Challenge To Prostitution Law Update on Declaratory Judgement Complaint in U.S. District Court Northern California
On 11/13/2015 the Attorney General of California filed and was granted an extension to file supplemental briefs as the Court requested. Extension granted to 1/15/2016 for Plaintiff's briefs (Erotic Service Providers) and till 1/29/2016 for Defendant's (State of CA etc) reply
On 1/15/2016 the Erotic Provides Legal Education & Research Project, John Doe and other plaintiffs filed 13 page brief. Since the Arizona law is similar to California (and most States) and we are in the 9th Circuit where this case will wind up it is relevant to Arizona.
Highlights:
INTRODUCTION / SUMMARY OF THE ARGUMENT Plaintiffs commenced this lawsuit to challenge California’s intrusion upon fundamental liberty interest in deciding how to conduct their private lives in matters pertaining to sex. Defendants moved to dismiss the action, arguing that California’s statute criminalizing prostitution does not violate Plaintiffs’ constitutional rights.
After that motion to dismiss was fully briefed, the Supreme Court issued its decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). This Court subsequently ordered the plaintiffs to submit additional briefing to aid the Court as it analyzes the effect of this recent precedent on the pending motion to dismiss.
(Dave notes the Obergefell case is the landmark Supreme Court case (on a split 5-4 decision) that supports as a fundamental right same sex couples to marry).
As explained below, Obergefell vindicates the arguments that Plaintiffs raised in Opposition to the Motion to Dismiss. Obergefell continues the Supreme Courts jurisprudential theme of shielding private, sexual relationships from governmental oversight.
Like Lawrence v. Texas, 539 U.S. 558 (2003), Obergefell confirms that the Due Process Clause of the Fourteenth Amendment allows individuals to engage in intimate conduct without unwarranted governmental intrusion. Like Lawrence, Obergefell shows that the backward-looking approach to the Due Process Clause emanating from Washington v. Glucksberg, 512 U.S. 701 (1997) does not apply to cases concerning intimate conduct. Finally, like Lawrence, Obergefell categorically rejects the idea that individuals must rely upon the democratic process rather than the federal courts to protect their constitutional liberties.
Obergefell is not an outlier or an anomaly. Rather, it is one of many points on decades-long continuum of decisions respecting individuals’ liberty and sexual autonomy. The case currently before this Court is simply one more point along this continuum.
(Dave notes I am somewhat editing down and without most cites the legal arguments):
I. Obergefell confirms that the Due Process Clause prevents the State from intruding upon adults as they decide how to conduct their private, sexual lives.
At the most rudimentary level of analysis, Obergefell affects this case because it reaffirms that “Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability”. (noting that Lawrence held that the state cannot demean an individual’s existence or control their destiny by making their private sexual conduct a crime).
In their original brief (filed before the Supreme Court’s decision in Obergefell), Plaintiffs argued at length that under Lawrence, laws criminalizing consensual, adult, sexual activity that occurs in private should be struck down as a violation of substantive due process. By its decision in Obergefell, the Supreme Court confirmed Plaintiffs’ argument that Lawrence remains good law, and it therefore struck down another set of laws that brought unwarranted government intrusion into a “sphere[] of our lives and existence * * * where the State should not be a dominant presence.”
But to end the analysis there is to miss the forest for the trees. Obergefell shed substantial new light on how courts should analyze claims that the government has violated the Due Process Clause of the Fourteenth Amendment by intruding into those spheres of our lives where the State should not be a dominant presence. In so doing, Obergefell “became a game changer for substantive due process jurisprudence.” See Kenji Yoshino, A New Birth of Freedom?
II. Substantive Due Process Prior to Obergefell
Prior to Obergefell but after Lawrence, reasonable minds could disagree as to how a court should analyze a substantive due process claim. (lots more deleted).
A. The Lawrence Court’s substantive due process analysis. (deleted details)
B. The Glucksberg Court’s substantive due process analysis.(deleted details)
C. Obergefell resolves the ambiguity and demonstrates that this Court should follow Obergefell, Lawrence, and Casey as opposed to Glucksberg.
Obergefell now removes all doubt as to this uncertain issue and vindicates the Plaintiffs’ argument that the analysis from Lawrence – not Glucksberg – must be applied to the present case. Obergefell flatly rejects Glucksberg’s backward-looking approach to the Due Process Clause in cases concerning sexuality and intimacy.
(lots deleted)....
For example, Amnesty International, a renowned international human rights nongovernmental organization, voted this past year to support a policy that calls for decriminalization of prostitution and payment for sex. (cite and link deleted)
Of course, scholars have for years advanced numerous arguments in support of the decriminalization of prostitution. See, e.g., (huge list).
III. Under Obergefell, plaintiffs need not rely upon the democratic process to protect their constitutional liberties.
Lastly, Obergefell affects the present case because it forecloses any attempt by the State to argue that this constitutional issue should be resolved through the democratic process rather than in the courts.
In conjunction with the original briefing, the State requested that the Court take judicial notice of certain ballot initiatives concerning the enforcement of prostitution laws in San Francisco and Berkeley. The State further argues that “there exists no trend among the states towards [prostitution’s] legalization.”
But, like other landmark constitutional cases, Obergefell shows that individuals need not wait for the majoritarian legislative process to protect their constitutional rights. The Supreme Court granted certiorari in Obergefell only after the Sixth Circuit Court of Appeals in the same-sex marriage cases notoriously denied same-sex couples their Fourteenth Amendment rights because that court thought it would be “[b]etter in th[at] instance * * * to allow change through the customary political processes”.
After granting certiorari, the Supreme Court promptly removed all doubt that federal courts need not wait for the democratic process to prevent a deprivation of an individual’s Fourteenth Amendment rights. As the Obergefell Court wrote, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.” And, “when the rights of persons are violated, the Constitution requires redress by the courts, notwithstanding the more general value of democratic decisionmaking.”
The same rationale applies to the present case. Section 647(b) of the California Penal Code (Prostitution law which is similar to laws in most States) infringes upon Plaintiffs’ substantive due process rights. The Plaintiffs need not wait for the democratic process to repeal this statute because this Court is vested with the power to declare the statute unconstitutional and to remedy immediately the irreparable harm that Plaintiffs continue to suffer.
IV. Conclusion
Like Lawrence, Casey, and the prior substantive due process cases regarding sexuality and intimacy, Obergefell protects a person’s liberty by preventing governmental intrusion into his or her private, intimate, and sexual life. Plaintiffs seek only that same protection.
For these reasons, together with the reasons originally set forth in Plaintiffs’ Opposition Brief, the Court should deny the Defendants’ Motion to Dismiss.
Dated: January 15, 2016 Respectfully submitted,
H. LOUIS SIRKIN
BRIAN P. O’CONNOR
D. GILL SPERLEIN
Attorneys for Plaintiffs
Erotic Service Providers Legal Education & Research Project; K.L.E.S.; CV.; J.B.; 591324.4 and John Doe
Dave notes: This is only related to the State of Calf and other attorney generals motion to dismiss the case. If "we" lose on this level it will be appealed to the 9th Circuit. If "we" win the case challenging the prostitution law will continue but may take a few more years for a decision. Which ever side loses will most likely appeal to the 9th Circuit.
Full brief attached to this post at
http://phxlist.com/forum/showthread.php?tid=18821
Prior updates:
8/2/2015
http://phxlist.com/forum/showthread.php?tid=18782
6/10/2015
http://phxlist.com/forum/showthread.php?tid=18758
Original Complaint and State response related:
206 page California AG Notice and Motion
http://www.sexwork.com/CalfAGMotion.pdf
This is a large 6.3mb file so may take awhile to download.
Complaint For Declaratory Judgement filed by Erotic Service Providers Legal Education & Research Project
http://phxlist.com/forum/attachment.php?aid=685
My discussion and my non-lawyer view of legal issues:
http://phxlist.com/forum/showthread.php?tid=4158
More extensive information at
http://www.esplerp.org
Challenge To Prostitution Law Update on Declaratory Judgement Complaint in U.S. District Court
