The reason this might actually make sense, Gill Sperlein, a local lawyer working with Sirkin, told me, is that the US Supreme Court has moved a long way toward recognizing that what happens between adults in private isn’t the business of law enforcement.
“In the Lawrence decision,” he said, “the Court said you can’t use morality to criminalize.”
He was talking about Lawrence v. Texas, the landmark case in which a 6-3 majority ruled that the Texas anti-sodomy laws were an unconstitutional violation of privacy and due-process rights. It will serve as the basis for the new case, Sperlein noted.
In fact, Sperlein said, Justice Antonin Scalia’s dissent makes the point:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers‘ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)).
He’s been proven right: State laws against same-sex marriage have not held up to Constitutional challenge. And now, perhaps, the same standard will be applied to sex work.
“If the only justification for laws against prostitution is morality,” Sirkin told me by phone today, “there is no way to legally defend it.”
While that may sound like a stretch for this Supreme Court, the trend is actually in favor of legalization. Canada’s Supreme Court just struck down that country’s prostitution laws. “Most Western European nations have decriminalized,” Sirkin said.
“We’ve grown up. The message from Canada is clear. It’s time.”
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The suit is sponsored by the Erotic Service Providers Union Legal Education and Research Project, organized by local activist Maxine Doogan. I ran into Doogan Sunday at a fundraiser; Melinda Chateauvert, a historian and author, was the keynote speaker.
Chateauvert’s new book is a history of the sex-worker movement, and she spoke at a new (well-appointed) dungeon on Folsom St. She noted that half the people in the sex industry hold legal jobs (videographers, webmasters, costume crews, etc.) and argued for an approach to sex work that allows people to enter – or leave – the industry without the legal barriers they now face.
She talked about the modern political response to legalization and pro-sex-worker efforts – concerns over trafficking – and pointed out that criminalizing sex work “makes it harder to escape.”
Doogan told the modest but enthusiastic crowd that it won’t be easy to move the case through the courts. “We need to raise $100,000,” she said.
But on a national level, as well as a local level, the potential cost savings would be enormous: Tens of millions of dollars are wasted every year arresting, prosecuting, and locking up people who work in the sex trade.
The suit would likely be filed in US District Court in San Francisco, and name the San Francisco district attorney, George Gascon, and Attorney General Kamala Harris as defendants. Plaintiffs would be people who would, should the law allow it, hire sex workers. “And we may get a prostitute from Nevada who, but for the law, would work in California,” Sirkin said.
Could the courts do what politicians and, so far, the voters have failed to do? It’s possible. There’s certainly a good argument. Because if you get down to basic logic, the laws against sex work make absolutely no sense.
