WASHINGTON, D.C.—Apparently taking a break from its mission to convince Americans that looking at porn is bad for their health, the National Center on Sexual Exploitation (NCOSE, formerly Morality in Media), joined by 11 other pro-censorship/anti-'exploitation' groups, has authored an amicus brief whose purpose is to get the Ninth Circuit Court of Appeals to reject the Erotic Service Providers Legal, Education and Research Project's (ESPLERP) appeal of the dismissal of its lawsuit targeting California's laws against consensual prostitution. The suit names San Francisco District Attorney George Gascon and other district attorneys around the state, arguing that by keeping adult sex workers from legally practicing their profession, the workers are less safe from predators (including some law enforcement) and are often targeted by groups that claim they are being trafficked, even when they are clearly not.
"ESPLERP claims that California's law 'does not significantly further any important governmental interest'," the brief states. "However, prostitution is inherently an act of sexual coercion, is a form of sexual violence and is integrally connected to sex trafficking, drug abuse, brutality, rape, and murder. The state of California maintains an important government interest in preventing the crimes and health risks associated with prostitution."
Much of ESPLERP's argument is based on the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, which overturned the Court's earlier decision in Bowers v. Hardwick and nullified state laws against "consensual sodomy"—laws which mainly affected the nation's gay community.
"[T]here are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence," wrote Justice Anthony Kennedy at the beginning of the Court's ruling in Lawrence. "Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
But sadly, the high court put limits on that "autonomy of self," though it had little reason to do so, with Kennedy writing, "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."
The ESPERLP suit points out the hypocrisy of the Court saying that, on the one hand, it's okay to have "two adults who, with full and mutual consent from each other, engaged in [private] sexual practices" while at the same time denying that same right to a man and a woman, or two men or two women, who engage in private sexual practices for money, aka prostitution.
"The rights of adults to engage in consensual, private sexual activity (even for compensation) is a fundamental liberty interest," the ESPLERP suit argues. "That right is one that is, objectively speaking, deeply rooted in this nation’s history and tradition and one that is implicit in the concept of ordered liberty. Therefore, any regulation regarding the commercial exchange of private sexual activity is subject to strict scrutiny. ... The government has no interest in regulating such activities so long as the activities occur in private amongst consenting adults in furtherance of their liberty interest in their own sexual behavior. Furthermore, the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting its practice."
But NCOSE has seized on Lawrence's attempt to distinguish personal intimate conduct from commercial intimate conduct, arguing that, "Prostitution does not fall within the type of intimate personal relationships protected by the Fourteenth Amendment. The United States Supreme Court and this Court have determined that the Fourteenth Amendment protects deep, personal relationships, not sexual conduct... Prostitution does not relate to 'marriage, procreation, contraception, family relationships, child rearing, [or] education.' Likewise, prostitution is not a 'personal bond that is more enduring.' Indeed, by its nature prostitution is not enduring at all. It is momentary, without commitment and impersonal." [Citations omitted here and below]
The proper response to that is, "So what? If prostitution were decriminalized, and sex workers were required to undergo periodic STI testing and ID checks to make sure they are adults and aren't being coerced to perform sex acts, what is the government's stake in prohibiting the practice?"
Beyond that, NCOSE seems to have ignored the words of conservative Justice Antonin Scalia who, in his dissent from the majority's ruling, stated, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."
Of course, with a total lack of evidence, NCOSE considers all paid sex work, including adult content production, to be inherently exploitive, and is quick to agree with U.S. District Judge Jeffrey White's initial dismissal of the case by claiming that the government does have interests in preventing decriminalization such as "preventing a climate conducive to violence against women and potential human trafficking, preserving the public health, and deterring the commodification of sex"—that last statement, of course, being simply a disguised moral objection, with the rest easily taken care of with proper regulation.
At this point, the Ninth Circuit has not set a date for a hearing on the ESPLERP v. Gascon appeal, but there's little doubt that the case will have significant effects on the adult industry, whose legality in California rests largely on a 1988 state Supreme Court decision, no matter which way it is decided.
