a Constitutional right to pay for sex?

[vaskidmark]

If this succeeds, will it ever be enough to justify a trip to California?

WHEN LOVE ISN’T FREE:  http://pjmedia.com/instapundit/when-love-isnt-free-an-organization-representing-prostitutes-in-california-yes-you-read-that-r/#respond

  An organization representing prostitutes in California (yes, you read that right) has filed a lawsuit http://www.bizjournals.com/sanfrancisco/news/2015/04/14/exclusive-prostitution-lawsuit-california-legalize.html?page=all  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 http://www.nbcnews.com/news/us-news/utah-judge-rules-favor-polygamist-family-sister-wives-n191021 , 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, http://www.nationalreview.com/article/376709/odd-throuple-christine-sisto  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.’

 

stay safe.

[RoadKingLarry]

I support allowing two or more consenting adults to pretty much do what ever they damn well please so long as no one is harmed and non-participants don't get forced to otherwise be involved.

Underage sex slavery and other non-consensual stuff and the like should be punished extremely harshly.

[makattak]

Wow. Who could have seen this coming!?

Oh. Right. Scalia.

[RevDisk]

I'm not overly fond of prostitution, but do believe it should be legalized for public safety, let alone the obvious constitutional grounds. 

[MechAg94]

Will we then see Homosexual activists sue to force people to have sex with them for money? 

[wmenorr67]

I'm not overly fond of prostitution, but do believe it should be legalized for public safety, let alone the obvious constitutional grounds. 

This, then you can force them to collect "entertainment" taxes.

[Jamisjockey]

I support allowing two or more consenting adults to pretty much do what ever they damn well please so long as no one is harmed and non-participants don't get forced to otherwise be involved.

Underage sex slavery and other non-consensual stuff and the like should be punished extremely harshly.

I would argue that even harm, when done by consenting adults, is ok.  How dare the state interfere with the arrangement between consenting adults?
 Hookers will start carrying consent forms lol

Will we then see Homosexual activists sue to force people to have sex with them for money? 

Only when seeking prostitution...you won't be able to refuse the services of a same sex hooker?  

[MechAg94]

Only when seeking prostitution...you won't be able to refuse the services of a same sex hooker?  

You have to admit that the precedents would apply.  If service providers are not allowed to refuse service, then they are not allowed to refuse service. 

[roo_ster]

These sorts of decisions are best made at the state and local level by their polities as modifications to common law crime and enforcement.  Making it a constitutional matter will bring a multitude of unintended consequences.

[Jamisjockey]

These sorts of decisions are best made at the state and local level by their polities as modifications to common law crime and enforcement.  Making it a constitutional matter will bring a multitude of unintended consequences.

Which boils down to the original framework of the constitution.  Our country wasn't built on the principle of making all manners of things illegal at the federal level, or "constiutionalizing" things. However, at some point, arguments that can't be resolved at the state level are elevated to the supers for them to make that call.

[Monkeyleg]

I'm not overly fond of prostitution, but do believe it should be legalized for public safety, let alone the obvious constitutional grounds. 

When you say "for public safety", I'm assuming that you mean that the government would have some sort of controls. Bad idea. It's sex, not air traffic control. Nevada's regulations on the prostitution business actually ruined it, which is why the high-end hookers still operate illegally.

[De Selby]

When you say "for public safety", I'm assuming that you mean that the government would have some sort of controls. Bad idea. It's sex, not air traffic control. Nevada's regulations on the prostitution business actually ruined it, which is why the high-end hookers still operate illegally.

Yep - it's a service that has to actually gain something from regulators if there's ever to be hope of regulation.

I can't fathom what a regulator might offer.  Maybe identity protection and tax concessions for participating in safety checks?  Something like a government issued hooker id that lets you set up bank and credit accounts with no connection to your real name?

[Perd Hapley]

Yep - it's a service that has to actually gain something from regulators if there's ever to be hope of regulation.

I can't fathom what a regulator might offer.  Maybe identity protection and tax concessions for participating in safety checks?  Something like a government issued hooker id that lets you set up bank and credit accounts with no connection to your real name?

I'm not in favor of any sex-work regulation (aside from age, consent, and other obvious stuff), but I would think the prostitute (or her pimp) might lose some business if the gub'mint ain't checked her for STDs (if the gub'mint started doing such). On the other hand, how many "Johns" are going to bother to check?

[Firethorn]

I'm not in favor of any sex-work regulation (aside from age, consent, and other obvious stuff), but I would think the prostitute (or her pimp) might lose some business if the gub'mint ain't checked her for STDs (if the gub'mint started doing such). On the other hand, how many "Johns" are going to bother to check?

Just the 'promise' of a clean prostitute would draw quite a few more Johns to legitimate establishments, I think, and in order to advertise and such, they'd have to be legit.

[Fitz]

Bah never mind