Folks, as LE apparently does not let up on seeking to arrest people for engaging in acts that should not be a crime, there have to be some new legal arguments to help the cause of decriminalization. I believe that one unexplored area is the separation of church and state. The Supreme Court has said over and over again that no law can be based on any religious belief. Thus, to the extent that any sex prohibitory law cannot be justified by actual human experience, and is ultimately reducible to a worldview based on religion, such a law is ripe for constitutional challange. Just a thought.
I'm sure there are a lot of others that also agree with you. And you put forth a wonderful point. But who is that strong person that is willing to step forward and defend this constitutional challenge. We all have great thoughts and dreams and desires to change things. But that’s where it stays in are thoughts. I have to say that I'm also guilty of that. I would be afraid to speak out and be publicly challenged on such an issue as this but then again I do love a good debate just as much as the next person and love a challenge.
RED
-- Modified on 2/9/2002 8:15:19 AM
After having read hundreds of Supreme Court cases in law school, I finally came to the realization that the Supreme Court is more political than anything. You should forget about notions of fairness and equity, since those things are relative and subjective.
Although you are probably correct technically, the Court has ruled many times that the state can prohibit particular forms of conduct if there is a "compelling state interest." If some form of conduct is judged to be harmful to the community, it can be circumscribed (made illegal).
For instance, you can drink alcohol until you pass out, but take a couple of tokes of the forbidden weed and you have engaged in illegal behavior. That's because the political powers that be determined somewhere along the line that booze was ok, but marijuana was not, although they both can get you high.
It would be very easy for the court to decide that complete open sexual behavior is bad for the community because it can spread disease, drug addiction, teenage pregnancy, etc., etc.
I wish they (the court)would be more open to new ideas, but until those ideas are politically correct, the Supremes will use the Constitution against you.
Just another lawyer's $0.02
> the Court has ruled many times that the state
> can prohibit particular forms of conduct if
> there is a "compelling state interest." If
> some form of conduct is judged to be harmful
> to the community, it can be circumscribed
> (made illegal).
Actually, the state can generally prohibit ANYTHING the legislature wants to. In 99% of cases there needs to be no compelling state interest at all. Just a majority in the legistlature and the signature of the executive. It's called "representative democracy."
Certain things are not supposed to be restricted in any way under the Constitution. Restrictions on religious practices are one. This is often where the "compelling state interest" thing comes into play. Human sacrifice is not permitted, even though it is part of some religious traditions. The state is generally throught to have a compelling interest in preserving life. Likewise, Christian Scientists are generally not able to withhold simple lifesaving medications from their children on religious grounds. The state has a compelling interest in letting those children live to adulthood, at which point they can make their own decisions about whether to accept or reject modern medicine.
That's not the case here. Here we have a law that happens to be inspired by a particular religious tradition (as are many things in our society). It does not dictate a religious practice. It does not provide funding for a religious practice or institution. It also does not prohibit any religious practice or institution. I don't see any grounds to pursue this under the First Amendment.
MisterG
> The Supreme Court has said over and over again
> that no law can be based on any religious belief.
They've never said that. If they did, please cite the reference for me.
They have certainly stopped lots of laws that were designed to force people to engage in certain religious practices, or to insitutionalize "voluntary" religious practices in public institutions. And of course they've stomped on laws designed to restrict people's right to practice whatever religion they want to and have certainly made religious discrimination mostly illegal. Finally, they have mostly prohibited governments from giving money to religious organizations. (The issue of whether a government organization can contract with a religious one for the performance of specific services has yet to be decided.)
There is no requirement that a law needs be "justified by actual human experience," to use your term. It can be inspired by anything, including the lunacy of whoever writes the law.
I think somebody once tried to justify prostitution on the grounds that it was a ritual in some obscure religion, and therefore deserved protection as religious practice. Don't think that one went anywhere.
MisterG
The Supreme Court has many times said that no legislation by any state legislature or any branch of government can be based on religion. In 1968, in the case of Epperson v. Arkansas, the Court in striking down a law that required teaching alternatives to evolution, stated that if the legislative motivation for any law is grounded in religion, that law is unconstitutional.
In 1985, in Wallace v. Jaffree, the Court struck down Alabama's moment of silence law, because even though the law itself was silent about any purpose of encouraging prayer, the legislative history showed that this was the motivation behind the passage of the law.
So, if one could show that any aspect of any prostitution law was not justified by anything ultimately other than a recourse to religion, such aspect of such a law could be subject to constitutional challenge as an impermissible enactment of a religious purpose.
"...if the legislative motivation for any law is grounded in religion, that law is unconstitutional."
I hate to nitpick, but if you're going to promote a legal challenge, get used to it.
The court has said repeatedly that no law may be passed that is designed to PROMOTE any religion, or religion in general. Moments of silence, outright prayer in schools, and use of public funds or facilities by religious organizations have always been put into the category of things that are designed to "promote religion." The intent of the people who have passed these laws has always been quite clear.
There is a lot of GOOD stuff that is inspired by religious tradition. The Court has never held that these things should be exempt from legislation just because the inspiration ultimately comes from religious sources. They have only excluded leglislation that clearly has no purpose other than to promote religious practices.
The bar on this is quite high. You need to be able to show that the law in question has no purpose other than to promote a religious viewpoint. You'd have a tough time proving that. It falls into the same category as thousands of other laws that are substantially influenced by religious tradition, but can be shown to have other purpose or benefit. Do you really think you could successfully argue that there are NO benefits to the current law? Don't get me wrong, I don't think the "benefits" are worth the trouble and could certainly concoct better laws to deal with the problem areas, but I wouldn't be so stupid as to go in claiming that there is no purpose to these laws other than promoting religion.
MisterG
It is true that if prostitution prohibitory laws can all be justified in every aspect by some empirical basis other than religion, those laws would survive an attack on church/state grounds. My point is that if any part of any prostitution law can be shown to rest on no substantiation, other than religion, such a provision of such a law would be vulnerable to attack on church/state grounds.
Also, remember that two years ago, the California Court of Appeal in Orange County ruled that even though lap dancing involves the type of genital touching that could justify prosecution under California's prostitution laws, lap dancers and their customers are shielded from those laws because the dancing aspect of lap dancing has First Amendment free expression aspects to it. This was a real opinion by a court of appeal in one of our most consernative counties. So, there is hope that courts will see facets of the First Amendment as a legitimate end run around some prostitution laws.
For most that know me they know I have a genuine desire in my life time to present through writings and research our side of this. As you have all reinterated here changing of the laws has not happened. This is only my opinion but the laws won't be changed until the perception of the masses is changed. As long as media, entertainment, and even at times here perpetuate the raunchy side of this nothing is going to change. If you look at the picture from a 100% view and start sectioning the pie as to who and why is seeking this service most would be amazed at the divisions. There are those who seek the pure raunch of encounters and see numerous providers who are into specialized areas. I believe and hope to prove that the larger percentage who utilize this service could clearly be put into a theraputic area of labeling. This premise if proved and presented by a women (who many think this is so degrading, etc.to the female gender)could eventually start to change the viewpoint of the masses which eventually would have to rise to the political arenas and change the laws.
Well, just thought I'd weigh in from a lawyer's point of view.
Forget it.
In the first place, the laws governing prostitution will never be changed through court decision or constitutional argument. Way too many "legitimate" social reasons for the laws, and all this talk about church and state... please. If there were any prayer of winning on this or any other grounds (no pun intended), Larry Flynt probably would have already tried. And you'd need his kind of financial resources to do it.
On top of that, since prostitution is by and large regulated by the states, you'd have to do it on a state by state basis. The laws will only be changed when, as in Nevada, the electorate gets a clue and realizes that we are all better off -- providers, clients, spouses, etc. -- when this conduct is legal, subject to some kind of reasonable regulation, etc. And as long as our society continues to revel in sexual hypocrisy -- one man, one woman, monogamous for life (please... Clinton is the rule, not the exception; it's only a matter of opportunity for most men) -- and denial of the fact that men simply have stronger sexual urges, then legalization will continue to be politically untenable.
So let's talk about something we can change... phony reviews. See my other posting.