If you wanted to attack the constitutionality of prostitution, then I would think your best line of attack would be the cases and reasoning that have invalidated criminalizing homosexuality and are now being used to argue that prohibition of gay marriage is unconstitutional. My con law is very rusty--I know it's based on the 14th amendment but not sure which clause(s) (due process? equal protection? privileges and immunities?).
Originally Posted by Shackleton
The origin of a constitutional right to privacy is found in
Griswold v. Connecticut, 381 U.S. 479 (1965), the case that struck down a state prohibition on contraception for married couples. The Court (led by Justice Douglas) held that the First through the Eighth Amendments have "penumbras" (i.e., shadows) that create "zones of privacy" that come to life through the Ninth Amendment (which states, "The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."). Other Justices believed that the right to priacy stems from the First Amendment (made applicable to the states through the Due Process Clause of the Fourteenth Amendment).
A convicted prostitute made the privacy argument in
Tisdale v. State, 640 S.W.2d 409 (Tex. App.--San Antonio 1983, pet. ref.d). The court dismissed the argument out of hand, holding: "Answering the right of privacy argument, we hold that enactment of this statute to protect the health, safety and welfare of the population at large was clearly within the province and discretion of the legislature."
Id. at 413-14.
Just an aside about the nature of this thread and what I see as the purpose of this forum: I know we all like to debate what the law should be but, in my opinion, this is not the place to do it. This forum exists, in my view, to provide a ready reference for providers and hobbyists to learn what the law IS, not to debate what the law SHOULD BE. (Note at the top of the forum is stated: "Post your legal questions here.") In this forum, we quote statutes and the opinions of courts interpreting those statutes so we can better gauge the risks of engaging in certain behaviors and avoid contact with LE. Making arguments on what the law should be certainly has its purpose, but that purpose is unrelated to the "what" of this forum -- it's more a "what if" purpose. At best, such arguments muddy the waters. At worst, they mislead the reader. I think such arguments belong elsewhere on this board, such as in one of the general discussion forums.
