Is prostitution a right? Even conservative jurists are supporting an idea many would consider totally insane. Accepting the case of ESPLERP v Gascon would challenge California’s 145-year-old ban on prostitution by considering it in light of a 2003 Supreme court ruling. Now that individual rights outweigh “moral disapproval,” one of the Ninth Circuit’s most conservative Judges, Carlos Bea, is willing to accept the case just to answer the question, “why should it be illegal to sell something that it’s legal to give away?”
Chasing after what could be “a natural extension of Supreme Court precedent,” a three-judge panel at the ultra-liberal Ninth U.S. Circuit Court of Appeals heard arguments Thursday to decide if they have a duty to consider overturning the lower court’s ruling.
Erotic Service Provider Legal, Educational, and Research Project (ESPLERP) filed the suit in early 2015 on behalf of three unidentified former prostitutes and one client who claims his disability plays a role in why he seeks the services. Louis Sirkin, their attorney, argued his clients are “voluntary individuals who want to engage in sexual activity. I believe people in this country have the right to act this way and to make a living this way.”
Plaintiffs assert that the anti-prostitution law “unfairly deprives consenting adults of the right to private activity, criminalizes the discussion of such activity, and unconstitutionally places prohibitions on individuals’ right to freely associate.”
The lower U.S. District Court, with Judge Jeffrey White on the bench, disagreed with the theory and ruled against the Plaintiffs, explaining the higher court ruling “protected only intimate personal relationships, not commercial sex.” The judge believed “the state had adequately justified the current law as a deterrent to violence against women, sexually transmitted diseases, and human trafficking.”
Echoing the sentiment of Judge Bea, another conservative judge, Consuelo Callahan, compared the matter before them with the 2003 ruling and noted, “prostitution, like gay sex, had historically been subject to moral disapproval.” Both cases, she says, “deal with individuals’ rights, so why wouldn’t a ruling for the right to engage in prostitution be a natural extension of Supreme Court precedent?”
Sharon O’Grady, representing the state, responded with long-accepted doctrine. The difference, she argues, is in “the commercial aspect. The commodification of sex. The state is not telling anyone who they can sleep with, it is prohibiting only a harmful category of business transactions, not intimate or enduring relationships.”
Judge Bea didn’t buy that reasoning and suggested that in light of the Supreme Court ruling the case may need to go back to the lower court for review or even a new trial. If that was to happen, the state would have to prove “a compelling need for the law.”
Lawrence v. Texas invalidated laws criminalizing sex between same-sex partners. By a vote of 6-3, a Texas law against sodomy was reversed when the Supremes ruled “consensual sexual conduct was part of the personal and private life of the individual protected by the due process liberty right.” According to Judge Bea, that is where the current issue presents a valid question of law. “What is the interest protected by due process? The conduct or the relationship?”
Because the 2003 verdict laid down the precedent on “the right of individuals to make their own individual choices as to how they want to behave in consensual sexual relationships,” Sirkin argued. “If people put a dollar amount on it, that should not alter the intimate relationship.”
Judge Bea still was skeptical if the Supreme Court decision could apply to “totally anonymous sex for hire” but noted that Justice Scalia’s dissent opinion opened the door. Scalia, he said, “called into question state laws against prostitution.”
The biggest argument against legalizing prostitution has always been public health issues. After outlawing the world’s oldest profession for generations, all the available data shows that the opposite is true.
According to Scott Schoettes, who is HIV Project Director at the law firm that filed the suit leading to the 2003 Supreme Court ruling, Lambda Legal, “The evidence is clear that laws making it illegal for consenting adults to engage in private sexual activity in exchange for money hurt public health because they lead to fear of law enforcement and criminal prosecution.” The laws “deter the use of condoms,” he says because “they are often used as evidence of intent to commit a crime.”
In 1911 San Francisco tried an experiment. The “Municipal Clinic” was the first ever clinic for prostitutes. Venereal disease plunged by 60 percent. “All harlots were required to report at the clinic every fourth day for medical inspection, which included a blood test. For this they paid 50 cents, though treatment in the case of disease was free,” Herbert Asbury writes. When a local minister got the clinic shut down, along with an equally offensive roller rink, “Disease again raged unchecked.”
Six years later, in 1917, the madam of the Tenderloin brothel “led a group of several hundred sex workers in what might be called the first women’s march in San Francisco.” Reggie Gamble led the march to San Francisco’s Central Methodist Church. “If you want to stop prostitution, stop the new girls from coming in here. They are coming into it every day. They will always be coming into it as long as conditions, wages and education are as they are. You don’t do any good by attacking us. Why don’t you attack those conditions?”
California already allows sex for money, as long as it is done on camera for some “artistic” purpose. “There’s a bunch of double standards” with the prostitution law, Maxine Doogan says. The president of the sex workers’ organization explains, “while public officials claim they’re saving sex workers from the brutality of the streets, the law ultimately punishes them worse than if prostitution were decriminalized. Workers still get in trouble for carrying life-saving condoms around and, more often than not, end up in jail. If they’re victims in the eyes of Harris and Gascon, why are they still being locked up?”