April 15, 2015

WHEN LOVE ISN’T FREE:  An organization representing prostitutes in California (yes, you read that right) has filed a lawsuit in a federal district court in San Francisco, arguing that the Supreme Court’s substantive due process “liberty” decisions–which protect the right of consenting adults to engage in sex in private–also protect the right of consenting adults to pay for sex.  If it’s legal to have sex, the plaintiffs argue, how can it be illegal to pay for it?  And relatedly they argue:  If a person can pay for dinner, wine, roses and other items as a prelude to sex, why not just offer to pay the sexual partner cash instead?

This kind of litigation was predictable after the Court’s decision in Lawrence v. Texas (recognizing the liberty of consenting adults to engage in private, homosexual sodomy), though the Lawrence Court did explicitly note that the case didn’t involve sex-for-hire.   Justice Scalia’s dissent in Lawrence presciently predicted that it would open the floodgates to challenges of traditional marriage laws, prostitution, polygamy, and even incest.

In August, a federal trial judge in Utah struck down that state’s polygamy ban, concluding that it violated the 1st Amendment free exercise of religion rights of the “Sister Wives” polygamist TV show family.  Ruling on First Amendment grounds, however, is much narrower than on substantive due process “liberty” grounds.  So the question remains:  Do the rest of us–who aren’t particularly religious–have a constitutional right to polygamy?  Stay tuned– a lesbian “throuple” (3 persons) in Massachusetts is openly defying that state’s anti-polygamy law, claiming a right to polygamy.  

Polygamy aside, if we have a constitutional liberty to have sex, do we have a corresponding liberty to pay for sex?  Arguably, yes.  After all, doesn’t criminalization of prostitution demean the humanity and dignity of a person who has no romantic sexual partner? Or whose partner is physically unable to have sex with him/her?  Must that person seek out an adulterous or other third party “romantic” relationship, when all he/she really wants is sex?

One possibility the courts may use to distinguish prostitution is that it involves “commercialization” of sex, which is a distinction that still justifies legal prohibition of the sale/distribution of obscenity, but simultaneously allows individuals to consume/possess obscene materials in the privacy of their own home (Stanley v. Georgia).   But then again, if prostitution occurs in private– and particularly, in a private home (as opposed to a commercial establishment, such as a brothel), one would think the privacy-of-the-home rationale of Stanley could similarly grant constitutional protection to in-home prostitution.

Should the courts be “constitutionalizing” these sexual activities, or allow the political process to play out?  One state, Nevada, has statutorily allowed prostitution in certain places, pursuant to state regulation.

Being a libertarian, I see the policy arguments for enacting statutes like Nevada’s.  But being a constitutionalist, I think there are some democratic dangers to giving unelected federal judges the power to constitutionalize every “liberty” claim, which cuts short the political debate inherent with legislative change.  And the mother in me (which is inherently conservative) –with a teenage daughter– gets a little worried when I think of a world in which prostitution and polygamy are legal.  The times, they are a-changin.’

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