Wednesday, January 24, 2018

Ninth Circuit rules that laws against prostitution are not unconstitutional

The Washington Post has the best headline:
They argued that prostitution is a constitutional right. Nice try, said federal court.

"The Supreme Court’s 2003 ruling in the case Lawrence v. Texas is one of its best-known in recent memory. In a 6-3 decision, the justices invalidated every remaining sodomy law in the United States, rendering the country’s archaic and largely unenforced bans on same-sex sexual activity unconstitutional. “Intimate conduct” between consenting adults was a fundamental right protected by the Constitution’s due process clauses, the high court found.
"The Erotic Service Provider Legal Education and Research Project, or ESPLERP, filed a lawsuit in federal court in 2015 claiming that, under the Supreme Court’s ruling, California’s anti-prostitution law violates the constitutional rights of prostitutes and clients to engage in consensual sexual activity. They even went so far as to say that the ruling barred laws criminalizing prostitution among adults and that paying for sex was a form of protected commercial speech.
"On Wednesday, the San Francisco-based court threw out the lawsuit, ruling that paying for sex didn’t count as the type of “intimate conduct” that Supreme Court justices had in mind.

“There is no constitutional rights to engage in illegal employment, namely, prostitution,” Judge Jane A. Restani wrote for the three-judge panel."

Here's the story in the SF Chronicle:
Sex for sale is not a constitutional right, court rules

"Three former prostitutes, a would-be client and the Erotic Service Providers Legal, Educational and Research Project had argued that the high court, in striking down state laws against gay or lesbian sexual activity, recognized an adult’s right to engage in consensual sex without state interference. They maintained that the ruling extended to adults who consent to sex for a price.

"A panel of the Ninth U.S. Circuit Court of Appeals in San Francisco seemed receptive to that argument at a hearing in October, suggesting that the 1872 state ban might need closer scrutiny.

"One panel member said prostitution had been historically subjected to the same sort of moral disapproval that had once condemned gay sex, and might be more acceptable under the Supreme Court’s current view of individual rights. Another asked why it should be “illegal to sell something that it’s legal to give away.

"But in a 3-0 ruling Wednesday, the panel ruled that the Supreme Court had not legalized prostitution with its 2003 decision.

"Although the scope of the ruling was not clear, the Supreme Court specified that the gay sex case “does not involve ... prostitution,” Jane Restani, a judge of the U.S. Court of International Trade temporarily assigned to the appeals court, wrote in the panel’s decision."

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