9th Circuit Hears Oral Arguments in Bid to Legalize Prostitution

9th Circuit Hears Oral Arguments in Bid to Legalize Prostitution
Rhett Pardon

SAN FRANCISCO — The 9th U.S. Circuit Court of Appeals today heard oral arguments in ESPLER Project’s appeal of a lower court’s ruling that tossed the group’s challenge to California’s prostitution statute.

Two years ago, ESPLER Project — known formally as the Erotic Service Providers Legal, Education and Research Project — filed a complaint at federal court claiming that the state’s anti-prostitution statute known as 647(b) of the California Penal Code, unfairly deprives adults the right to private consensual activity, criminalizes the discussion of such activity and unconstitutionally places prohibitions on individuals’ right to freely associate.

Attorneys Louis Sirkin and D. Gill Sperlein, both representing ESPLER Project, asked the appeals panel to toss a lower court's judgment, remand the case to the lower court and declare the anti-prostitution law unconstitutionality.

In the appeal, ESPLER Project also is seeking a permanent injunction against enforcement of 647(b). The group sued California's attorney general and four district attorneys across the state.

Today, Sirkin argued before the court — comprising 9th Circuit judges Carlos Bea, Consuelo Callahan and Jane Restani — that 647(b) should be shot down because of a precedential case — Lawrence v. Texas, a 2003 U.S. Supreme Court landmark decision that held that intimate consensual sexual conduct was protected by the 14th Amendment. As a result of Lawrence, sodomy laws were struck down in Texas.

Sirkin argued to the three judges that Lawrence should be the controlling case in deciding ESPLER Project’s appeal.

“People have the right to make a living this way,” Sirkin told the judges. “I think that the substantive due process and the right to make freedom of choices under liberty is a protected interest in engaging in sexual activity is a liberty interest that I have.

“Liberty interest goes piece by piece, and I think we are at this point in society that we can recognize that.”

The state’s attorney, Sharon O’Grady, however, said that Lawrence v. Texas is not the controlling case and that the 9th Circuit should focus on another case — IDK v. Clark County — decided by the same circuit.

The 9th Circuit in IDK, which involved escort services located in Clark County, Nev., found that the licensing and control of escort services is constitutional on its face.

“With the commodification of sex,” she said, “the state has an interest in deterring that.”

One interesting moment during oral arguments, which lasted about 35 minutes, occurred when Bea asked O’Grady, “Why should it be illegal to sell something that’s legal to give away for free?”

O’Grady stumbled trying to offer an answer, but later noted that the Legislature “can make choices over all the evils that arise with prostitution.”

O’Grady cited human trafficking, drug abuse, violence against women and the transmission of diseases are all reasons why the prostitution statute shouldn’t be tossed.

The 9th Circuit did not reveal when it would rule on the appeal.

To view today’s oral arguments, click here.

Pictured: Attorney Louis Sirkin at the 9th Circuit today