Does the right to privacy include the right to have consensual sex — for money? A federal court is going to get to decide

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Credit: POWER of Canada

By Tim Redmond

MARCH 4, 2015 – A group representing erotic service providers is filing suit this morning in federal court in San Francisco, charging that the California laws against prostitution are unconstitutional.

The case relies on a series of recent Supreme Court decisions recognizing the right of people to engage in private sexual conduct and seeks to extend those rights to people who do what everyone agrees is legal except for one element: The exchange of money.

If the case is successful – and it may take years to work through the courts – it would lead to a profound change in how this country deals with sex work, potentially removing consensual paid sex from the criminal statutes and saving tens of millions of dollars that’s now spent arresting, prosecuting, and imprisoning people in the sex industry.

It’s not a crazy, long-shot suit: The lead attorney on the case is H. Louis Sirkin, who achieved national fame for defending the Contemporary Arts Center in Cincinnati against obscenity charges for displaying the works of Robert Mapplethorpe.

The plaintiffs are the Erotic Service Providers Union, several people who would like to seek employment as sex workers if it were legal, and one man with a disability who wants to hire sex workers but is prevented from doing so by law.

The defendants are the district attorneys of San Francisco, Marin, Alameda, and Sonoma Counties and Attorney General Kamala Harris.

“American courts continue to recognize that private, consensual sexual activity is a fundamental liberty interest protected by the Fourteenth Amendment,” the complaint states. “Yet when the private, consensual activity occurs as part of a voluntary commercial exchange between adults, the State prohibits the activity and deprives those adults of their Constitutional rights.”

It notes:

“The commercial exchange of private sexual activity between consenting adults hurts no one … As such, there is no compelling or legitimate governmental interest in its criminalization.”

The case has been in the works for some time. I first met Sirkin two years ago, when he was out here to meet with local counsel D. Gill Sperlein and some of the possible plaintiffs.

At the time, he told me that he thinks the argument has a good change in the federal court system. In Lawrence V. Texas, the US Supreme Court essentially ruled that what happens in a bedroom between consenting adults is none of anyone’s business.

How much of a leap is it to argue that the exchange of money, or something else of value, falls under the same Constitutional protection?

On the surface, that may sound like a stretch. But like the War on Drugs, a growing number of experts think the War on (Commercial) Sex is a failure. And as the lawsuit points out, for much of the history of this country, prostitution was generally legal.

“For much of our nation’s history,” it states, “the commercial exchange of private sexual activity … was not illegal, was widely accepted, and was, in fact, integral to our development.”

California didn’t outlaw prostitution until 1961.

The suit also raises a First Amendment claim: The laws against sex work include provisions that criminalize the solicitation of, or consent to, commercial sex, even if nothing further happens. The state law, then, “makes pure speech a criminal activity,” the complaint notes.

Is there a federal judge who has the courage to say that the laws against commercial sex are illogical and pretty foolish? I don’t know. But the courts have moved social issues forward when politicians wouldn’t –and the argument, on its face, has a tremendous amount of merit.

I wonder which judge will get the assignment. It will be a great trial.

The suit is funded in part by this campaign, which you can join.