The constitutional principles cited in the U.S. Supreme Court’s ruling last June legalizing same-sex marriage nationwide are being used to support a lawsuit seeking to overturn California’s anti-prostitution law.
Lawyers representing a sex workers rights group and five of its constituents argue in a court brief filed Jan. 15 in the U.S. District Court for Northern California that the high court’s marriage decision known as Obergefell v. Hodges supports their contention that the state’s ban on prostitution involving consenting adults violates their clients’ constitutional rights.
“Plaintiffs commenced this lawsuit to challenge California’s intrusion upon their fundamental liberty interest in deciding how to conduct their private lives in matters pertaining to sex,” the lawyers state in their brief.
“Obergefell continues the Supreme Court’s jurisprudential theme of shielding private, sexual relationships from governmental oversight,” the brief says. “Obergefell confirms that the Due Process Clause of the Fourteenth Amendment allows individuals to engage in intimate conduct without unwarranted governmental intrusion,” it says.
The lawsuit, which was filed last March, names as defendants California Attorney General Kamala Harris, a longtime LGBT rights supporter; the District Attorney of the city and county of San Francisco, George Gascon; and the district attorneys of the nearby counties of Marin, Alameda and Sonoma.
Each of the defendants is being sued in his or her “official capacity only,” the lawsuit says, in their role as enforcers of Section 647(b) of the California Penal Code.
That section of the code, among other things, declares that every person who “solicits or who agrees to engage in or who engages in any act of prostitution” is guilty of disorderly conduct, a misdemeanor under state law.
In addition to citing the Fourteenth Amendment’s Due Process Clause, the lawsuit says the state’s anti-prostitution statute also violates the plaintiffs’ First Amendment rights to free speech and freedom of association; and violates similar provisions in the California Constitution.
In May, Harris, acting in her official capacity as state attorney general, filed a motion to dismiss the case on grounds that the lawsuit fails to “state a claim as a matter of law.”
Harris also disputed the lawsuit’s claims that the anti-prostitution law is unconstitutional.
“There is no fundamental right to engage in prostitution or to solicit prostitution,” she states in the motion to dismiss. “Neither is prostitution or solicitation expressive conduct protected by the First Amendment,” her brief states.
The Supreme Court handed down its Obergefell decision about a month after Harris filed her motion to dismiss. At that time, U.S. District Court Judge Jeffrey White was deliberating over the motion and the plaintiff’s brief opposing the motion.
In August, as White continued his deliberations, attorneys representing the plaintiffs asked him to allow them to file a supplemental brief to take into account the effect of the Obergefell decision on their case. In November, White issued an order granting that request and calling on both parties in the case to submit “supplemental briefing on the effect of the recent same-sex marriage precedent on the issues currently pending before this court.”
Maxine Doogan, president of the Erotic Service Providers Legal, Education, and Research Project – the lead plaintiff in the lawsuit – told the Washington Blade she views the judge’s action as a hopeful sign that he may be leaning against dismissing the case.
If he agreed with Harris’s contention that the lawsuit had no merit he could have rejected the plaintiff’s request for new briefs to address the Obergefell decision and ruled in favor of dismissal, Doogan said.
The legal team representing Doogan’s group and the other four plaintiffs includes H. Louis Sirkin, a nationally recognized expert on First Amendment law, and Brian O’Connor, both with the Cincinnati-based law firm Santen & Hughes. Also representing the plaintiffs is San Francisco attorney D. Gill Sperlein.
O’Connor told the Blade the Obergefell decision’s assertion that marriage is a constitutional right to which same-sex couples are entitled without having to go through the legislative process of repealing state laws banning same-sex marriage can be interpreted to apply to sex workers’ rights as well.
“In the Obergefell case, the Supreme Court said no, no, no. You don’t have to wait for the democratic process,” O’Connor said. “You have a constitutional right. The federal court is empowered to fix that, to protect your constitutional rights,” he said. “So that’s one of the ways we think Obergefell applies to our case.”
The brief that O’Connor and the other lawyers filed last week also cites the Supreme Court’s 2003 decision of Lawrence v. Texas, which struck down state laws criminalizing sodomy between consenting adults in private. The brief says the Lawrence decision is yet another interpretation of the constitution by the high court that can be interpreted to support the contention that anti-prostitution laws are unconstitutional.
“Obergefell is not an outlier or an anomaly,” the brief says. “Rather it is one of many points on a decades-long continuum of decisions respecting individuals’ liberty and sexual autonomy. The case currently before this court is simply one more point along this continuum.”