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.
How far the definition of “intimate conduct” stretched wasn’t spelled out in the ruling. But a California-based sex worker advocacy group decided to test its limits.
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.
It was a novel argument, but not one that the U.S. Court of Appeals for the Ninth Circuit found convincing.
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.
The lawsuit named as defendants a group of district attorneys in and around the San Francisco Bay area, as well as the attorney general of California.
ESPLERP was joined in the case by three former “erotic services providers” and a potential client, referred to in court papers only by their initials to protect their privacy. The organization’s lead attorney, Louis Sirkin, said he was considering asking for a rehearing in front of the full Ninth Circuit.
“We’re disappointed that the Ninth Circuit missed this opportunity to declare, with certainty, that the Constitution protects the right of consenting adults to engage in private sexual activity, even if they are paying for it or getting paid,” Sirkin said in a statement. “We’re mindful that, in our nation’s history, other constitutional issues have taken a persistent and continuing effort until the courts get it right.”
The plaintiffs had little chance of prevailing in the case, but the Ninth Circuit appeared to take their claims seriously. During a hearing in October, the judges suggested that California’s 1872 ban on prostitution might need closer scrutiny, as the San Francisco Chronicle reported. At one point, a judge asked why it should be “illegal to sell something that’s legal to give away,” according to the Chronicle.
Full story at The Washington Post.