The state has tried to eliminate, regulate and exploit the oldest profession for centuries, and no one has come up with a lasting formula. But now the Ninth U.S. Circuit Court of Appeals in San Francisco has cleared the way for “prostitution activists” to proceed with a lawsuit in a lower court to overturn the California law banning the trade, and the suit may have constitutional consequences.
The plaintiffs — three former prostitutes, a prospective client and something called the Erotic Service Providers Legal, Educational and Research Project — argue the law violates the rights of the consenting to engage in sexual relations, even for profit.
Figuring out how a court will rule based on the remarks and questions of a single justice is a fool’s game, but the plaintiffs are getting a sympathetic hearing from one of the members of a three-judge panel, Carlos Bea, who went to the heart of what the plaintiffs are trying to accomplish. “Why,” he asked, “should it be illegal to sell something that it’s legal to give away?”
Indeed, prostitution is illegal nearly everywhere in the United States except for several rural counties close by cities in Nevada. No laws prohibiting prostitution have been honored so often in the breach. It’s up to the states to regulate prostitution; the Mann Act, a federal statute prohibiting transportation of women across a state line for an immoral purpose, regulates the practice as part of interstate commerce. The plaintiffs in the new case are in effect asking the federal courts to declare prostitution a constitutional right.
No one argues that prostitution isn’t popular. The National Institute of Justice estimates that 1 in 5 men have patronized a lady of the evening, and not always in the evening. Prostitutes have followed armies for centuries, sometimes regarded as threats to the health of the soldiers, on other occasions as necessary for morale of the troops.
It was ever thus. Washington’s Pennsylvania Avenue was a disreputable slum known as Murder Bay during the Civil War, home of killers, cutthroats and thieves and so many bordellos to serve the needs of the soldiers of Gen. Joseph Hooker’s Army of the Potomac that the avenue was mocked as Hooker’s Division, and the general and the licentious neighborhood gave prostitutes their popular name.
Many cities, while not legalizing the trade, have tried to put bordellos and prostitutes within certain neighborhoods to control the vice. Alderman Sidney Story of New Orleans wrote the ordinance in 1897 requiring prostitutes to work in a neighborhood on South Rampart Street and unwittingly gave his name to Storyville, where jazz musicians prospered along with the ladies, and its 200 brothels and 1,500 prostitutes contributed to the city’s reputation for jazz and bawdy good times.
Memphis had such a reputation for blues and bawds that the U.S. government made cleaning up the vice a condition for locating a naval air station there on the eve of World War II. The city, ruled by a boss named Ed Crump, enthusiastically complied. Memphis is famous now for music, barbecue and its churches.
Many cities have used the need to control disease and crime to regulate the commercial exploitation of women. There’s nothing compassionate or romantic about this particular vice. It breeds crime and disease. The happy hooker is a myth, as any hooker could tell you. But if the plaintiffs want to make radical change, they’ve gone to the right state, and the right courts.
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