Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Thursday, January 18, 2018

Ninth Circuit Holds No Legal Right to Prostitution

No Right to Earn a Living Via Prostitution, Says Federal Court

A federal appeals court has sided against the Erotic Service Providers Legal, Education, and Research Project (ESPLERP) in a case challenging the constitutionality of California's law criminalizing prostitution.

 

During oral arguments last October, judges from the U.S. Court of Appeals for the 9th Circuit seemed somewhat sympathetic to ESPLERP's position, which relied on similar arguments to those used in Lawrence v. Texas, the case that destroyed the country's laws against gay sex.

 

But in an opinion released today, a three-judge panel wound up affirming the district court's decision to dismiss the lawsuit. The panel rejected the idea that Lawrence v. Texas "created a liberty interest that prohibits a state from criminalizing prostitution," ruling that "a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment."

 

The court also concludes that sex workers' rights to earn a living is not violated by the criminalization of prostitution because prostitution is illegal and "there is no constitutional rights to engage in illegal employment."

 

Read the whole disappointing decision here.

 Sex for Sale is Not a Constitutional Right

The U.S. Supreme Court’s 2003 ruling that declared a constitutional right to “intimate conduct” such as gay sex didn’t apply to sex for sale, a federal appeals court ruled Wednesday in upholding California’s 146-year-old ban on prostitution.

 

Three former prostitutes, a would-be client and the Erotic Service Providers Legal, Educational and Research Project had argued that the high court, in striking down state laws against gay or lesbian sexual activity, recognized an adult’s right to engage in consensual sex without state interference. They maintained that the ruling extended to adults who consent to sex for a price.

 

A panel of the Ninth U.S. Circuit Court of Appeals in San Francisco seemed receptive to that argument at a hearing in October, suggesting that the 1872 state ban might need closer scrutiny.

 

One panel member said prostitution had been historically subjected to the same sort of moral disapproval that had once condemned gay sex, and might be more acceptable under the Supreme Court’s current view of individual rights. Another asked why it should be “illegal to sell something that it’s legal to give away.”

http://lawprofessors.typepad.com/gender_law/2018/01/no-legal-right-to-prostitution.html

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Comments

The court concludes that sex workers' rights to earn a living is not violated by the criminalization of prostitution because prostitution is illegal and "there is no constitutional rights to engage in illegal employment." This is WRONG! sex work is LEGAL in Rule counties in Nevada so what the court is saying is you must go work for a brothel & hand over your money to some mob pimp! I FINDS THIS DISCRIMINATORY!

Posted by: kim perrin | Jan 31, 2018 10:57:11 PM

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