Starting with Griswold v. Connecticut, the Supreme Court has recognized a right of privacy regarding aspects of a person's sexuality as relates to family planning.  By 1972, in Eisenstadt v. Baird, the Court had fully recognized that both married and unmarried people have an absolute right to use birth control.

   By 1973, the right of sexual privacy was extended to cover abortion, to cover abortion fully up to the six months of pregnancy in Roe v. Wade.  So, if the right of sexual privacy, grounded in implications from the First Amendment, protects a woman from criminal prosecution if she aborts her fetus, even well into the pregnancy, shouldn't that same right of sexual privacy shield her from criminal prosecution if she decides to rent out her body for sex?

And the current Court seems pre-disposed to the view that Roe and Griswold over-reached, and they are about putting boundaries on the privacy doctrine, short of having the 5th vote (after Scalia, Thomas, Rhenquist, and Kennedy) to over-turn it.  The Republicans has been quite dissappointed that neither O'Connor, nor Souter have been willing to overturn Roe, but O'Connor has shown a willingness to bound it to Medical issues prior to a competing viable life interest (i.e. a fetus that could survive on its own).  With Bush in the White House, and Ashcroft vetting any new nominees, I wouldn't count on the extension of Privacy rights to enable the legalization of Prostitution for some time to come.  Especially with Scalia and Thomas being among the youngest members of the Court.

A few comments....

First Griswold did not derive from the First Amendment, it was created as a "penumbral right" from the Fourth Amendment.

In turn, that penumbra was expanded by Brennan et. al in Roe v. Wade.  But even the most activist (read "liberal") jurist will admit that rights flowing from Fourth Amendment are balanced against, and are subject to, restrictions grounded in "reasonable expectation of privacy."  And courts have consistently held that the definition of "reasonableness" is contoured by societal norms and a society's right to protect itself from harm.

So, the argument would go, that even if there is a privacy interest in sexworking, it is not a "reasonable expectation" given the foundation for making such laws in the first place.  A little circular, I know, but the same applies to other government regulations of pleasure. Like marijuana laws. One could argue that the ingestion of mood-altering chemicals is a "privacy" matter, but society will not recognize this as a legitimate interest.

Now, on the other hand, if somone created a passable church where sex-for-pay was part of the practice, perhaps, under City of Hialeah v. Church of Babalu, the regulation could be declared unconstitutional on an "as applied" basis...

I agree with dman. I would add that it will take far more than extending the scope of already fragile privacy doctrines to attack the present prohibition against prostituion. Furthermore, I doubt that we will see the day when present anti-prostitution statutes are overturned and subsequently taken off the books during our lifetime.

We can actually thank al-Qaeda (etcetera) for diverting attention from the enforcement of trivial infractions to the higher priority of National Security. Hopefully, this diversion will create respite from L.E. threats to our beloved hobby.

If Roe and Griswold were overturned, it would'nt mean that contraceptives or abortion were illegal.  It would revert to a state's rights issue.  For example, when Roe was decided California had a 7 year old rather liberal abortion right on the books - signed by Ronald Reagan no less.

I'm not certain that Scalia and Thomas might not defer to local standards and states rights on an issue like prostitution.  So it is entirely possible that a rather permissive state like California could become a battlefront (along with NY and Oregon).

Interestingly, one hurdle that providers must overcome it the NOW movement.  You see, those know-it-alls will protect a women's right to abortion - but they're vehement about controlling her right to sell her body (contrary to being a good feminist) or to supplement it (they're against implants, for example).  Shameless hypocrisy of course.  But such is life.

The points people are making about the unfortunate shift to the religious right on the Supreme Court are well taken.  However, since state courts can always expand these freedoms, based upon the concept of independent state grounds, there would be hope, here in California, to extend privacy rights to cover commercial sex work, as our own Supreme Court would evolve.  Hopefully, the types of judges that Davis, or even a moderate like Riordan, would appoint, would be ever more interested in expanding personal privacy rights.

 Also, some appellate court justices have off the record told me that they think wasting police time on arresting escorts is a terrible misuse of precious police time.  Many of these justices are so-called conservatives, but pragmatic people who know the score when it comes to law enforcement priorities.  At some point, I could see some of these jurists rely on a sexual privacy argument, even as a smokescreen, in order to engineer their true intent, which would be to deter the police from spending time on adult escort service.

 An example of this could very well be the court of appeal in Santa Ana ruling two years ago that even though the genital touching involved in lap dancing could constitute prostitution, the First Amendment expressive facet of the dancing, shields the otherwise prosecutable conduct from being deemed a punishable violation of law.

I have long felt that prostitution laws are unconstitutional because they violate the Establishment Clause (separation of church and state) of USCA 1. Prostitution laws were enacted because organized religion found the practice offensive, which might be construed as excesive government entanglement with religion.

The problem with relying on Griswold in your analysis is the presence of the analamous Bowers v. Hardwick (sodomy is not constitutionally protected activity, even if conducted in privacy of own home). This case is probably closer on point than Griswold.

I was just thinking this the other day.

A client of mine who is a public defender brought me some printouts explaining prostitution laws... on the same pages were laws about "Unnatural sex acts" and "sodomy." I thought, when I read it, that if as he explained to me those laws were only prosecutable if the acts were performed in public, shouldn't prostitution be the same thing? Two consenting adults choosing what to do in the privacy of their bedroom (hotel room, whatever) should not be relevant to the laws of our country, states, or counties.

Of course, first we have to stop attempting to legislate morality... which is what the concept of "separation of church and state" really means, at least to me. But that will never happen as so many politicians build their platforms around trying to tell other people what is right and wrong for THEM. Absolute nonsense. No politician has the right to tell me what I can or cannot do with my body in the privacy of my own home, for ANY reason.

GRRRRRRRR. Sorry, it just makes me angry.
Hugs*
Nicole

Anyone tells me what I can or can not do with my own body, they are no longer a feminist, but an oppressor of women. Those NOW idiots do not understand that feminism is about the freedom to choose, of our own volitions, for ourselves, what works for us.  Thus NOW joins the ranks of those who OPPRESS women, not those who help women take control of their lives.

I could say that, if they help those poor girls on the streets who are drug addicts and using prostitution to harm themselves, they are doing a good thing.. but the truth is that NO ONE can cause someone to stop taking drugs, or drinking, or performing any self-damaging addictive behavior, except the person in question. You can lock up a drug addict until he or she is clean, but at some point he/she will get out and make the decision for themselves again.

It's a futile effort to try to take our personal choices away from us.  

Hugs*
Nicole

First, let me state that I find it amusing that LE would want to spend their time and our money tracking down prostitutes.  HOWEVER, it seems unreasonable to "blame" the church for prostitution law.  Since "the church" does not vote, unless "the church" really means the collective morality of the people at the time such laws were past.  Anyway, the presently accepted meaning of "the separation of church and state" is infact a product of many current individual's moarality.  The pharse does not appear in the Constitution, the Bill of Rigts, any other of the ammendments, the Plymouth Charter, or any other significant legistlative document.  It has become a buzz phrase to assert one's own non-god philosophy over those who believe in God.  

To assert that we must "stop legislating morality" is nearly the same thing as promoting anarcy.  All societies collectively decide what is right or wrong (stealing, killing, cheating, lieing, etc.), it is one of the things that separates humans from the other animals.  

BTW, another differance is the worship of some kind of god(s).  No non-human animal has been shown to worship a higher being, but there has never been a human culture that has failed to try and find God.

But reminding all the upset readers of the top of this message, I do feel that prostitution should be legal.  

Seems to me that our current Victorian morals (sex, drinking, smoking, and having fun are all bad and should be illegal) were promoted by those mostly women who supported woman's sufferage (right to vote) issues.  If we look at the history books, seems as though women voted and cat houses closed at the same time.

I am not blaming the church... who to blame? Tough question. I am indeed saying that legislating morality does violate the basic premise of separation of church and state... as many people base their morality on their religious beliefs.

Now, whether or not saying that sodomy should be illegal... or oral sex... or swinging, or BDSM, or homosexuality, or prostitution... when it takes place amongst consenting adults in a private scenario... whether or not you feel that is a moral issue, is I suppose, up to you. From my perception it is, and has no place in our laws whatsoever.  Do you *like* the idea that a paragraph in a book somewhere could ever determine whether or not you can get a blowjob? I don't. My sexuality is just that... MINE. That has absolutely zilch to do with non-God vs. God... it IS simply that no one has the right to peek in my bedroom and tell me what I can and cannot do.

Hugs*
Nicole