Metropolitan News-Enterprise


Thursday, January 18, 2018


Page 3


Ninth Circuit Upholds California Statute Criminalizing Prostitution


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeal yesterday upheld the constitutionality of California prostitution statute.

The opinion, by Judge Jane A. Restani of the United States Court of International Trade, sitting by designation, rejects 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.

Restani rejected the contention that states are precluded from criminalizing prostitution based on the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas. There, the high court declared unconstitutional laws that prohibit homosexual sodomy.

Scope of Lawrence

Lawrence has not previously been interpreted as creating a liberty interest that invalidates laws criminalizing prostitution,” the visiting judge wrote.

She noted that a 2009 Ninth Circuit opinion, In re Golinski, observes that “the bounds of Lawrence’s holding are unclear.”

The Supreme Court, she noted, has not had occasion to elaborate on the intended breadth of the decision.

“But whatever the nature of the right protected in Lawrence,” she wrote, “one thing Lawrence does make explicit is that the Lawrence case”—in its own words—“ ‘does not involve...prostitution.’ ”

The Ninth Circuit in 1998 spurned due process challenges to anti-prostitution statutes in In IDK, Inc. v. Clark County, and that Lawrence does not provide a basis for overturning that decision.

Other challenges to the statute were rebuffed under a “rational basis review” and it was determined that the statute serves legitimate state interests.

Plaintiff’s Lawyer Comments

Louis Sirkin, lead attorney for the plaintiff, commented:

“We’re disappointed that the Ninth Circuit missed this opportunity to declare, with certainty, that the Constitution protects the right of consenting adults to engage in private sexual activity, even if they are paying for it or getting paid. We’re mindful that, in our nation’s history, other constitutional issues have taken a persistent and continuing effort until the courts get it right. This case is not over and we are seriously considering requesting a rehearing by the full court. This is an important issue that affects all Americans, and it deserves further consideration by the courts.”

The plaintiff “project” describes itself as “a diverse community-based coalition advancing sexual privacy rights through litigation, education, and research.” Also suing were three persons who want to work as prostitutes and one person who desires to purchase such services.

The case is Erotic Service Provider Legal Education and Research Project v. Gascon, 2018 S.O.S. 16-15927


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