SAN FRANCISCO — Counsel for the ESPLER Project have vowed to ask for a rehearing in an appellate case decided last week that upheld the constitutionality of California’s prostitution statute.
The 9th U.S. Circuit Court of Appeals on Thursday rejected the contention that states are precluded from criminalizing prostitution based on the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas. With that case, the high court declared unconstitutional laws that prohibit homosexual sodomy.
Industry attorney Gill Sperlein, who represents ESPLER Project, told XBIZ that the organization will be filing a request for rehearing en banc, or in front of the full court, by its deadline, Thursday, Feb. 1.
“We are disappointed with the decision,” Sperlein said. “We feel that if we are given a chance to dispute the arguments the state advances in support of the laws limiting people's fundamental rights, we will be able to show that none of them hold water.
“All logic and reason supports the notion that decriminalization and regulation of prostitution would serve society better than continuing to force the industry to operate in black markets.”
Last week’s opinion rejected ESPLER Project’s challenges to Penal Code §647(b) on the bases of a substantive due process right to sexual privacy, a substantive due process right to earn a living, freedom of association, and freedom of speech.
“Lawrence has not previously been interpreted as creating a liberty interest that invalidates laws criminalizing prostitution,” wrote Judge Jane Restani of the U.S. Court of International Trade, sitting by designation.
Restani noted that the bounds of Lawrence were unclear and that the U.S. Supreme Court has not had occasion to elaborate on the intended breadth of the decision.
“But whatever the nature of the right protected in Lawrence, one thing Lawrence does make explicit is that the Lawrence case … does not involve ... prostitution.”
Maxine Doogan, who serves as president of ESPLERP, known formally as the Erotic Service Provider Legal Education and Research Project, said she was bothered by the decision.
“It is mind boggling that today’s Ninth Circuit decision relied on a 1998 case (IDK Inc. v. Clark County), which relied on the 1986 Bowers v. Hardwick case (which upheld a Georgia sodomy law), when both have since clearly been superseded by Lawrence v. Texas, the 2003 Supreme Court case which struck down sodomy laws nationwide.”
About three years ago, ESPLER Project filed a complaint at U.S. federal court claiming that the state’s anti-prostitution statute 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.
Sperlein and another industry attorney, Louis Sirkin, 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 was seeking a permanent injunction.
The appeal was based on an earlier decision by a federal judge that dismissed the group's suit against California's attorney general and four district attorneys across the state.
The case is supported by amicus briefs from more than 30 civil rights and LGBTQ organizations, including the ACLU, the First Amendment Lawyers Association, Transgender Law Center and the Woodhull Freedom Foundation and the Free Speech Coalition.
