Advocates of legalized prostitution took their challenge to California’s 145-year-old ban on commercial sex before a federal appeals court Thursday and appeared to get a hint that they’ll have another chance to show why the law should be cast aside.
The case was brought by three former prostitutes, a would-be client and the Erotic Service Providers Legal, Educational and Research Project. They contend the law violates the right to engage in consensual sex, as defined by the U.S. Supreme Court in a 2003 ruling overturning criminal laws against gay sexual activity.
U.S. District Judge Jeffrey White of Oakland rejected their argument last year, saying the high court ruling protected only intimate personal relationships, not commercial sex. He said the state had adequately justified the current law as a deterrent to violence against women, sexually transmitted diseases and human trafficking.
But at Thursday’s hearing, members of a three-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco suggested that the law might need closer scrutiny, given today’s less restrictive standards, as recognized by the high court, on sex between consenting adults.
“Why should it be illegal to sell something that it’s legal to give away?” asked Carlos Bea, one of the court’s most conservative judges.
Another conservative, Judge Consuelo Callahan, pointed out that prostitution, like gay sex, had historically been “subject to moral disapproval.” Just as in 2003, the current case, she said, “deals with individuals’ rights,” so why wouldn’t a ruling for the right to engage in prostitution be “a natural extension of Supreme Court precedent?”
Deputy Attorney General Sharon O’Grady, the state’s lawyer, responded that the difference is in “the commercial aspect … the commodification of sex.”
“The state is not telling anyone who they can sleep with,” O’Grady said. It is prohibiting only a harmful category of business transactions, not intimate or enduring relationships, she said.
But Bea said the 2003 Supreme Court ruling might require the court to send the case back to White for another review, and perhaps even a full-scale trial, in which the state would have to show a compelling need for the law.
The Supreme Court’s 2003 decision established “the right of individuals to make their own individual choices as to how they want to behave” in consensual sexual relationships, Sirkin told the court. “If people put a dollar amount on it, that should not alter the intimate relationship.”
But Bea questioned whether the high court’s ruling applied to “totally anonymous sex” for hire. And the third panel member, Jane Restani, a judge from the U.S. Court of International Trade temporarily assigned to the appeals court, noted that Justice Anthony Kennedy, in the 2003 Supreme Court ruling, had specified that the case before the court did not involve prostitution.
On the other hand, Bea quoted from another portion of the 2003 case in which the late Justice Antonin Scalia, writing in dissent, declared that the ruling “called into question” state laws against prostitution.
True, said O’Grady, the state’s lawyer — but Scalia, in the same opinion, also predicted the ruling would be used to strike down laws against incest and bestiality.
Full story at SF Gate.
Sure. Why not? “Equality” and all that stuff. The plaintiffs make a strong legal point: if consensual sex cannot be prohibited by government, as per Supreme Court rulings, then why should government be able to prohibit some transactional circumstances of consensual sex? Maybe laws against prostitution derive from a bigoted era in which those engaging in prostitution were victims of a moral opprobrium that has no place in a progressive, secular society that should not discriminate in any way regarding adult sexual behavior or preferences; at least it seems Justice Anthony Kennedy would write something like that.
This argument doesn’t involve rights in a vacuum. The states have a right under the Constitution to protect the public, including public health. In this regard, prostitution involves many things that corrupt the individual and society (e.g. disease, organized crime, and the moral corruption of the individual and, by extension, the integrity of the family unit).
Same argument against homosexuality.
Gravey,
There are similarities but there are also differences. The main difference is that prostitution involves commerce whereas homosexuality, of itself, does not.
The Constitution doesn’t contain a right to commerce although it does speak of regulating commerce.
Yeah and killing Jews was once legal too. Even if outrageous things are legally permitted, people of faith are prohibited from taking part. Anybody still doubt that Satan and all the evil spirits prowl about the world seeking the ruin of souls?
Hey, in this era of money, money, money. …best exemplified by the current President, sex is just commerce! Sex and everything else has been reduced to its monetary value. I’ve heard of marriages in which husbands pay their wives for relations. Consider all of the porn which permeates our society. Sex sells! The degradation of human beings, human sexuality and the transmission of human life is disgusting! God cannot be pleased with what American culture has done to sex. There are limits to His mercy.
Immoral, “QUACK” false “scientists,” in the field of psychology, and IMMORAL, LAWLESS, MONEY-HUNGRY pornographers, seeking to make illicit sex and pornography look falsely “acceptable”– are among the main causes of prostitution, human trafficking, in America, today!! PLUS– the churches have FAILED to teach their members, how to live a good Christian life!! All things have their proper place, in God’s Creation. The proper place of sex, is in the holiness of Christian Marriage, (a Sacrament, in our Faith) welcoming children, which God may send!!
Apparently they haven’t heard of or wish to heed our Blessed Mother’s comments that more souls are lost do to the sins of impurity.
May God please help us remove our corrupt and wicked government officials from their offices by praying our rosaries and votes.
This is just another logical step for the left. The curriculum of the public schools is preparing the students for a life of prostitution. Their training would be wasted if they are not able to monetize the education they have received. Of course, those who disagree with legalization of prostitution are just ignorant bigots who are stuck in medieval times with outdated religious beliefs.
These ignorant gals are so LUCKY to live in America!! There is a widespread effort in the U.S., to eliminate Human Trafficking!! The Catholic Church has also become involved, to help end this evil!! These “ladies of the night” need to be rounded up, by the order of a judge– and sent away to a rehabilitation center, to rehabilitate their horrificaly destroyed lives, receive a good education– and lots of self-respect!- and learn to be good American citizens, in good, honest professions, leading good, productive, happy, healthy, NORMAL lives!!
With I suppose some rare exceptions, maybe the Nevada brothel system is one of them, whether legal or not, in every society and time in history, the “sex worker” has been exploited and exposed to violence by a middle man or woman.
Not difficult to understand, given the intellectually weak and morally vacant decisions of the Court on contraception, abortion, and homosexuality (among others). Abstractly, there is nothing wrong with prostitution, if properly regulated to avoid, as much as possible, disease, and the like. It is little more than a contract between legally eligible adults.
Of course, America will reap the whirlwind of its paganism soon enough, as did Rome and many, many others. Are we really a nation that can claim, “In God we trust?”
Correction: California’s law against prostitution dates from the Red Light Abatement Act of 1914 – not from 145 years ago (the adoption of the Penal Code).
It is absolutely HEART-BREAKING, to read the history of poor Chinese girls, sold into prostitution, who were shipped off to brothels in San Francisco, in the early days of this city. They were badly abused, and lived only a brief time, before enduring horribly cruel deaths, due to the daily evils and filth of their situation. I read that in their last few days of life, doctors would hardly come near them, and a simple bowl of rice might be left at their door, as a final meal. Presbyterian missionaries in San Francisco, were succesful in working to eradicate this horrifying evil.
It is sadly true, all throughout history, that women have not been desired as much as men, in many cultures, particularly in Asia– women have often been violently abused, in these cultures, given few rights, and viewed as “second-class” to men, who were their “bosses,” or “superiors,” in all areas of society. Truly sad and shocking!! I hope the Catholic Church, as well as many other religious and charitable organizations– can successfully work to end human trafficking, forever!!
and how many of those “Children of the Night” are non Caucasian and pimped out by the likes of the person who calls him or herself Rachel West. Other races pimp out Caucasian girls (boys) also. It is called “white slavery” as everyone knows but is too politically correct now to say.
“Sin speaks to the sinner in the depths of his heart, there is no fear of God before his eyes. He so flatters himself in his mind that he knows not his guilt. In his mouth are mischief and deceit. All wisdom is gone. He plots the defeat of goodness as he lies on his bed. He has set his foot on evil ways, he clings to what is evil.” — Psalm 36 from today’s morning prayer, Liturgy of the Hours.
Prostitution is just another forth of slavery — to sin and literally. Many of these girls and woman (boys too) are drugged with alcohol and other illegal drugs to get them to stay enslaved. How many of them are blackmailed to keep them in the business? Why is the cult named Children of the Night if there are no children in it? How many of the adult prostitutes were enslaved as children by traffickers? These are questions that need to be answered.
St. Nicholas of Myra pray we are saved from these.
The Anonymous prayers October 26 at 9:54 am, 9:26 and 9:36 were mine.
Anne T. Now I want to stay off of these sites for awhile. They can be depressing.