Prof. Michael Stokes Paulsen at Balkinization uses the Spitzer scandal to attack Lawrence v. Texas. It’s an interesting legal amusement. It’s also, I think, a plausible extension of the theory of Lawrence v. Texas, albeit a highly unlikely result of making that argument.
For my part, I fail to see what exactly was so objectionable about either the basic reasoning of Lawrence v. Texas or its result. Prof. Paulsen is particularly upset (as are many legal conservatives) at Justice Kennedy’s opening statement of the issue:
But isn’t all of that true already? Hasn’t all of that been a clearly understood line of Constitutional law since Griswold v. Connecticut, a case from 1965? I can see using that line of reasoning without irony or snicker if one were to offer a Constitutional challenge to a prostitution law.
With that said, I think such a law would wind up being upheld despite this Constitutional challenge. Prostitution carries undesirable “secondary effect” such as crimes of violence and (when done carelessly) the spread of venereal diseases. Otherwise-protected conduct can be regulated to limit such “secondary effects,” City of Renton v. Playtime Theater (1985) 475 U.S. 41. Consequently, the state has an interest in its regulation — and one form of regulation is criminalization. It may not be the best form of regulation from a policy perspective, and it certainly is not very principled for a society that claims to value freedom to criminalize this kind of conduct. But within the limits of state power defined by the Constitution, it doesn’t seem like it would be a difficult call to uphold a challenge to a prostitution law despite the holding of Lawrence v. Texas.
What the law should be and what it is are often very different things.
