LOS ANGELES — ESPLER Project today explained in detail why it changed its legal strategy in its challenge over California’s anti-prostitution law and won’t pursue its case to the U.S. Supreme Court.
ESPLER Project for the past several years has challenged the legality of California Penal Code 647(b), claiming it is unconstitutional. It filed a suit against the state of the California, seeking an injunction over its enforcement, but lost its challenge at the 9th U.S. Circuit Court of Appeals.
Today, industry attorney Louis Sirkin told XBIZ and other reporters that ESPLER Project’s case should be litigated in state court. Sirkin is one of several attorneys that have worked on ESPLER Project’s decision to challenge Penal Code 647 (b).
“This may be the place to go,” Sirkin said. “We can start over. We've learned some lessons, and we've got an addition to the substantive due process we can bring into the right of privacy that California provides, and so we thought that that would be a better battle ground.”
Sirkin noted that there's no specific wording in the U.S. Constitution and the Bill of Rights that gives each citizen an "inalienable right" to pursue and obtain privacy.
“There is in California,” said Sirkin, noting that he and ESPLER Project’s board “put a lot of discussion in” a change of legal strategy using alternative channels. “I think we made the right decision.”
“All along we had been looking at the California constitution,” Sirkin said. “You have Article 1, Section 1, that has a constitutional right of privacy, which doesn't exist in the U.S.”
Sirkin, who was joined by ESPLER Project’s Maxine Doogan and Domina Elle, said that a major reason to drop the challenge before U.S. Supreme Court was that Justice Anthony Kennedy was stepping down.
“I think we evaluated the situation with the Supreme Court and the strategy changed a bit on the announcement of the resignation of Justice Kennedy that came at the end of June,” Sirkin said.
“We were disappointed that the 9th Circuit missed an opportunity to declare that the Constitution protects the right of consenting adults to engage in private sexual activity,” Sirkin said. “We were also disappointed that their decision relied on a 1998 case (IDK Inc. v. Clark County), which has since been clearly superseded by Lawrence v. Texas, the 2003 Supreme Court case which struck down sodomy laws nationwide and established a constitutional right to sexual privacy.
“You know, without [Kennedy] it might have been difficult,” Sirkin said. “We would have an adverse decision by the Supreme Court … and if they didn't grant the petition for certiorari [to take the case], people always would have made negative inferences from that.”
Sirkin said that there ESPLER Project, known to many also as the Erotic Service Providers Legal, Education and Research Project, hasn’t decided on a timeline for its next step — to file another lawsuit at California superior court.
