Wednesday, January 17, 2018

ESP LERP v. Gascon (9th Cir. - Jan. 17, 2018)

When the name of the plaintiff on the caption is "Erotic Service Provider Legal Education and Research Project," you're pretty much required to read the underlying opinion, right?

Of course you are.  If only to figure out what the heck that organization does.

Here, it's a constitutional challenge to California's law against prostitution.  Plaintiffs say that have a constitutional right to do what they want (sexually, at least) with their bodies -- even for money.  The district court dismissed on the pleadings.

Not surprisingly, the Ninth Circuit unanimously affirms.

This was a lost cause from the beginning.  Sure, Lawrence opened up a lot of things to potential challenge on the sex front.  But prostitution was carved out even in that opinion.  So there was little doubt -- notwithstanding the substantial amici involvement in the case -- where this one was going to end up.

Which is not to say that plaintiffs will never prevail.  Who knows what the next decade or so (or decades) will bring?  Few would have predicted, for example, that gay marriage would end up where it is now so quickly.

But at least for now, this is an idea whose time has not yet come.  At least in the judiciary.

And it isn't even especially close.