other for? Can my friends not chip in for dinner? If so, how close do friends have to be before they're not allowed to pay for that either? What about non-sex erotic activities? Can I pay for a friend to give me a handjob? What about stepping on me if I'm into that? This ban on friend's paying each other just raises so many questions.

  • WoodChipperBob||

    That was my first thought when I read that. Of course, the state does provide some lists of things that friends aren't allowed to pay each other for (which still doesn't make it a valid argument to me ). Depending on the jurisdiction, a friend can't pay you to give them a ride somewhere, paint their kitchen, cut their hair, or any of the other things the state decides that it wants to require licenses/permits for.

  • Ned Netterville||

    Representatives of the sex-workers industry could get legislators as well as judges to allow them to operate. Just suggest workers would be willing to pay a 20% sex tax and they'll buy the argument faster than a john can drop his trousers. Those guys and gals who legislate and adjudicate have an orgasm just thinking about more tax revenues. And the sex workers themselves, not their lawyers, should make their ORAL argument beneathXXX, er, before the judges. That should persuade 'em.

  • Starchild||

    Sure, we know government is greedy and corrupt. But why should we volunteer to pay an extortionate tax rate? The point here is to get government off people's backs, not replace one form of tyranny with another nearly as bad.

    On an unrelated point, politically conscious sex workers generally refer to our customers as clients, not by the demeaning slang term "johns", which is often used by law enforcement to degrade the professional relationship and to falsely suggest that all of them are male.

  • ||

    But will ENB still be free to make me a sammich? Cuz she nneds a back up plan in case the trust fund job dries up.

  • Enemy of the State||

    "ESPLERP"? That's the best acronym they could muster?

    Why not PUSSY - Prostitutes United with Sex-workers Satisfying You

    or WHORE - Women Handling Our Righteous Eroticism

    or SLUTS - Sex-workers Legally United To Serve

    or PROS - Prostitutes Realizing Our Self-worth

    But ESPLERP? Geez Louise....

  • MoreFreedom||

    Is government realizing there's more money to be made in regulating the sex industry rather than trying to prohibit it? I'd imagine politicians like Bill Clinton would love to discuss who gets to go into the business, in his bedroom.

    If people have the freedom to do things behind closed doors, how about doing business behind closed doors so government doesn't get its take? Seems like some slippery slopes here.

  • Mitsima||

    Interviewer: What does ESPLERP mean to you?
    Interviewee: Erotic Service Provi
    er: Yes, yes. But what does it mean _to you_?
    ee: Someone really wanted to use the acronym ESPLERP

  • flyfishnevada||

    "...with the state contending that friends don't pay each other for sex."

    No, friends buy dinner, flowers, bottles of wine but they don't exchange cash. Totally different...

  • Starchild||

    As an erotic service provider, I sometimes accept non-cash items in barter for my services. I've also known of situations between friends where one person will pay cash to cover another's cab ride for the purposes of getting together, etc.

  • Shoreline1||

    I couldn't agree more.

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