SAN FRANCISCO, Calif.—Plaintiff's lawyers in ESPLER Project v. Gascon, the case challenging the constitutionality of California’s antiprostitution ordinance, filed a supplemental brief in U.S. District Court on Friday, outlining how last June’s landmark U.S. Supreme Court ruling overturning state bans on samesex marriage supports their arguments that the rights of sex workers and their clients deserve similar legal protection.
Judge Jeffrey White had asked both sides in the prostitution case to submit supplemental briefs addressing the implications of Obergefell v. Hodges—the historic June 2015 U.S. Supreme Court decision that struck down the remaining state laws prohibiting same-sex marriage—on the current matter awaiting his ruling.
Plaintiffs have taken this request for additional briefs as an encouraging sign, since Judge White would have little apparent need for such information if he intended to grant the defendants’ motion to dismiss.
In their brief, attorneys for the Erotic Service Providers Legal, Education, and Research (ESPLER) Project affirm that the Obergefell ruling shields private sexual relationships from governmental oversight and upholds the rights of individuals to engage in intimate conduct without unwarranted State intrusion under the due process clause of the Fourteenth Amendment.
“The Justices in Obergefell categorically rejected the idea that we must rely upon the democratic process to protect our constitutional liberties,” said ESPLER president Maxine Doogan. “We’ve tried legislative initiatives in the past to stop this government persecution but as with initial efforts to defend gay rights at the ballot box, the forces opposing us were still too powerful.”
“It is a shame that Kamala Harris is siding with state discrimination and bigotry by choosing to actively defend this outdated law,” said Starchild, a San Francisco-based sex worker and libertarian activist who supports the ESPLER Project’s lawsuit that names Harris as a defendant in her official capacity as California attorney general.
“She could have declined to use taxpayer resources to defend section 647b of the state penal code, just as she declined to use the resources of her office to defend Proposition 8 when civil rights activists challenged that similarly prejudiced law in court.”
Supporters of sex work rights believe that just as Prop. 8’s denial of equal rights to same sex couples was ultimately defeated, bans on the consensual purchase of sexual services will also be sent to history’s ash heap sooner or later; the only question is when and how.
“Right now it’s in Judge White’s lap,” said Starchild. “He could go down in history as a Dred Scott judge, or an Obergefell judge. Obviously we hope he will choose the latter.”
