SAN FRANCISCO—Just two weeks after a three-judge panel of the Ninth Circuit Court of Appeals affirmed a trial court's dismissal of ESPLERP v. Gascon, the lawsuit which sought to eliminate California's prostitution laws, First Amendment attorney H. Louis Sirkin, the lead counsel on the case, has filed a Petition for Rehearing En Banc in the case.
The Ninth Circuit's opinion itself was a bit strange, having been written by Judge Jane A. Restani who normally sits in the Court of International Trade, but had a seat on the panel "by designation." It's highly unlikely that Judge Restani, in her International Trade Court role, had many if any cases involving sexual rights.
In coming up with her opinion, Restani relied heavily on a 1988 case IDK, Inc. v. County of Clark—though Restani referred to it in the opinion as a 1998 case—which challenged Clark County, Nevada's regulations and licensing of escort services, and in which a Ninth Circuit panel found such regulation to be constitutional. However, coming five years before the U.S. Supreme Court's landmark decision in Lawrence v. Texas, where even ultra-conservative Justice Antonin Scalia opined in his dissent that "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," it's questionable whether IDK is even relevant anymore. [Emphasis added] (Bowers, of course, is Bowers v. Hardwick, the Supreme Court case which had originally upheld the criminalization of same-sex sex, but which was overturned by Lawrence.) Of course, it's unlikely that today's Supreme Court would have ruled the same in Lawrence, but the law is the law, and the Ninth Circuit should have respected it in the current decision.
And it didn't take Judge Restani long to commit a grievous error in dismissing the plaintiffs' due process claims, denying that there is a "fundamental liberty interest in private consensual sex between adults that extends to prostitution." She takes that position, even though Justice Anthony Kennedy clearly says in Lawrence—in fact, in the first paragraph of that opinion—that "Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." And while Restani is correct that Justice Kennedy states in the opinion that, "The present case does not involve minors. ... 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," her interpretation of that is flawed. [Emphasis added]
Restani instead relies on the IDK case which predates Lawrence to claim that the Ninth Circuit then "determined that the relationship between a prostitute and client is not protected by the due process clause of the Fourteenth Amendment," and that because the Supreme Court did not define exactly what "intimate conduct" is protected by the Fourteenth Amendment, she feels free to ignore the import of Lawrence in order to preserve the prostitution laws as having "some legitimate government purpose"—which they clearly don't.
And what is that so-called "legitimate government purpose"? Why, "an established link between prostitution and trafficking in women and children," not to mention "a climate conducive to violence against women," and a "link[] to the transmission of AIDS and other sexually transmitted diseases."
To take that middle point first, if prostitution were legal, prostitutes would be able to go to police if a client beat them up, thereby cutting down on any possible violence that might be inflicted upon them.
Also, the plaintiffs are only looking to legalize prostitution for consenting adults, not trafficked women or children, both of which groups would be more easily detectable if prostitutes were allowed to practice their profession openly—and possibly even required to have STD screenings on a regular basis as are the prostitutes working in Nevada brothels.
But no; as far as Restani is concerned, "such assertions do not undermine the 'rational speculation' found sufficient to validate the [anti-prostitution] legislation."
Restani similarly denies that the relationship between a prostitute and a client is comparable to the "intimate association" between two homosexuals because, quoting IDK, it "lasts for a short period and only as long as the client is willing to pay the fee." Funny thing; the Supreme Court didn't cabin the Lawrence decision in terms of how long the homosexual partners needed to be together, or whether one paid the other for his "services." And in any case, no matter how long it lasts, sexual intercourse is pretty damned intimate no matter how one looks at it!
Restani similarly dismisses ESPLERP's constitution claims of a Fourteenth Amendment "right to work" and to "enter into contracts," not to mention a First Amendment right to "solicit" business. But that's "commercial speech," and according to Restani, in order for commercial speech to receive First Amendment protection, it has to "concern lawful activity and not be misleading"; "serve a substantial government interest"; "directly advance the governmental interest asserted"; and "be narrowly tailored."
Most of that, of course, is crap. Since when does a soap commercial on TV "serve a substantial government interest" or "directly advance" that interest? In fact, the only violation of that standard that prostitution falls under is the "lawful activity" part—and that's exactly what this lawsuit is challenging!
Oh; and what is the "substantial government interest" being asserted here? "Banning the commodification of sex is a substantial policy goal that all states but Nevada have chosen to adopt. We therefore conclude the interest in preventing the commodification of sex is substantial." What business is it of the state whether sex is "commodified" or not? Two free consenting adult citizens want to enter into a contract to have sex; what business is that of the state's?
Sirkin, of course, makes many of these same points in his petition. He notes that the Lawrence opinion means that "the liberty protected by the Fourteenth Amendment includes the right of consenting adults to engage in private sexual activity," and gently castigates the Ninth Circuit's opinion for having "declined this opportunity to clarify the contours of Lawrence."
Sirkin also argues that Lawrence clearly supercedes the IDK decision, since under IDK, "the Fourteenth Amendment only protects an adult against the State intruding in his or her private sexual life if that sexual life occurs in tandem with a relationship that has 'deep attachments or commitments.' This conflicts with the Supreme Court’s decision in Lawrence because, in Lawrence, there was no evidence whatsoever that the petitioners were part of a relationship with deep attachments or commitments."
Sirkin also took the panel to task for applying only "rational basis" scrutiny to the state's prostitution laws, even though in another Ninth Circuit decision, Witt v. Department of Air Force, this same court (though a different panel) ruled that questions about sexual rights under Lawrence required "heightened scrutiny." Under heightened scrutiny, all that crap about the supposed "substantial government interests" are right out the window.
Sirkin spends much of the petition discussing the differences between the outcomes in IDK and Lawrence, making the case that Lawrence should be controlling even in the Ninth Circuit, especially since in Lawrence, the high court made it clear that the Lawrence plaintiffs "were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution." Sirkin also delves further into the "heightened scrutiny" required in Lawrence cases that the Ninth Circuit failed to apply here.
"We're disappointed that the Ninth Circuit missed the 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," Sirkin stated. "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 is an important issue that affects all Americans, and it deserves further consideration by the courts."
"We simply have to ask for a rehearing," added Maxine Doogan, President of ESPLERP. "This is a ground-breaking case that seeks to protect sexual privacy for everyone—and we are going to leave no stone unturned in seeking justice and our constitutional rights."
It is unknown when the full Ninth Circuit will consider and rule on Sirkin's petition, but it's undeniable that the attorney makes such cogent points that the full court would have to apply some convoluted twists to the law to uphold this case's dismissal.
