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Will California Legalize Prostitution? Lawsuit Tries to Make It So

By Casey C. Sullivan, Esq. on March 23, 2015 | Last updated on March 21, 2019

A nonprofit representing California sex workers is currently suing to overturn the state's laws against prostitution and solicitation. The organization, Erotic Service Provider Legal, Education and Research Project (ESPLER, a very unsexy acronym), argues that the state's prohibitions on sex work violates the Fourteenth Amendment.

So, is California about to go the way of Amsterdam or certain counties in Nevada and decriminalize the world's oldest profession? It's doubtful, but ESPLER thinks it's possible.

What's Next, Recreational Heroin? Marrying Your Dog?

In their complaint, ESPLER argues that anti-prostitution and solicitation laws impinge upon the substantive due process rights guaranteed by the Fourteenth Amendment and invoke the liberty interests in one's private sexual relationships. They rely heavily on Lawrence v. Texas, the Supreme Court case overturning bans on sodomy, and Latta v. Otter, the recent Ninth Circuit ruling on the unconstitutionality of same-sex marriage bans.

It's a similar argument that Justice Scalia warned against in his vehement dissent in Lawrence. Decriminalize same-sex sexual relationships and you undermine "laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours a week in a bakery." ESPLER certainly hopes that's true in at least one case.

Deeply Rooted in the Nation's History

To demonstrate that a right is protected by substantive due process, one must show that the unenumerated rights claimed are "implicit to the concept of ordered liberty," that their denial "offends decency and fairness" and that they are "deeply rooted in the nation's history."

That "deeply rooted in the nation's history" requirement has often been a stumbling block for those arguing for greater sexual liberty, but faced with the nation's oft-cited Puritanical past. ESPLER tries to get around this with some creative arguments, noting that prostitution wasn't statutorily banned in California until the 1960s. It was also, they argue, integral to the state's development, as sex workers often followed close behind prospectors.

Crowd Funding Decriminalization

ESPLER had originally sought to fund their lawsuit at least in part through a GoFundMe campaign. However, when that site changed their terms of use, the organization's drive was canceled. ESPLER says that decision, just like California's prostitution law, is arbitrary and discriminatory. They're currently collecting donations directly through their website.

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