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You Do Not Have A Constitutional Right to Hire a Prostitute (Duh)

The Ninth Circuit recently ruled that there is no constitutional right for a private citizen to have sexual relations with prostitute.  Erotic Serv. Provider Legal Educ. & Research Proj. v. Gascon, 880 F.3d 450 (9th Cir. 2018).   

I hope you were sitting down for that bombshell.

Erotic Service Providers Legal Education and Research Project (“ESP”) consists of “three former ‘erotic service providers’ who wish to perform sex for hire, and a potential client who” wants to hire them.  880 F.3d at 454.  ESP claimed that California Penal Code § 647(b), which criminalizes prostitution, violates (1) the Fourteenth Amendment substantive due process right to sexual privacy, (2) freedom of association under the First or Fourteenth Amendment, (3) the Fourteenth Amendment substantive due process right to earn a living, and (4) the First Amendment freedom of speech.   Almost all of ESP’s claims were based upon the United States Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003).  The Ninth Circuit completely disagreed with ESP and its interpretation of Lawrence.

Here’s what you need to know:

Once Upon a Time, People Kept Suing and Losing For the Right to Hire Prostitutes

It should come as no surprise that the question of whether we have a constitutional right to hire prostitutes has been heavily litigated in our nation’s history.  Prostitution is, after all, colloquially referred to as the world’s oldest profession.

In 1988, the Ninth Circuit addressed and rejected the argument that the freedoms of association guaranteed by the First and Fourteenth Amendments protected anyone’s right to hire an escort.  IDK, Inc. v. Clark Cnty., 836 F.2d 1185 (9th Cir. 1988).  IDK, Inc. was an escort service based out of Las Vegas that argued Clark County’s regulations governing the licensing and operations of escort companies violated it and its clients’ First and Fourteenth Amendment rights to association.  Id. at 1187.

The Fourteenth Amendment of the United States Constitution protects the right to form “intimate associations.” Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).  The traditionally protected forms of “intimate associations” have been defined as “highly personal relationships,” and “those that attend the creation and sustenance of a family.”  Id. at 618-19.

In IDK, the Ninth Circuit rejected the argument that the relationship between an escort and a client was the type of “highly personal relationship” traditionally protected by the Fourteenth Amendment.  836 F.2d at 1193.  It reasoned:

The relationship between escort and client possesses few, if any, of the aspects of intimate association.  It lasts for a short period and only as long as the client willing to pay the fee.  Although a client may have some choice as to the person he or she wishes as a  companion, the escort must accompany whomever the employer selects.  Escorts and their clients do not claim to be involved in       procreation, raising and educating children, cohabitation with relatives, or the other activities of family life.  An escort may be involved with a large number of clients.  While we may assume that the relationship between them is cordial and that they share conversation, companionship, and the other activities of leisure, we do not believe that a day, an evening or even a weekend is sufficient time to develop deep attachments or commitments.

Id.

The Ninth Circuit also rejected the argument that the relationship between an escort and a client is protected by the First Amendment’s freedom of “expressive association.”  “Expressive association” generally protects activities like protests, assemblies, and any other gathering aimed at promoting religious, social or political speech.  Roberts, 468 U.S. at 622.

The Ninth Circuit found that there was no evidence that escort services include “expression [as] a significant or necessary component of their activities.”  Id. at 1195.  It reasoned that escort companies don’t advertise their employees’ skills in conversation or community service; therefore, it assumed “that clients select their companions on the basis of other criteria.” Id.  Plus, “[i]f a client does not care to engage in expressive activities while dating, we must assume that neither the escort services nor the escort compel the client to do so.  The escort services simply do not care what the couples talk about or whether they talk at all.”  Id. at 1196.  Accordingly, the Ninth Circuit rejected IDK’s argument that it had a constitutional right to offer escort services under the First and Fourteenth Amendment’s freedom of association.

Two years after IDK, the Movie “Pretty Woman” Was Released.

It didn’t change anything.

It just made Julia Roberts even more famous.

But Then Along Came Lawrence v. Texas

In 2003, the landscape of intimate association law changed when the United States Supreme Court issued its opinion in Lawrence v. Texas.  If you are unfamiliar with Lawrence, it is one of the landmark cases in gay rights.

Lawrence challenged the validity of Texas statute that criminalized certain types of sexual activity between members of the same sex.  539 U.S. at 563.  Speaking for the majority of the Court, Justice Kennedy struck down the Texas statute as unconstitutional under the freedom of association guaranteed by the Due Process Clause of the Fourteenth Amendment.  He reasoned that anti-homosexual statutes “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals,” and “[t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.”  Id. at 567.  In reaching his holding, Justice Kennedy held:

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a           homosexual lifestyle.  The petitioners are entitled to respect for their private lives.  The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

Id. at 578.

12 years after Lawrence, Justice Kennedy again drew upon this reasoning and ruled that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”  Obergefell v. Hodges, 135 S. Ct. 2584, 2604-2605 (2015).

One thing that Lawrence did not address is the right to hire a prostitute.  To the contrary, Justice Kennedy specifically remarked that Lawrence did “not involve public conduct or prostitution.”  539 U.S. at 578.

Enter ESP and A Shocking Number of Other Lawsuits

Following Lawrence, people began suing all over the country for their right to “associate” with prostitutes by paying them to engage in private sexual activity.  And the courts, all over the country, declined to interpret Lawrence as protecting prostitution since Lawrence expressly stated that its holding did not involve claims related to prostitution.  See, e.g., State v. Thomas, 891 So. 2d 1233 (La. 2005);  United States v. Thompson, 458 F. Supp.2d 730 (N.D. Ind. 2006); State v. Romano, 155 P.3d 1102 (Haw. 2007); United States v. Palfrey, 499 F. Supp. 2d 34 (D.D.C. 2007); Lowe v. Swanson, 639 F. Supp. 2d 857 (N.D. Ohio 2009); Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012).

In 2015, ESP joined in the fun and filed its lawsuit claiming that California’s anti-prostitution law violated the Due Process Clause of the Fourteenth Amendment, the Freedom of Association guaranteed by the Fourteenth Amendment, the constitutional right to earn a living, and First Amendment freedom of speech.  880 F.3d 450.  The Ninth Circuit disagreed.

ESP relied heavily on Lawrence to assert its Fourteenth Amendment claims.  It argued that Lawrence should be interpreted as guaranteeing “consenting adults a fundamental liberty interest to engage in private sexual activity,” which would prohibit a state from outlawing commercial exchanges of such private sexual activity. Id. at 455-56.  It also argued that Lawrence overruled IDK.  Id. at 456.

The Ninth Circuit rejected ESP’s argument that consenting adults have a fundamental liberty interest to have sex with a prostitute.  The evidence made it clear that California has a strong, legitimate reason for criminalizing prostitution because: (1) prostitution is linked to sex trafficking; (2) “prostitution creates a climate conducive to violence against women;” (3) there is “a substantial link between prostitution and illegal drug use;” and (4) “prostitution is linked to the transmission of AIDS and other sexual transmitted diseases.”  Id. at 458.

The Ninth Circuit also rejected ESP’s argument that the freedom of intimate association guaranteed by the Due Process Clause extends to commercial relationships with prostitutes.  Finding that Lawrence did not overrule IDK, the Ninth Circuit applied IDK to reject this claim.  Id. at 458-59.

Next, the Ninth Circuit rejected ESP’s argument that California’s anti-prostitution laws violate the Fourteenth Amendment’s right to earn a living.  Because Lawrence specifically stated it did not encompass prostitution, ESP failed to provide any law which supported a protected employment right in prostitution.  Since California’s laws applied to equally anyone and everyone, the law withstood constitutional scrutiny.  Id. at 459.

Finally, the Ninth Circuit rejected ESP’s claim that the solicitation of commercial sex is protected commercial speech under the First Amendment.  The First Amendment has never protected “commercially motivated speech that involved unlawful activity.”  Id. at 460.

Why ESP Matters to the 98% of the Population That Doesn’t Solicit Prostitutes

The evolution of our constitutional right of intimate association is a fascinating one in our nation’s history.  It is the basis upon which women have been guaranteed the right to use birth control and to obtain abortions.  Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973).  As you read above, it is the basis upon which same sex relationships and marriage have been protected.  And, as ESP demonstrates, it is probably going to continue being the basis on which people advocate for legalization of commercial sex.  Whether that will happen, I do not know.  But, as Justice Kennedy observed: “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”  Lawrence, 539 U.S. at 579.

Your Right to Use Medical Marijuana is not a Constitutionally Protected Liberty Interest (Duh)

Unless you live under a rock, you know that Nevada has legalized marijuana use.  But, as some poor anonymous guy named “John Doe” (I’ll call him Todd) recently learned, the fact that you can use marijuana does not mean that you have a protected liberty interest in your use of it.  In Doe v. State, 133 Nev., Adv. Op. 93 (Dec. 7, 2017), the Nevada Supreme Court ruled that a person does not have a constitutionally protected liberty interest in their right to use medical marijuana, and that Nevada’s medical marijuana registry laws do not violate due process, the Equal Protection Clause, or a registrant’s Fifth Amendment right against self-incrimination.

I just used a whole lot of fancy legal jargon that probably makes no sense to 90% of you.  Here’s what you need to know to understand what I just said:

The Right to Use Medical Marijuana is Found in Nevada’s State Constitution.

In 2000, Nevada amended its State Constitution to allow for “medical marijuana” use, i.e., marijuana use prescribed by a physician for treatment of various illnesses.  Nev. Const. art. 4, § 38(1).  So, technically Todd was correct when he argued that his right to use medical marijuana is a “constitutional right.”

But that right has limits.  To use medical marijuana, Todd needs to (1) get a written authorization from his physician, and (2) register with the Division of Public and Behavioral Health of the Department of Health and Human Services to get a medical marijuana registered user card.  The registration process has application and registry fees.

Todd sued the State of Nevada, and argued that the medical marijuana registry and its fees violated three of his constitutional rights:  (1) his right to due process, (2) his right to equal protection of the laws, and (3) his right against self-incrimination.

Due Process, In a Nutshell, Is Your Right to Have Fundamental Aspects of Your Life Free From Government Interference.

Both the Nevada and the United States Constitutions have a “due process” clause which prohibits the State from interfering with a person’s “life, liberty or property without due process of law.”  U.S. Const. amend. XIV, § 1; Nev. Const. art. 1, § 8(5).  Generally, “due process of law” means that you are given notice and an opportunity to be heard before the government comes in and takes something from you.  But, in a long series of complicated United States Supreme Court opinions that I am not going to touch with a ten-foot pole here, the concept of “due process” has gradually been expanded to include protecting from government interference certain rights which have been viewed “inalienable,” or “fundamental” – i.e., really, really important to people.

For example, one of the most recent “fundamental” rights that has been recognized as being protected by the due process clause is the right for same-sex couples to marry.  Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

The Nevada Supreme Court rejected Todd’s argument that his right to use medical marijuana is a similar protected “liberty” interest.  The Court reasoned that right to use medical marijuana is not something that has been so deeply rooted in Nevada’s history that interfering with it would uproot expectations Nevada citizens have long held.

If your response to this is “yeah, well, duh Todd,” then you get it.  If that is not your response, consider these facts:  Medical marijuana use has only been legal in Nevada for 17 years, and is still banned under federal law and in 22 other states.  And while same-sex marriage may have only been legal in a handful of states prior to the Obergefell decision, different-sex marriage has been legal for centuries.  In contrast, marijuana use, by any person, has traditionally been illegal.

Equal Protection Is Your Right to Have Laws Apply to You In the Same Way They Apply to Others

Under the Fourteenth Amendment to the United States Constitution, Nevada is prohibited from denying any citizen “equal protection of the laws.”  U.S. Const. amend. XIV, §1.  “Equal protection” is the concept that a law has to apply to Todd the same way it would apply to, say, Sally.  Todd argued that the medical marijuana registry violates equal protection because he has to register with the state of Nevada to use medical marijuana to treat his illness, whereas Sally does not have to register to use a prescription medication to treat the same illness.

As with every other area of law, equal protection has its limits.  A law that applies to citizens unequally is still constitutionally valid if there is a rational relationship between the way the law is applied and the government purpose behind the law.  We call this “rational basis” review, and “rational basis review” applies if the “interest” invaded is not a protected liberty interest (which, as just explained, the right to use medical marijuana is not).

Nevada clearly has a rational basis for the medical marijuana registry.  In 2000, recreational marijuana use was still illegal in Nevada.  Thus, the registry was a way to (1) aid government officials in ensuring that the medical marijuana laws were not abused, and (2) protect medical marijuana users from criminal punishment by giving police officers a super easy way to verify that the user could legally possess the marijuana.  And, as will be discussed below, medical and recreational marijuana use still have important differences.  Accordingly, the Nevada Supreme Court rejected Todd’s argument that he was denied “equal protection of the law” by being required to register for medical marijuana use because there is a legitimate, rational state purpose for having the registry in place.

You Probably Know What the Fifth Amendment Is, But I’ll Still Talk About It

Under the Fifth Amendment of the United States Constitution, people cannot be compelled to say anything which may be held against them in a criminal court of law.  U.S. Const. amend. V.  Nevada’s Constitution also sets forth a constitutional privilege against self-incrimination.  Nev. Const. art. 1, § 8(1).   Todd argued that Nevada’s medical marijuana registry violated his right against self-incrimination because he had to admit, in writing, that he would be using medical marijuana in violation of federal law.

Todd kind of has a point.  The federal government’s position on the states’ legalization of marijuana can be summed up as this:

“Okay, States you go do your thing and we don’t really care what you do because we are busy with much more important stuff.  But if the day ever comes where we decide to start caring, watch out because we might come after you.  But it’s good, you’re good, we’re all good…for now.”

(And THAT is why you have to pay for marijuana in cash, because any bank that operates across state lines (i.e., falls within the federal government’s authority) is justifiably super apprehensive about the future of this whole industry).

The Nevada Supreme Court rejected Todd’s argument because Todd is not required to register for medical marijuana use.  The Nevada Supreme Court’s reasoning was basically this:  Todd, you are the one choosing to treat your illness with marijuana.  Nevada does not require you to smoke weed.  You can pop a Xanax Todd, and never have to register anywhere.   And if you do apply to for a registry card, and don’t complete the process or are denied, there are no civil or criminal repercussions against you because there is no proof from your registration application, alone, that you ever actually used or possessed medical marijuana.   Therefore, Todd, you do not self-incriminate yourself by filling out a piece of paper that states you may or may not at some unspecified point in the future possibly possess medical marijuana.

How Does All of This Fit Into Recreational Marijuana Use? 

In 2017, Nevada legalized the use of recreational marijuana (i.e., use for any purpose) for persons over the age of 21.  NRS 453D.020(1).  Unlike medical marijuana, our right to use recreational marijuana is not a constitutional right, since we did not amend our constitution to provide for it.  This is just one of the many differences between medical and recreational marijuana use.

Another is that Nevada does not require registration for recreational marijuana use.  You can let that breath out that you’ve been holding.

Also, the amount of marijuana that can be legally possessed is different.  Medical marijuana registry card holders can possess up to 2 ½ ounces of marijuana, 12 marijuana plants, and however many edibles either equate to 2 ½ ounces of marijuana, provided the total amount of THC in the edibles does not exceed 10,000 milligrams within a 14-day period.  NRS 453A.200(b)(3); NAC 453A.704.  Recreational marijuana users can only possess 1 ounce of marijuana, and 6 marijuana plants at any one time.  NRS 453D.110.

Please Do Not Contact Me With Marijuana Questions

Because I am a lawyer, I must include the following disclaimer: This post is not intended to provide legal advice to you on your rights to use marijuana in Nevada or under federal law.  Also, I do not know if Todd is actually John Doe’s name.

This post is solely intended to tell you the sad story of some guy who might be named Todd (but is probably named something else) who just really wanted to consume a lot of marijuana without having to tell anyone about it.