Ninth Circuit Panel May Give New Life to Prostitution Lawsuit

SAN FRANCISCO—In a hearing this morning lasting just over 40 minutes, a three-judge panel of the Ninth Circuit U.S. Court of Appeals appeared to be disposed to reversing the dismissal of a lawsuit filed by three sex workers, one "john" and the Erotic Service Providers Legal, Education and Research Project (ESPLERP) that seeks to have the state's anti-prostitution law, CA Penal Code 647(b), declared unconstitutional.

The plaintiffs had charged that the anti-prostitution statute "unfairly deprives consenting adults of the right to private activity, criminalizes the discussion of such activity, and unconstitutionally places prohibitions on individuals' right to freely associate," rights generally guaranteed by the First, Fifth and Fourteenth Amendments to the U.S. Constitution.

The defendants in the case consist of California's Attorney General Xavier Becerra as well as several Bay Area district attorneys, most prominent of which is San Francisco's George Gascon, the first-named defendant in ESPLERP v. Gascon.

And there's no doubt that the plaintiffs had their work cut out for them. Hearing the challenge to the lawsuit's dismissal were Judges Consuelo ("Sue") Callahan and Carlos T. Bea, both appointed to the circuit bench by George W. Bush in 2003, and Judge Jane A. Restani of the Court of International Trade, sitting by designation but originally appointed to the bench by Ronald Reagan in 1983.

Courtroom 307 at San Francisco's U.S. District Courthouse was packed with ESPLERP supporters and attorneys as the hearing began. Prominent First Amendment advocate H. Louis Sirkin addressed the panel first, noting that the case had nothing to do with sex trafficking or minor children being forced or persuaded into prostitution. Rather, he said, the plaintiffs' claims are based largely on the Fifth and Fourteenth Amendments' substantive due process rights, and the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, which found that two gay men who had been arrested in the midst of performing a sex act had a "liberty interest" in being able to have sex in private, despite a prior Supreme Court decision in Bowers v. Hardwick which had denied them that right.

Judge Callahan immediately noted that the current case was a facial challenge to the prostitution law, whereas the Lawrence case had been an "as-applied" challenge: Lawrence and his partner had been busted after being "caught in the act." Sirkin responded that the case became a facial challenge to the law; otherwise, the high court would not have issued a ruling that struck down anti-sodomy laws nationwide.

Judge Bea then inquired whether Lawrence was about the personal relationship between Lawrence and his partner, or simply about their conduct in having had forbidden sexual relations. But when Sirkin declared that the current case was about conduct, the judges attempted to distinguish Lawrence as a case about an "intimate personal relationship," with Judge Callahan pointing out that the Ninth Circuit had previously held that the relationship between a prostitute and a client isn't "intimate" in any personal way. This led to several minutes of discussion regarding the definition of an "intimate" and/or "personal" relationship, with Judge Callahan opining that even a client who saw a particular prostitute on a regular basis still did not have an "intimate" relationship with her. Sirkin countered that seeing someone numerous times—for instance, in a dating relationship that might include sex—isn't a crime.

Then, despite Sirkin's earlier caveat, Judge Callahan suggested that prostitution is not a "victimless crime" in the eyes of the law, because some prostitutes are in fact trafficking victims, while others are under the control of pimps. However, Sirkin rightly noted that other laws deal with those situations, and that many prostitutes knowingly choose their profession and are beholden to no one. He also later noted that the U.S. has a long history involving prostitution, with most major cities having had brothels and casual prostitutes.

For his part, Judge Bea focused on terms like "enduring bonds," which he opined are not formed in the anonymous sex that prostitutes have with clients, and asked Sirkin if he felt that such "relationships" were still constitutionally protected. Sirkin said he thought they were.

Regarding Lawrence, Judge Callahan noted that Justice Anthony Kennedy was the author of the high court's opinion in the case, and wondered how he would feel if the current case were before him? Sirkin said he thought Justice Kennedy would support the rights of prostitutes to carry on their business, since he would understand that simply because some people felt that some actions were "immoral" didn't mean they were (or should be) against the law.

More locally, Judge Restani asked about a Ninth Circuit case referred to as "IDK," which one of the attendees said revolved around a Nevada escort service. Sirkin noted that IDK had been decided while Bowers v. Hardwick was still the law of the land, but that had been overturned by Lawrence. Judge Bea then brought up another Ninth Circuit decision, the Witt case, involving a soldier involved in a lesbian relationship while married—a case which he said was decided based on the parties' relationship rather than the sexual acts they engaged in. Sirkin countered that it was the parties' conduct that should be at issue, and that the ability to engage in such conduct was a liberty interest.

Judge Bea then tried to analogize between the current case and the anti-gambling statutes, and asked how this was any different. Sirkin didn't answer directly, but maintained that the ability to be sexually intimate with another person, whether or not money changed hands, was constitutionally protected.

The judge then heard from Deputy Attorney General Sharon O'Grady, who immediately argued that the IDK case should control the panel's decision, and maintained that Lawrence v. Texas was all about the relationship between the two partners and not about their conduct. However, when Judge Bea questioned whether there was any evidence that Lawrence and his partner in fact had a relationship beyond being sex partners, O'Grady admitted that there was no such evidence—which led Judge Bea to wonder whether a law prohibiting one-night stands would be considered constitutional. O'Grady responded by pointing out that prostitution is a commercial enterprise, and subject to regulation on that basis, which impelled Judge Bea to ask why it is illegal to sell something (sex acts) that it's perfectly legal to give away for free. O'Grady's only response was that that would be up to the legislature.

When Judge Callahan noted that although prostitution is morally disapproved, there appeared to be nothing that allowed the laws against it to be considered constitutional. O'Grady responded by noting that prostitution sometimes involves trafficked women, domestic violence, drugs and sexually transmitted diseases, which she opined is enough for the legislature to take action against it. However, Judge Bea asked whether she would be able to prove that relationship if the panel voted to remand the case for trial. O'Grady said she thought she could, but asked that remand nonetheless not be granted.

Judge Callahan wanted to delve more deeply into the mechanics of prostitution, asking whether two people who had sex in the privacy of their own home could be convicted under the law if one party gave money to the other? O'Grady admitted she thought they could—but that the couple might have an "as-applied" challenge to the law. She also continued to argue, in response to a question from Judge Callahan, that while Lawrence may have recognized a liberty interest in consensual gay sex, paying for such sex would be another matter entirely.

Judge Bea then questioned whether simply the fact of money changing hands eliminated the possibility that the people engaged in the sex act could be having a personal relationship—and wouldn't that be an issue to be decided at trial? O'Grady agreed that that question might be relevant in an "as-applied" challenge to the law, but noted that that isn't the case here.

The questioning then turned to what level of scrutiny should be applied to the prostitution laws. O'Grady maintained that the law would survive simple "rational basis" scrutiny, but Judge Bea seemed to feel that the law should be subjected to heightened scrutiny, and asked whether she thought the law could survive that. O"Grady said she thought it could, and with the IDK case controlling in the Ninth Circuit, there was no need to remand for trial. However, Judge Bea noted that it would be up to the trial court to hear evidence as to which level of scrutiny should be applied. O'Grady claimed, though, that such evidence was already in the record, so again, no need for remand. She also argued that it was state legislatures that created anti-prostitution laws, not the courts, and that this court should let them do that job.

Judge Bea then turned to the late Justice Anton Scalia's dissent in Lawrence, where he stated that if Lawrence were to prevail, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity" would all be called into question. "Was he wrong?" Judge Bea asked. O'Grady's basic answer was "Yes."

At that point, Sirkin took the rostrum again, and Judge Bea asked essentially the same question, focusing this time on the concept of incest. Sirkin noted that there were good scientific reasons to prohibit incest, which could lead to malformed offspring, but that that logic didn't apply to prostitution, which had nothing scientific arguing against it.

That discussion went on for about another minute before the panel decided that the issues had been aired to their satisfaction, but as expected, they didn't issue a ruling from the bench. However, from the tenor of the questions, it seemed likely that the panel would remand the case back to the trial judge, who would then schedule a trial in the matter.

Outside the courtroom, the attorneys (which included several from organizations like the ACLU and Lambda Legal, as well as observers like local counsel for plaintiffs D. Gill Sperlein, Allan Gelbard and Sirkin's partner Brian O'Connor) seemed pleased with the way the questioning had gone, and felt confident that the panel would reverse the trial court's dismissal of the lawsuit. However, a press conference planned for the courthouse steps after the hearing concluded was canceled when no reporters from major local news organizations showed up. Instead, a large group of supporters, headed by ESPLERP's Maxine Doogan, headed to a local restaurant for lunch.

Pictured: H. Louis Sirkin and Maxine Doogan on courthouse steps.