It's time for the adult community to step up, and help fund ESPLER v GASCON which is already in the 9th district court of appeals challenging the CA prostitution law which is similar to the law in most sates including Arizona. A win could decriminalize consenting adult prostitution in the 9th District. If there were a similar case in another district with a different result the case could go to the U.S. Supreme Court.
9th Circuit Appeals Court case No. 16-15927 EROTIC SERVICE PROVIDER LEGAL EDUCATION & RESEARCH PROJECT, ET AL., v. GEORGE GASCON, ET AL - One of best I have seen with all the legal issues, expanding beyond Lawrence v. Texas. Attorney for ESPLERP includes H. Louis Sirkin, noted 1st Amendment attorney who has won other noted constitutional free speech cases closely related to sexuality.Good discussion and donation to support link at
http://coyoteri.org/wp/what-is-esplerp-v-gascon/
Full Brief (easier to read than on esplerp site) at
http://phxlist.com/forum/attachment.php?aid=703 Amicus Briefs Filed In Support Of ESPLERP v Gascon
1) Children of the night Amicus brief
9th Circuit Amicus brief lays out the harms of the prostitution law vs decriminalization While prior Amicus and the Appeal Brief have focused mostly on the complex constitutional and other legal issues challenging the prostitution law this brief is excellent laying out the harms of prostitution. While Children of the Night that filed it may be more on the street work side for which it will be easier for the State to show a compelling interest, the harms also apply to private adults that are not desperate on the streets but funding college etc, raising children and since private have more support from Lawrence v. Texas and other cases based on privacy and not as a public nuisance. The brief presents a great argument about the lower Court not taking the issues seriously and just dismissing them in their summary judgment. The brief argues to remand the case back to the lower court for a full trial.
http://esplerp.org/wp-content/uploads/2016/10/Children-of-the-Night-amicus.pdf 2) Lambda Legal Defense & Education Fund Brief
Addressing public harms inflicted by criminalization of commercial sexual activity. Does a great job of arguing that rational basis review (which is a key legal element of the States reply brief against ESPLERP and in the Lawrence case) requires the Court to consider not only whether the State has argued a compelling government interest, but also whether the statute is rationally related to advancing that government interest. http://esplerp.org/wp-content/uploads/2016/10/lambda-brief.pdf 3) ACLU Amicus Brief
The ACLU brief is mostly about discrimination in its application. Although not the main point of the ESPLERP case, I do especially like the following: Contrary to State’s contention that 647(b) protects women from violence, numerous studies have concluded that criminalization of sex work exposes women to more violence, including by the police. (long list of references) It mostly argues the law is discrimination against transgender women, gay men, LGBTQ Youth and women. This seems a very narrow basis vs. most of the other briefs since the majority of consenting, private adult sexwork is heterosexual.
http://esplerp.org/wp-content/uploads/2016/10/22-Brief-of-American-Civil-Liberties-Union-Foundation1.pdf
4) First Amendment Lawyers/Woodhull Freedom Foundation Brief
Argues first amendment issues
http://esplerp.org/wp-content/uploads/2016/10/Brief-of-Amici-Curiae-First-Amendment-Lawyers-Assn-Woodhull-Freedom-Foundation.pdf The Opposition
There are also many opposing briefs by the parties and Amicus Brief's arguing to uphold the prostitution law filed the latest in December by:
National Center on Sexual Exploitaion, Covenant House California, Freedom from Exploitation, Coalition Against Trafficking in Women, SPACE International, Equality NOW, Demand Abolition, Chicago Alliance Against Sexual Exploitation, WSU Center for Combatin. The above groups support the current prostitution law with the usual arguments decriminalization would result in more sex trafficking and abuse of women (we argue the opposite). On 12/12/2016 ESPLERP requested extension of time to file reply briefs which was granted to 1/13/2017. Link to this announcement and will update:
http://phxlist.com/forum/showthread.php?tid=18975
If this is upheld by the 9th Circuit, does this actually decriminalize prostitution? I'm not a lawyer so reading those briefs is a non-starter.
2nd. If this is upheld, isn't it likely that at least 1 AG in the states affected take this to the SCOTUS? If that happens, how do you see this playing out?
Being likely that Trump will nominate a justice that will be very conservative, most likely an originalist, how do you see the vote ? Will the court see this as a libertarian issue? As a state's purview issue? It's hard for me to see the SCOTUS viewing this as a discrimination issue or a protection issue.
Thanks, you do a lot of excellent reporting on legal issues.
The case before the 9th Circuit is a constitutional challenge to the California law since the litigants only had standing in CA. However, CA law is almost the same as Arizona and most States.
A great new reply to the States answer has just been filed. If we lose it should be over since this case has very good lawyers and in my non lawyer view brilliant arguments against the States positions with lots of cites and legal stuff. I've been reading briefs for over a decade in cases and it is really good - again in my non lawyer view.
If we win (prostitution law unconstitutional like Canada ruled a few years ago) it technically only applies to California.
However, since Arizona law is almost the same it would be a strong defense argument for any cases still pending after the 9th decision (if favorable). Arizona of course is in the 9th but the Arizona AG will probably fight any dismissal argument and would have to get to our Appeals level. Or, someone with standing filing a special action in Arizona Federal Court just like they did in CA. Probably strong likelihood of winning for all states in the 9th Circuit.
For other federal circuits, does not act as a precedent - but powerful argument.
If in a different circuit gets to Appeals and x circuit appeals goes the opposite of the 9th the State could try and get it heard at the Supreme Court.
Only a U.S. Supreme Court ruling would end the legal fight. However, if we win the current 9th Circuit we certainly will be at an advantage.
Yes, court political make up could make a difference. Often our 9th Circuit is considered the more liberal vs others. Also the Lawrence Supreme Court decision that the State has no business in private bedrooms and laws can not be based on morality was a split 5-4 decision mostly based on the conservative vs liberal judges. Soon, we may have a more conservative Supreme Court which is against us. I don't know the breakdown of circuit courts.
The complex legal issues involve freedom of expression, privacy etc but this ties into issue of if sex is a fundamental right or not and does this extend to commercial sex vs Lawrence v Texas. Tied into this is States "compelling interest." The State argues prostitution is associated with crimes such as drugs, pimps, sex trafficking, abuse of women etc.
Canada Supreme Court was convinced being illegal INCREASES the harm the opposite of the anti's view that no women would ever choose prostitution unless forced into it. A vice cop testified recently in Maricopa Superior Court that in over a decade of vice never met a "prostitute" who was not coerced. (Phoenix Temple case of 38 wonderful very consenting women and leader in prison for 4 years, and others took felony pleas for probation).
-- Modified on 1/20/2017 7:33:03 PM