Constitutional prostitution: a California lawsuit could bring sex work out into the open.

• Author: Weissmueller, Zach
• Position: Reason TV

"SOMEWHERE, some document says that I'm entitled to the pursuit of happiness," says Bacchus, a burly Oakland, California, man sporting a white beard and a wide grin that evoke the mythical character whose name he has appropriated. "I can't think of many things that make most people happier than sex."

When Bacchus was an infant, a surgery intended to repair a birth defect instead left his penis mangled, tiny, and nerve-damaged. When he reached puberty, he realized he was unable to achieve climax without hours of stimulation. His condition crippled his ability to pursue romantic and sexual relationships.

As an adult, he consulted a sex therapist, who prescribed him a "sex surrogate!' The surrogate told him what he'd always known: He had a physical problem that required the skill and patience of a professional. Unwilling to jump through the expensive hoops required to continue using the services of the surrogate, Bacchus turned to another type of sex worker: prostitutes.

Prostitution is, of course, illegal in California, just as it is in every other place in America aside from a few rural Nevada counties. But a new lawsuit naming California's attorney general and several mayors as defendants claims that prohibitions against sex work, while nearly ubiquitous, are unconstitutional.

"We don't have equal protection under the law," says Maxine Doogan, a working prostitute and president of the Erotic Service Provider Legal, Education, and Research Project (ESPLER), the group behind the lawsuit.

The plaintiffs in the case include several unnamed prostitutes living in the San Francisco Bay Area, as well as an anonymous customer, or "John," who much like Bacchus says he uses prostitutes because he has a disability and can't get sexual relief any other way.

ESPLER's case rests upon three main constitutional issues: a right to "sexual privacy" protected by the 14th Amendment, a due process right to earn a living, and the First Amendment's guarantee of freedom of association.

"A very, very broad anti-prostitution statute violates a constitutional right to privacy," says Jerald Mosley, a lawyer who served as a deputy supervising attorney general under California Attorney General Kamala Harris, one of the defendants named in ESPLER's suit. Mosley is now arguing against his old boss in favor of decriminalizing prostitution.

The key legal precedent for ESPLER's case is Lawrence v. Texas, the 2003 case in which the U.S. Supreme Court struck down an anti-sodomy...