Legal Corner

Re Freedom of religion defense
HalfHour 2929 reads
1 / 10

Yet bail for a recent robbery/murderer was about half that.

We are seeing an increase in penalties in morality laws,such as the recent laws in Illinois. Also an aggressive increase of LE activity toward morality "crimes" enforcement, often under the guise of reasons such a "child trafficking."

In my opinion, it really is time for individuals "in the hobby" to begin putting our money where our mouths are, so to speak, and start pushing back politically as much as we possible can.

Despite differences of opinion over the what or what not of the Phoenix Goddess temple represents from a religious basis, a legal loss for them is a blow to all of us who see nothing wrong with behaviors between consenting adults.

Remember, this groups had no ties to any sort of criminal group, organized or disorganized. No mob, no gang, no trafficking, no pimps, or criminals of any kind. There were no weapons or illegal drugs involved, nor anyone underage.

There may have been some folks that others might consider 'kooky', there may have been some who joined the temple who didn't really believe in the religious aspect. But that doesn't sound any different to any other church to me.

The Temple is intending to challenge the arrests, possibly the laws as well. They are looking for support in a petition campaign, and from the ACLU in doing this.

This is as good of a time as any to see what we can do individually to support the fight against the laws governing concenting adult activities.

HalfHour 1090 reads
2 / 10
marikod 1 Reviews 1578 reads
3 / 10

This is not consensual sexual conduct in the privacy of one's home, or hotel room, between two adults but the operation of a brothel as part of a commercial enterprise. All of the policy reasons that make the operation of a brothel illegal would apply here. But the number of charges made, and that will be made,  go far beyond merely the operation of a brothel or pandering.

     The last week we need is for some clueless atty to raise Lawrence in an improper case and generate another appellate opinion saying it does not render the statutes at issue unconstitutional. Even if successful as to the basic prostitution charges, it would not render the other stattues violated unconstitutional.

    The time to raise Lawrence is a two party prostitution bust in the privacy of one's home or hotel room where no other laws are broken. There you have a shot. The minute you bing in a pimp. Lawrence is out the door.

DAVEPHX 1379 reads
4 / 10

Much of the ranting on the Tantra sites totally ignores the law as it is.  I have over the last few days communicated with many attorneys and gads of gals of course double arrested and the key is to have real defenses not just religious which offers no protection as long as "compelling interest".

There are Supreme Court decisions both on the Federal law that was declared unconstitutional that is falsely stated as a reference - and AZ law which had the same negative fate in the AZ Supreme Court when Compelling interest tried to be expanded to "least restrictive".

Letting light and love is a great idea and every time Tracy preaches she basically is self admitting to guilt. And when you have a criminal syndicate/enterprise charge we know what happens as in the Desert Diva's case.

There are two defenses but a long hard fight about the actual law not fantasy of what they wish the law was or a history of sexual spirituality - it is irrelevant.

As some attorneys have said this case cries out for a Lawrence vs Texas defense which I have written so much about for years.

But lawyers fees would be huge - Private attorneys in the DD case ran $100K+_ and almost 100 mostly gals got felonies in pleas.  Even DD wasn't charged as a criminal syndicate (just enterprise class 2 vs 3 felony) and brings in everyone "associated" (Glen the webguy, Photo guy, Acct and even the bank teller was charged in DD)  We now have 2 indictments and 39 indicted many arrested twice and need support for real legal defenses.  I am in contact with about 10-12 directly and indirectly and been contacted by various Phoenix criminal attorneys on strategy.

This is a very serious case with potential of long prison terms and needs to be taken more seriously vs just their religious freedom procreational having no clue what the law is.  You have freedom to believe but not to violate criminal laws in practices.

Makwa 18 Reviews 1898 reads
5 / 10

It would take a legal ruling that would establish that what consenting adults do in private is their private business.  
But with the current makeup of the Supreme Court, I doubt even the best attorney could get a hobby friendly ruling.

DAVEPHX 1469 reads
6 / 10

I totally agree it is a jump from private bedroom to commercial brothel but some attorney's think the case should still apply - just the specifics of that case were different.

But the overall decision was based on in private and no laws can be based on morality.

In a room inside a "brothel" is still private not public and it was implied that laws were based on morality.

I believe there are tons of arguments that there is no "compelling interest" other than morality for our unique prostitution laws resulting in less private adult freedoms vs most of the rest of the world without the "morality" bases for law.

Prior to Lawrence vs Texas judges supported laws explicitly using the morality argument in sexwork cases

I agree the Supreme Court is more conservative with Bush appointments and some of best gone like O'Connor.  But a case could also find a supportive judge at the 9th Circuit (most liberal) and then the question is if the State appealed if current Supremes would hear or not.

Yes a long shot but many want to fight the prostitution law itself.  Also provides more public opinion about wasting money on in private consenting adults - a long shot - but opens  up in AZ a voter referredum like for medical weed...but the Feds want to enforce.. at least we have no Fed criminal law as long as no interstate or trafficking aspects.

DAVEPHX 1257 reads
7 / 10

Any Supreme Court review is years or decades away.

Even if we lose we are no worse off then now.

A lower court judge could rule in favor, probably State appeal to 9th Cir which is liberal but never ruled as far as I can tell on any similar case.

The using the decision in commercial sex has gotten attention just never fully tested.

It was well briefed in the D.C. Madam case but never used by criminal attorney just the lame, oh my I didn't know they had sex" defense that lost.

It was briefed in another sexwork case I saw and the judge in a minute entry took notice of it taking it seriously.  But I lost track of the case and have no idea what happened further.. It was just a motion for dismissal that failed but the judge noted the case.  But motions to dismiss are very rarely granted since judge has to be convinced no issue in question.

Also the more public publicity about the wasting of LE/State/City/County limited funds going after crimes with no victims can be positive.

In Phoenix and some nearby cities using a SWAT team breaking down doors with 12 high powered weapons pointed at your face "get down and spread your legs" just to deliver a failure to be licensed citation may be viewed as a bit of a waste by many citizens.

mrfisher 87 Reviews 1237 reads
8 / 10

I would be grateful, however, to hear your take on a freedom of religion defense.

I know, for example, that many native americans enjoy the freedom to indulge in narcotics and even physically debilitating practices that other citizens would be arrested for.

Could a defense based upon the beliefs of the Goddess Temple defendents be able to hold up?  There is a long and documented history or sexual practices being used for religious purposes in eastern countries such as India.

I know that a comparisom with the various cult like sects that take child brides may come up, but obviously the Goddess Temple people don't fall into that catagory at all.  This is, after all, sexual practices between consenting adults.

In any case, I thank you for your thoughful analysis, as usual.

DAVEPHX 1799 reads
9 / 10

I will try and make my usual long analysis short...

On "narcotics" - In the Controlled Substance Act there is a specific exemption for Peyote if used by Native American Indians in their religious ceremonies.    Utah arrested an Indian for such use and I believe it was Oregon that ruled based on an employment issue - firing for using Peyote at work. The U.S. Supreme Court ruled that the State can not under the separation of powers provision enforce the State law against Peyote since it is exempted by U.S. law.   But it ONLY applies to Peyote and other cases with marijuana have been lost since its only peyote that is exempt under Federal Law.

As a Religious Freedom issue, The Supreme Court has held since the "Warren Court" of the 1960's that religious practices of things otherwise illegal is legal only if the State has no "compelling interest" to enforce.  I am sure the State will come up with tons of interests even if we think most are bull - protect children and neighborhoods like the last fight in Phoenix,  prevent STD's, break up families by adultery, it leads to major crimes, pimps etc etc.. I think we can push back on these but historically I have never seen a for example Tantra case that won - they have all lost so far.

Then came along Religious Freedom Restoration Act of 1993 (RFRA) RFRA prohibited "government" from "substantially burdening" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." § 2000bb-1.

RFRA was eliminated by Supreme Court decision City of Boerne v. Flores, 521 U.S. 507 (1997) By declaring the RFRA Act unconstitutional it limited the power of Congress to make federal law (for religious freedoms for example), and reaffirmed the judicial (vs Federal law) authority to review the constitutionality of laws.

The Religious Liberty Protection Act (RLPA) was introduced in the House of Representatives in 1998. Like RFRA, it was an
attempt to restore strict scrutiny as the test for state actions that substantially burden free exercise. However, RLPA ran into opposition and failed to gain a consensus in the House.

Than RLUIPA was introduced in the Senate but it narrowed the religious freedom of expression to land use and for persons in prisons and other institutions. So it did not help expand the limitations of compelling public interest to also have to apply the "least restrictive" added test under RFRA which had it stood may have been some help in the Temple case.

To appropriate a parable attributed to a well-known religious figure, it may be easier for a camel to pass through the eye of a needle than for Congress to codify free-exercise rights under the eye of the United States Supreme Court.

Then thirteen state legislators including AZ passed their own state-RFRA making it harder to restrict religious practices by adding the "least restrictive" argument to the "compelling interest" burden of the State. Most of this started related to the American Indian fight to use peyote in religious ceremonies and the right in two cases in Oregon and Utah to enforce their drug laws vs the Federal Exemption specific to peyote.

Arizona's ARS 41-1493.01 is virtually the same as the Federal RFRA that was struck down by the Supreme Court.

There is a very interesting detailed discussion in State of AZ v Hardesty Arizona Supreme Court No. CR-08-0244-PR, It is post Flores, mentions it, but ignores it, and address both the compelling interest and least restrictive issues in great depth.

However the religious freedom defense lost on both issues related to Marijuana use. It may be a huge leap and even harder to try and argue for prostitution as a religious freedom right. Lawrence vs Texas may be at least a more reasonable fight but tough and not hinge on the religious aspects.

On the religious freedom issue we have both AZ and US Supreme Court rulings against under both Federal and AZ Freedom of Religion laws. But I think huge new arguments could be made especially if in AZ it can be fought on both compelling interests and least restrictive issues.  And some attorney's say the Temple case "cries out" for a Lawrence vs Texas direct attack on the prostitution laws.

Assuming I can post a link I have a larger discussion of these and other issues in the Legal section that supplements the Phoenix Private Lists at url link below

mrfisher 87 Reviews 1745 reads
10 / 10

That was an excellent summary of the state of religious freedom versus the courts to date.

Now I'm going to go out and try to find a very skinny camel and a very large needle.

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