Constitutional Challenge to Prostitution Laws Update

[davephx]

Constitutional Challenge to Prostitution Laws Update

Erotic Service Providers (ESPLER) Opposition to the Attorney General's Motion to Dismiss Highlights

Dave notes:
For decades, I have studied case law related to prostitution. Like the original declaratory action filing in Federal Court, this response in my non-lawyer opinion is brilliant and summarizes all the issues the best I have ever read!

I was pleasantly surprised how they tied the Lawrence case with the 5th Circuit Reliable Consultants sex toy case. I extensively wrote about the Reliable case years ago and how it could easily apply to consenting adult prostitution. My discussion of Reliable is easy to find on Goggle as "5th Circuit UPHOLDS Lawrence vs. Texas regarding the sale of sex toys but may be appealed and result in a major Lawrence case fight." February 28, 2008 at http://www.sexwork.com/legal/Lawrence_5th_Circuit.html.

H. Louis Sirkin argued and won the Reliable case before the 5th Circuit. Mr. Sirkin is the lead attorney in the current case that both sides expect will wind up at the 9th Circuit, which includes CA, AZ, CO, and many Western states.
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Case No.: 4:15-CV-01007 JSW
PLAINTIFFS’ OPPOSITION TO
THE ATTORNEY GENERAL’S
MOTION TO DISMISS

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

Opening Summary

This is a case about liberty. It is about the right to be let alone (Bowers v. Hardwick, 478 U.S. 186, 199 (1986)(Blackmun, J., dissenting), about controlling one’s own destiny (Lawrence v. Texas, 539 U.S. 558, 578 (2003)), and about limiting the role of the State in certain spheres of our lives (Lawrence, 539 U.S. at 562).

Plaintiffs are adults who knowingly wish to engage in sexual relationships, and they are willing to pay or to be paid in connection with these encounters. California currently makes such conduct illegal, even though adult Americans enjoy substantial protection in deciding how to conduct their private lives in matters pertaining to sex. Plaintiffs have thus come to this Court to challenge the State’s intrusion on their private, intimate lives.

The Defendants (collectively, the “State”) have moved to dismiss Plaintiffs’ claims. The State claims that its ban on prostitution is a valid regulation of commerce that does not infringe upon any liberty interest of its citizens.

The State’s Motion should be denied because it is a promise of the Constitution that there is a realm of personal liberty which the government may not enter (Lawrence, 539 U.S. at 562 (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 847 (1992)), and California’s ban on prostitution breaks that constitutional promise.

Highlights of Legal discussion related Constitutional issues (most cites deleted to limit length but link at end to the full Opposition)

I. Under the Due Process Clause of the Fourteenth Amendment and Lawrence v. Texas, the State cannot criminalize consensual, adult, sexual activity that occurs in private, even if it occurs for compensation.

Skipping lots of discussion other than:

Regarding the fundamental Rights issue: "Justice Kennedy’s opinion for the Court in Lawrence instead suggests the globally unifying theme of shielding from state control value-forming and value-transmitting relationships, procreative and non-procreative alike”.

In its motion to dismiss, the State ignores Lawrence and its impact on substantive due process jurisprudence. Instead, the State would have this Court allow it to run roughshod over the privacy of its citizens, regulating what happens in a bedroom as if it were the public square.

As evidence of this emerging recognition of the liberty interest in deciding how to conduct one’s private life in matters pertaining to sex, the Lawrence Court noted, among other things, that as early as 1955, “[t]he American Law Institute promulgated the Model Code and made clear that it did not recommend or provide for ‘criminal penalties for consensual sexual relations conducted in private.’”

In its Motion, the State characterizes Lawrence as a decision only about homosexual sodomy, with no broad-reaching impact on citizens’ liberty interests in matters pertaining to sex. Yet, remarkably, the State makes no reference to how Lawrence has impacted the many same-sex marriage cases. See, e.g., Latta, supra. And the State wholly ignores Reliable Consultants, Inc. v. Earle, in which the Fifth Circuit applied Lawrence and found unconstitutional a Texas law that prohibited the “selling, advertising, giving, or lending of a device designed or marketed for sexual stimulation.” There, the majority held that the court’s job was to “apply Lawrence,” and recognize the establishment of a “right to sexual privacy.”

As the Reliable Consultants Court explained: The right the Court recognized was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding “the most private human contact, sexual behavior.” That Lawrence recognized this as a constitutional right is the only way to make sense of the fact that the Court explicitly chose to answer the following question in the affirmative: “We granted certiorari ... [to resolve whether] petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.”

Laws criminalizing consensual, adult, sexual activity that occurs in private – even if it occurs for compensation – should suffer the same fate as laws criminalizing homosexual sodomy, same-sex marriage, and the purchase of sexual devices. Under Lawrence, they intrude on a citizen’s liberty interest in deciding how to conduct themselves in matters pertaining to sex. They demean people’s existence. They prevent people from “controlling their own destinies.” They are therefore unconstitutional.
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II. The State incorrectly claims that this is a case about commerce and not about a person’s fundamental liberty interest in deciding how to conduct his or her private life in matters pertaining to sex.

In many cases, the ability to enjoy or exercise basic rights requires a person to buysell, or otherwise commercially interact with other citizens. The Constitution’s protection of a fundamental right would in most cases be meaningless if a citizen is barred from paying or receiving money in the exercise of that right. American jurisprudence provides ample examples in which courts have intervened to set aside purported “regulations of commerce” that effectively thwarted the citizen’s exercise of a fundamental right. For example:

(I omitted most of the long good discussion with specific examples of other cases)

It is thus clear that the existence of a fundamental right carries with it a co-existent right to engage in such transactions as are necessary to enjoy or exercise such a right.
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A. Recent Second Amendment cases demonstrate that individuals have a right to engage in commerce to exercise their constitutional rights.

Much discussion and case cites before the summary:

Thus, state laws ostensibly regulating a transaction but which actually limit the exercise of a fundamental right must be subject to the same analysis as those that restrict the fundamental right itself. A fundamental right carries with it the necessary ability to exercise the right through attendant commercial transactions.
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B. Cases concerning the right to privacy also show that individuals have a right to engage in commerce to exercise their constitutional rights.

Long discussion and case cites leading to the summary:

In both Griswold and Eisenstadt, the Court held that the Due Process Clause provided right of privacy which included not just the right to use contraception, but the right to obtain the product. In Carey, the litigant established the right to sell the product for money The protections recognized by these three cases run not just to an individual whose privacy is at stake, but extend to another party to a transaction in which privacy is invoked. Thus, the State’s argument in this case (i.e. that it is simply regulating commerce) holds no water.
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III. Glucksberg, Raich, and IDK, cited by the State, do not control this case.
(Long discussion and cites)
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IV. The interests that the State claims Section 647(b) advances do not warrant the outright prohibition of consensual, adult, sexual activity that occurs in private, even if it occurs for compensation.
(Long discussion and cites)

Great summary: Under Lawrence, this moral disapproval, evidenced by the statute’s own drafter, is a patently insufficient justification for the law. And couching the moral disapproval as the State having an interest in “deterring commodification of sex” does not change that fact. Therefore none of the interests offered by the State, whether deterring independent crime, deterring the spread of STIs, or finding the conduct in question to be immoral, provides any legitimate basis for the State to trounce upon Plaintiffs’ fundamental rights.
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V. Plaintiffs’ free speech claim is not subject to dismissal.

The State’s argument for dismissing Plaintiff’s free speech claims under the First Amendment is entirely premised on the belief that the commercial exchange of private sexual activity is an illegal activity. (See Motion, p. 13). The State is correct in noting that a state may ban commercial speech related to an illegal activity. However, as explained in Section I, supra, the State cannot constitutionally make the commercial exchange of private sexual activity a crime. As a result, the State also cannot constitutionally criminalize speech relating to the commercial exchange of private sexual activity.
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VI. Plaintiff’s freedom of association claim is not subject to dismissal.

Long discussion and cites with summary:

For all of these reasons, California’s criminalization of prostitution impermissibly interferes with Plaintiffs’ right of association.
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VII. The Plaintiffs have a protectable property interest in their desired profession and a substantive due process right to engage in it.

Long discussion and cites with summary:

The position offered by the State is brazen in its simplicity, but similarly flaw. Its argument is entirely conclusory and does not dispose of Plaintiffs’ claim.
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VIII. Plaintiffs’ claims under the California Constitution.

The State moves to dismiss Plaintiffs’ claim under the California Constitution because of the Eleventh Amendment. Plaintiffs do not oppose this request.

(Dave notes I believe this basically says it is a U.S. Constitutional issue rather than only a California issue.)
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IX. Plaintiffs’ as-applied challenge does not fail.
After discussion ends:
“[W]hen fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative, a plaintiff need not ‘first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute.’” Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). Thus, Plaintiffs’ as-applied challenge is ripe for review. Wilson v. Stocker, 819 F.2d 943, 946–47 (10th Cir. 1987)
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X. Conclusion.
The Court should deny the Defendants’ Motion to Dismiss.
Respectfully submitted,
Dated: June 8, 2015 H. LOUIS SIRKIN
BRIAN P. O’CONNOR
D. GILL SPERLEIN
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Hearing set for 8/7/2015
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A link to this analysis with the full Opposition filing attached:
http://phxlist.com/forum/showthread.php?tid=18758
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My earlier review and the full declaratory action filing by ESPLER and earlier follow up discussion is at
http://phxlist.com/forum/showthread.php?tid=4158
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ESPLER site http://esplerp.org/

ESPLER Seeking legal funding support at
https://liberatetoemancipate.tilt.com
With ABC News coverage and other items of interest
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