Joseph J. Fischel in the Boston Review:
Do laws criminalizing prostitution violate the Constitution? Probably. Until recently, such a proposition would have been as absurd as suggesting, in 1972, that the Constitution guaranteed a right to same-sex marriage. But cultural winds shift, social and sexual norms evolve, and political movements shape law.
A variety of reinforcing factors have, of late, changed how sex workers are popularly perceived. The collapse of the pornographic film industry shuttled many former and would-be adult-film actors into escorting and webcamming, a process accelerated by the embrace of the latter in the pandemic-era gig economy. Meanwhile, multiple state and municipal bills have sought to decriminalize sex work, an effort shaped in part by the newfound political clout of an ascendant sex workers’ rights movement. This is a significant shift from the tendency, until quite recently, for sex workers to be thought of as drug-addled moral degenerates or trafficked victims. Prostitutes are increasingly cognizable as people, people who ought to have the same opportunities as everyone else: to live, labor, and love free from violence.
Despite these meaningful shifts, in most United Sates courts today, a constitutional challenge to a state’s anti-prostitution law would still be dead on arrival. However, the argument for the constitutional protection of sex work is worth expounding, not only in the hopes of appealing to a future judiciary, but also in the service of a more expansive politics of sexual freedom.
More here.