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Friday, July 19, 2024 | Back issues
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Judge Finds No Basic |Right to Prostitution

SAN FRANCISCO (CN) - A federal judge dismissed a lawsuit challenging the constitutionality of California's law against prostitution, for failure to state a claim.

Erotic Service Provider Legal, Education & Research Project a San Francisco-based advocacy group sued Attorney General Kamala Harris and district attorneys of four counties in March 2015, claiming that prosecuting sex that is "part of a voluntary commercial exchange between adults" violates the state and U.S. Constitutions.

In dispute were rights to due process, free speech and freedom of association.

But U.S. District Judge Jeffrey White on March 31 agreed with the state's claims that "there is no fundamental right to engage in prostitution or to solicit prostitution" and that "any relationship between the prostitute and the client is not expressive association protected by the Constitution."

White was "not persuaded" by the plaintiffs' argument that the Supreme Court "has shifted the definition of the protected liberty interest to comprise merely sexual or intimate conduct, as opposed to the relationship in which the sexual or intimate conduct occurs."

The due process analysis, he said, should not be "predicated exclusively upon an asserted fundamental right to commercial sex."

"This case challenges particular intimate conduct within a specific context in that courts have deigned not to afford constitutional protection," White wrote.

He added that Ninth Circuit precedent "dictates that the intimate association between a prostitute and a client, while it may be consensual and cordial, has not merited the protection of the due process clause of the Fourteenth Amendment."

White also dismissed the First Amendment claims, holding that "the First Amendment's protection of freedom of association does not protect the relationships at stake in the context of prostitution."

He found the claim of violation of substantive due process right to earn a living "eviscerated" because "plaintiffs have not stated an actionable substantive due process claim related to the criminalization of prostitution."

"Plaintiffs have failed to demonstrate that they have a protectable liberty interest in the profession of prostitution," White ruled. "And the state's generalized regulation banning such a profession does not pose a due process problem."

White gave the plaintiffs leave to amend the complaint by May 6. If they do not, he will dismiss it with prejudice.

Wayne Snodgrass, who represents San Francisco District Attorney George Gascon, said in an email that he was pleased by White's ruling.

The plaintiffs' lead attorney did not immediately respond to an email request for comment Tuesday afternoon.

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