Significant win on Constitutional Issues that could apply to prostitution cases
Could Utah Ruling that the law banning religious cohabitation violated the First and Fourteenth Amendments have arguments to help Phoenix Goddess Temple or the many felony and other cases pending in Phoenix related to Private consenting adult prostitution?
This is especially significant since it is a U.S. Court decision which overrides State laws to the contrary. So a win on the unconstitutionality of prostitution laws for in private consenting adults, or religious freedom (Temple case) trumps all State laws. It is also a Summary Judgment - Court rule law is clear, so no need for a trial or further proceedings. The State of Utah's law is void.
Only a lawyer can evaluate this 91 page opinion quotes extensively and uses similar arguments of Lawrence vs Texas. on privacy, Due Process Clause, no laws based on morality and other constitutional issues similar to issues of in private consenting adult prostitution.
The judge clearly wrestled with his decision, but finally came to the conclusion that, “given the relatively mature law on privacy rights, there’s no basis to interfere with relations among consenting adults.”
In fact in Utah, Judge Waddoups cited the Supreme Court's 2003 decision in Lawrence v. Texas, which struck down a law against sodomy, quoting from the court's majority decision: "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home...Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.
"And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct..
Other than the current sham of the lie that all prostitution is never by choice but because prostitutes all suffer from sexual abuse, or exploitation since no women is capable of choosing freely giving pleasure as a career.. the Utah Prosecutors comments included in the evidence could apply to in private consenting adult sexwork:
"According to Bridget Romano, Utah’s Solicitor General, Waddoup’s ruling, while groundbreaking, won’t have much impact on law enforcement activities in the state. Romano says that, typically, polygamous families are not targeted by law enforcement unless there are other “more serious” crimes alleged – like abuse, underage marriage, or welfare fraud. In cases like that, says Romano, prosecutors might tack on a violation of the cohabitation statute."
This also is somewhat the view of the Canadian Supreme Court but with a focus on harm reduction being the result of total decriminalization ruling in Canada. While its a stretch - replace "cohabitation statue" with "in private consenting adults" and you may get the same legal argument in the U.S.
Full ruling at
https://ecf.utd.uscourts.gov/cgi-bin...c?211cv0652-78
Plaintiffs that won are the plural family featured in "Sister Wives" TV program
Defendant is the County Attorney for Utah County
For Temple Case isn't their spiritual practices or that of Tantra similar to Cohabitation in Utah based on Mormonism? This is supported in the Utah case under the "free exercise" construct of the U.S. Constitution.
"...the court believes that Reynolds is not, or should no longer be considered, good law, but also acknowledges its ambiguous status given its continued citation by both the Supreme Court and the Tenth Circuit as general historical support for the broad principle that a statute may incidentally burden a particular religious practice so long as it is a generally applicable, neutral law not arising from religious animus or targeted at a specific religious group or practice.
"...following Lawrence (v. Texas) and based on the arguments presented by Defendant in both his filings and at oral argument, the State of Utah has no rational basis under the Due Process Clause on which to prohibit the type of religious cohabitation at issue here; thus, the cohabitation prong of the Statute is facially unconstitutional.
Much of the rest of these excerpts could perhaps apply both the private prostitution and the Temple:
"Plaintiffs truncate the Glucksberg analysis by reference to Lawrence, which they argue establishes “a fundamental liberty interest in intimate sexual conduct”, thus prohibiting the state “from imposing criminal sanctions for intimate sexual conduct in the home.” Lawrence was the latest iteration in a long series of constitutional decisions amplifying a core principle: the Due Process Clause circumscribes and in some cases virtually forbids state intervention in private relationships and conduct.”
Dave notes "home" is implied both here and in Lawrence and another 5th Circuit case. I would argue a hotel room rented by either an escort or client, or the Temple, is private just as much as in a bedroom in a home.
.......Thus, “[t]he statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Id. . Moreover, the Court acknowledged that “adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. . . . The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
Lawrence involved “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle” and “are entitled to respect for their private lives.” Id. Accordingly, based on the broader liberty analysis, the Court held that [t]he State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ [Planned Parenthood of Southeastern Pa. v.] Casey, 505 U.S. [833], 847 [(1992)] . . . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Skipping many pages more discussing the Utah history and polygamy
The court finds that each of Plaintiffs’ companion constitutional claims—the Freedom of Association claim, the Substantive Due Process Claim, the Equal Protection Claim, the Free Speech Claim, or the Establishment Clause claim, each as argued in Plaintiffs’ Memorandum in Support of their Motion for Summary Judgment (Dkt. No. 50), and each largely or entirely unopposed by Defendant (with the exception of the Substantive Due Process claim)—makes a “colorable showing” of a constitutional violation, thus requiring heightened scrutiny of the Statute under Smith. Swanson, 135 F.3d 694, 700 & n.5; Axson-Flynn, 356 F.3d at 1295-97. As discussed above and for those reasons, the cohabitation prong of the Statute cannot withstand heightened scrutiny as to any compelling state interest and must be stricken when reviewed against that standard.
skipping lots
Consensual sexual privacy is the touchstone of the rational basis review analysis in this case, as in Lawrence.
...Adultery, including adulterous cohabitation, is not prosecuted.
Court also discusses why law is void for vagueness under the which has been used by Arizona lawyers to challenge the State prostitution law but has not been to trial yet that I know of.
CONCLUSION
The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it.
SO ORDERED this 13th day of December, 2013.
BY THE COURT:
______________________________
Clark Waddoups
United States District Court Judge
Significant win on Constitutional Issues that could apply to prostitution cases
