Lost 9th Circuit Challenge to Prostitution Law
Sadly the 9th Circuit unanimously ruled against ESPLE's challenge to the prostitution law on 1/17/2018.
The court rejected the assertion that Lawrence v. Texas created a liberty interest that prohibits a state from criminalizing prostitution.
The Court held the prostitution relationship is not protected by the due process clause of the 14th Amendment.
The Court held 14th Amendment is not violated based on freedom of intimate or expressive association.
After the 10 page opinion, a seven-page article exhibit was included: "HIV Risk Among Persons Who Exchange Sex for Money or Nonmonetary Items" showing the rate of HIV is high among persons who exchange sex for money.
We are waiting to see if Supreme Court appeal will be tried, but could be very expensive.
The results are disappointing especially since the questions at the Oral Hearing seem to have arguments in our favor to find the prostitution law unconstitutional.
The U.S. Constitution does not have the same "harm reduction" aspects as the Canadian Charter of Rights and Freedoms where prostitution laws were declared unconstitutional in 2013 since being illegal increases harm - "create severe dangers". The opposite view of the U.S.
Followup on 9th Circuit case loss
The ruling said that paying for sex didn’t count as the type of “intimate conduct” that Supreme Court justices had in mind in the Lawrence case.
The organization’s lead attorney, Louis Sirkin, said he was considering asking for a rehearing in front of the full Ninth Circuit. The ruling was by a three-judge panel.
“We’re disappointed that the Ninth Circuit missed this opportunity to declare, with certainty, that the Constitution protects the right of consenting adults to engage in private sexual activity, even if they are paying for it or getting paid,” Sirkin said in a statement. “We’re mindful that, in our nation’s history, other constitutional issues have taken a persistent and continuing effort until the courts get it right.”
The ruling parsed the plaintiffs’ arguments in detail as well, with Judge Restani noting in some sections that the judges didn’t need to analyze certain claims in depth but did anyway.
A core issue was whether California’s anti-prostitution law violated the plaintiffs’ due process rights. The plaintiffs said it did, in light of the Supreme Court’s decision in Lawrence v. Texas.
“American courts continue to recognize that private sexual activity is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution,” they wrote in their initial complaint. “Yet, when the private, consensual sexual activity occurs as part of a voluntary commercial exchange between adults, the State prohibits the activity and deprives those adults of their constitutional rights.”
California’s attorneys contended that the Lawrence decision only pertained to sex as part of a personal relationship, not sex in and of itself, and that nothing in the ruling supported the notion that engaging prostitution was a right.
The Ninth Circuit noted that while “the bounds of Lawrence’s holdings are unclear,” the case didn’t cover prostitution.
The court conducted what’s known as a “rational basis review” of the anti-prostitution statute, meaning it examined whether the anti-prostitution law had a legitimate purpose, then asked whether the law promoted that purpose.
The prostitutes’ claims fell short on both questions, the Ninth Circuit found. The state had good reasons for outlawing prostitution, including discouraging human trafficking and violence against women, and the law was tailored to address those reasons, Restani wrote.
The judge acknowledged that ESPLERP had offered evidence that criminalizing prostitution put sex workers at greater risk of violence and didn’t deter the spread of disease. But that wasn’t enough, she wrote. The organization’s claims “may yet convince the California legislature to change its mind. But this court cannot change its mind for them.”
“We hold that the criminalization of prostitution is a valid exercise of California’s police power and hence, the State may criminalize prostitution in the interest of the health, safety, and welfare of its citizens,” the ruling added. “Accordingly, it is left to the political branches to fix the boundary between those human interactions governed by market exchange and those not so governed. ”
The court ruled that the relationship between a prostitute and a client doesn’t suggest anything intimate. It’s short, it’s transactional, and therefore it’s not protected as “free association” under the Constitution, according to the ruling.
Nor does prostitution qualify as free speech, the judges found. California’s law “does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection.”
https://www.washingtonpost.com/news/morning-mix/wp/2018/01/18/they-argued-that-prostitution-is-a-constitutional-right-nice-try-said-federal-court/?utm_term=.e36649741e84