California Laws Against Prostitution Not Unconstitutional, According to Ninth Circuit

By Christopher Coble, Esq. on January 19, 2018 | Last updated on March 21, 2019

From the state that brought you decriminalized prostitution by minors, came a lawsuit to legalize prostitution for everyone. The Erotic Service Provider Legal, Education & Research Project (ESP) had sued the district attorneys of the City and County of San Francisco, Marin County, Alameda County, and Sonoma County, all the way up to the Attorney General of California, in hopes of invalidating California's ban on prostitution.

The lawsuit made several constitutional claims, including that the ban violates the Fourteenth Amendment's substantive due process right to sexual privacy, and the freedom of association protected under the First or Fourteenth Amendments. Unfortunately for the plaintiffs, prostitutes, and Johns, those claims were dismissed by the Ninth Circuit Court of Appeals, and the dream of making the world's oldest profession legal appear to have been dashed.

The Case Does Not Involve Prostitution

In its ruling issued this week, the Ninth Circuit ruled that a relationship between a prostitute and a client is not protected by the Constitution; therefore states may prohibit prostitution if they have a rational basis for ban. And the court found that California's reasons for criminalizing prostitution, including discouraging human trafficking and violence against women, were rational enough to uphold the laws.

The plaintiffs tried to rely on a famous Supreme Court Case, Lawrence v. Texas, which invalidated laws banning homosexual sodomy. They argued the ruling "guarantees to consenting adults a fundamental liberty interest to engage in private sexual activity." But the Ninth Circuit disagreed, pointing out that no other court had extended the rights protected in Lawrence to prostitution, and, in fact, the Supreme Court was explicit in saying the case "does not involve ... prostitution."

Ban's Rational Basis

Because that relationship doesn't garner Constitutional protection, a state only needs a rational basis for having the law, meaning there is an important government interest behind the law, and the law actually furthers that interest. The Ninth found both of those to exist in California's prostitution ban:

We hold that the statute, however, does pass the two-tiered rational basis test. Section 647(b) has a legitimate purpose, as the State proffers specific and legitimate reasons for criminalizing prostitution in California, which include discouraging human trafficking and violence against women, discouraging illegal drug use, and preventing contagious and infectious diseases. Additionally, as the District Court concluded, the State provided adequate argument to establish that Section 647(b) promotes those purposes.

So the ban lives to see another day, although ESP may appeal the decision to the Supreme Court.

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