I've often wondered what would happen if a discrete provider and a discrete hobbiest would just admit to engaging in prostitution and then fight the laws against it as being unconstitutional.
Ok so it would take more courage and money than most people have,but what about...
The 9th amendment to the constitution. It says.
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
The legal system seems to try hard to ignore this amendment.
What would be the state's counter arguments?
It's common sense knowledge to most adults that they own their own body. If I don't own my own body, then does the government own it? Am I only a renter? If I put my penis in an unapproved place will the landlord keep my deposit?
If two sovereign bodies choose to engage in an activity they both find mutually beneficial, on what grounds does a third party step in and say it is wrong?
The two sovereign adults were discrete and safe. No societal peace was disturbed. The two sovereign bodies found the sexual relations to be healthy and good. Neither party was able to find any physical or mental damage. Paying somebody well for good service was thought to be commendable.
But what about our lying law enforcers? If society wants to argue on moral grounds, then the ends cannot justify the means especially when dealing with consensual activities. To prevent polluting the end, only morally good means can achieve a morally good end. So when our friendly law enforcers engage in lying to capture consensual friends who is engaging in morally bad behavior? Many moralist seem to forget that being a busy body is itself morally bad behavior.
Most people reading a board like this already disagree with prostitution laws, but does anyone know of anybody who has tried fighting the law as being unconstitutional?
There is something to be said for your position insofar as the Supreme Court has recognized a fundamanetal right to an abortion (Roe v. Wade) and birth control (Griswold v. Connecticut). That is, if there is a constitutional right to "reproductive freedom" (Roe), or a right to "privacy" (Griswold), then it is hard to understand why there cannot be a right to "sexual freedom" found in the same document. The answer is that none of these rights is remotely protected by the Constitution, it's just that abortion and birth control are so widely practiced that many people have decided that the Constitution should be read to incorporate these rights even though it says nothing about them. "Prostitution," on the other hand, has not gained quite the same wide acceptance in society, so it has no chance whatever of being incorporated into the Bill of Rights. But the good news is that there is also nothing in the Constitution that prevents a state or local government from legalizing prostitution (see, e.g., Nevada).
The Supreme Court has upheld a law in Georgia making sodomy between consenting adults a crime.
I don't have the legal training to say for sure but appealing to the 9th amendment might be the wrong way to go since that is regarding civil rights and I think of human freedom in all matters that do not involve injury to others as an inalienable right. So you might have to appeal to the constitutions preamble or possibly the 14th amendment where it says "No State shall make or enforce any law which abridges the privileges and immunities of citizens of the United States."
Unfortunately the mistake of mixing moral law with civil law ends up making unjust law.
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