SAN FRANCISCO – The Erotic Service Providers Legal, Education and Research Project (ESPLERP) has announced a change to its legal strategy in challenging the constitutionality of California’s anti-prostitution law.
Rather than seeking an appeal before the U.S. Supreme court of the Ninth Circuit Appellate Court’s decision in ESPLERP v. Gascon, ESPLERP will instead challenge the statute in the California State court system, with the first step to take place in California Superior Court.
“We were disappointed that the Ninth Circuit missed an opportunity to declare that the Constitution protects the right of consenting adults to engage in private sexual activity” said Louis Sirkin, the prominent First Amendment and criminal defense attorney representing ESPLERP. “We were also disappointed that their decision relied on a 1998 case (IDK, Inc. v. Clark Cnty.), which has since been clearly superseded by Lawrence v Texas, the 2003 Supreme Court case which struck down sodomy laws nationwide and established a constitutional right to sexual privacy.”
ESPLERP Board Member Phil Thomas said pending changes to the makeup of the Supreme Court were an important factor in the decision to take the challenge to state court.
“With Justice Kennedy now retiring and no longer available to review his majority opinion in Lawrence v Texas, an opinion that affirmed sexual privacy, and being the key cases underpinning our case, there are too many unknowns in the Federal court system,” Thomas said. “With him gone, and whoever is appointed, we are assuming that the Supreme Court will swing significantly against civil rights in general. So, we do not see the sense of filing an appeal to a hostile Supreme Court. Better to seek protection in the California State court system.”
In a telephonic press conference held Thursday, Sirkin also noted that California has been “one of the leaders in recognizing many different individual rights.”
“State court seems like a better battleground,” Sirkin added.
During the call, Sirkin and ESPLERP President Maxine Doogan echoed Thomas’ comments on the reasoning behind changing venues in their legal challenge and bemoaned the marginalization of sex workers driven by laws prohibiting prostitution – as well as the lack of a safe means for sex workers to come forward and participate in the legislative process as stakeholders.
Doogan said while there are some state legislators who have privately indicated their support for decriminalizing sex work, those legislators typically are hesitant to make their support known publicly and often are more focused on how sex work would be regulated by the state, were it to be decriminalized.
“Legislators think in terms of regulatory schemes” like those put in place by states which have legalized medicinal cannabis, Doogan said. “The challenge is how to get sex workers to the table. We need a pathway for the workers to come forward, we need a clear way for them to participate without retaliation. We need anti-discrimination legislation first.”
Sirkin said while the decision has been made to take their challenge to state court, the timing and other details are still to be decided.
“Right now, we’re getting our thoughts together and getting ready to move forward,” Sirkin said. “I can’t give you an exact time frame, but we don’t want to wait long.”
ESPLERP has established a crowdfunding campaign for those who wish to donate to the cause. Contributions can be made at LitigateToEmancipate.com.
For more information on ESPLERP and its mission, visit ESPLERP.org.
