SAN FRANCISCO — The ESPLER Project on Friday filed a brief with the 9th U.S. Circuit Court of Appeals in its case challenging California’s anti-prostitution law on the grounds that it is unconstitutional.
A judge earlier this year dismissed the group’s suit against California’s attorney general and four district attorneys across the state that sought to have Penal Code 647(b) tossed.
The state successfully argued that the state’s 55-year-old prostitution statute is a valid regulation of commerce that does not infringe upon any liberty interest of its citizens, and ESPLER Project immediately filed an appeal.
“[U.S. District Judge Jeffrey White’s] decision was deeply flawed,” said Maxine Doogan, president of ESPLER Project, formally known as the Erotic Service Providers Legal, Education and Research Project. “He acknowledged that Lawrence v. Texas defined a constitutional right to privacy in individuals’ sexual conduct and also acknowledged that morality was not a basis to deny that right, but then found flimsy legal arguments to deny that right.
In the U.S. Supreme Court case Lawrence v. Texas, justices made clear that governments may not intrude into the private lives of consenting adults by criminalizing their sexual behavior.
“He also ignored the recommendations of international organizations like Amnesty International, theWorld Health Organization, the Lancet, Human Rights Watch, and the UN Global Commission on HIV and the Law, all of which call for the decriminalization of sex work.”
Today’s filing by industry attorneys D. Gill Sperlein and H. Louis Sirkin asks the court to review a lower court’s dismissal that determined that the “the intimate association between a prostitute and client, while it may be consensual and cordial, has not merited the protection of the Due Process Clause of the 14th Amendment.”
“The resolution of this question hinges on two bedrock principles of our constitutional jurisprudence,” ESPLER Project counsel said. “First, all Americans have a fundamental liberty interest protecting them from unwarranted government intrusion in their intimate lives. Second, the state cannot wholly outlaw a commercial exchange that is related to the exercise of a fundamental right.
“Our jurisprudence leaves little doubt that private sexual activity is a fundamental liberty interest protected by the Due Process Clause of the 14th Amendment to the U.S. Constitution. Yet, when that intimate activity occurs as part of a voluntary, commercial exchange between consenting adults, the state criminalizes the intimate association and thereby prohibits individuals from exercising their constitutional rights.
“Appellants wish to engage in sexual relationships and they are willing to pay or to be paid in connection with those intimate relationships. Thus, they filed suit to enjoin and invalidate California’s state law on constitutional grounds.”
Contributions to support ESPLER Project's court case can be submitted through its crowd fundraising site, LitigateToEmancipate.com.