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If The Ninth Circuit Were As 'Radical' As You Think, Prostitution Would Be Legal Today

1st and 14th Amendment appeals against prostitution prohibitions fall short.

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I spent a lot of time trying to think of a tasteful, non-exploitative image for a prostitution post. It doesn’t exist. Fantine is basically the *mascot* of prostitution, so that’s why she’s here.

On the one hand, if any President were to ever make a full-on case for legalized prostitution, you’d expect it to be this one. Who else could come out in favor of legalized whoring and STILL have the Christian community support him because the Christian community has shown itself to be a collection of hypocrites who support Trump no matter what?

On the other hand, if any circuit was going to rule prohibitions against prostitution unconstitutional, you’d expect it to be the Ninth Circuit. There is a libertarian argument for prostitution, there is a labor argument for prostitution, and I’m sure Tech Bros can come up with some grand technocratic support for legalized prostitution.

One theory about the universe is that it does not allow itself to contradict itself. You can’t go back in time and shoot your grandfather. Similarly, Trump and the Ninth Circuit are not really allowed to agree. I don’t think anybody would be surprised about any sexual proclivity Donald Trump may have. Which means that, from the standpoint of an internally consistent universe, the Ninth Circuit had to reject the possibility of legalized prostitution.

From the Washington Post:

The Erotic Service Provider Legal Education and Research Project, or ESPLERP, filed a lawsuit in federal court in 2015 claiming that, under the Supreme Court’s ruling [in Lawrence v. Texas], California’s anti-prostitution law violates the constitutional rights of prostitutes and clients to engage in consensual sexual activity. They even went so far as to say that the ruling barred laws criminalizing prostitution among adults and that paying for sex was a form of protected commercial speech.

It was a novel argument, but not one that the U.S. Court of Appeals for the Ninth Circuit found convincing.

On Wednesday, the San Francisco-based court threw out the lawsuit, ruling that paying for sex didn’t count as the type of “intimate conduct” that Supreme Court justices had in mind.

“There is no constitutional rights to engage in illegal employment, namely, prostitution,” Judge Jane A. Restani wrote for the three-judge panel.

It’s worth noting that there’s no constitutional prohibition on a law legalizing prostitution either. If Congress wanted to pass such a law, I’m sure President Trump would sign it.

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But the Ninth Circuit isn’t just going to read in a Constitutional right to prostitution. And I’m pretty sure equating who and how two consenting individuals choose to love — which is what the petitioners did by resting their arguments on Lawrence v. Texas — with some John paying for sex on the street from a citizen of limited means and options, is offensive. I can think of a couple of good arguments to legalize prostitution and “because gay people have sex” is NOT one of them.

In any event, the Ninth Circuit may be an exciting mix of progressive and libertarian ideals… but it’s not freaking crazy.

They argued that prostitution is a constitutional right. Nice try, said federal court. [Washington Post]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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