SAN FRANCISCO, Calif.—In an order issued Thursday, U.S. District Judge Jeffrey S. White granted the Motion filed by Defendant California Attorney General Kamala Harris and others to dismiss the lawsuit filed by the Erotic Service Providers Legal Education Research Project (ESPLERP) and three sex workers to overturn California's laws against prostitution. The case was filed in March of last year, with ESPLERP and the other plaintiffs being represented by First Amendment attorneys H. Louis Sirkin and D. Gil Sperlein.
In dismissing the case, Judge White considered five claims stated in the complaint, the first dealing with plaintiffs' "liberty interest" to engage in paid sexual transactions as protected by the U.S. Supreme Court's decision in Lawrence v. Texas, the 2003 case which legalized homosexual conduct between consenting adults, which had previously been held illegal.
"Plaintiffs contend that the Supreme Court’s decision in Lawrence fundamentally changes the definition and scope of the liberty interest individuals maintain under the Due Process Clause and requires the application of strict scrutiny in this matter..." Judge White wrote. "The Court’s emphasis in defining the liberty interest focused on the choices relating to protected relationships in which the intimate conduct occurs, not solely on the contours of the intimate conduct itself. The Court is not persuaded by Plaintiffs’ contention that the Supreme Court has shifted the definition of the protected liberty interest to comprise merely sexual or intimate conduct, as opposed to the relationship in which the sexual or intimate conduct occurs. The Court similarly is not persuaded by Defendant’s contention that the due process analysis here should be predicated exclusively upon an asserted fundamental right to commercial sex."
Judge White focused on the "family and other group relationships" to which the Supreme Court has directed its opinions regarding the Fourteenth Amendment's "liberty interests" and concluded that the relaitonship between a sex worker and a client just isn't "intimate" enough to invoke a "liberty interest," and therefore concluded that sex worker rights should not be analyzed under "strict scrutiny," which would require the government to state a compelling governmental interest for the prostitution laws' existence, but rather under "rational basis" (intermediate) scrutiny, which balances government interest against individual rights. As such, Judge White bought the defendants' argument that prostitution laws serve several government interests, such as preventing sex trafficking, preventing drug use, and "deterring the commodification of sex." (As part of its response to the complaint, the defendants offered as an exhibit an article by virulent anti-prostitution activist Melissa Farley linking prostitution with human trafficking.)
Building on that premise, Judge White then dismissed the plaintiffs' charge that the laws violate sex workers' rights to free speech and association, since he had already ruled that there was no constitutional right to engage in sex work. Likewise, he dismissed their claim that the laws affect sex workers' right to earn a living, stating that, "A protectable liberty interest in employment arises only 'where not affirmatively restricted by reasonable laws or regulations of general application'," and that therefore, "This Court has found as a matter of law, that Plaintiffs have failed to demonstrate that they have a protectable liberty interest in the profession of prostitution."
Judge White's full opinion can be read here (.pdf).
"Simply put, this is a deeply flawed decision; a judge’s bias against sex worker rights in search of a legal justification," stated ESPLERP head Maxine Doogan in a press release. "This decision flies against all legal precedent, especially Lawrence v Texas, the 2003 Supreme Court landmark decision that held that intimate consensual sexual conduct was protected by the 14th Amendment. It also ignores the recommendations of a whole series of reputable international organizations, including Amnesty International, the World 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 and recognize that consenting adults have the right to be free from state criminalization of their sex lives."
"This decision is horribly mistaken," added Claire Alwyne, Board Member of ESPLERP. "The judge completely misinterprets Lawrence v Texas. He claims that Lawrence v Texas only protects sexual conduct in the context of a meaningful relationship, while in fact it protects even the most brief, casual, and impersonal sexual interactions. While he might not like it, Lawrence v Texas clearly protects sex workers and their clients."
"It is completely offensive that a federal judge says that criminalizing sex workers promotes public safety and prevents injury and coercion,” declared Bella Robinson, of ESPLERP and the sex worker protection group CoyoteRI. "In real life, it’s the other way round. Doing sex work under the constant threat of police and jail is far from occupational safety, and violence against sex workers is very common when sex work is illegal."
Doogan stated that ESPLERP is currently consulting with its legal advisers regarding its next steps.
"We have until May 6 to file an amended complaint, but seriously doubt that we will have a fair hearing in Judge Jeffrey S. White’s court," she stated. "Given that, we may have no option but to appeal to the Ninth Circuit, where we are confident that the merits of our case will finally be recognized and we will be granted relief."
