Tag Archives: brothel

Defending the Decriminalization of Brothels in Arizona

The Superbowl will come to Arizona in February 2015, but decriminalized brothels will most likely not.  At least, that is what politicians across Arizona are saying after brothel expert, Dennis Hof owner of the Moonlite Bunny Ranch in Carson City, Nevada, proposed the idea of setting up a brothel in Arizona before the Super Bowl.

Hof’s a businessman, who is an interested party to be sure, motivated in part by money.  But there is some altruism to what he is proposing.

Opening up brothels would allow Arizona to regulate the business in several aspects.  The state could require condoms usage and STD tests in brothels that would arguably lower the transmission of sexually transmitted diseases.  The state would know who voluntarily entered into an agreement for sex for money, and who did not, a step toward rooting out human sex trafficking in Arizona.  The state would be able to regulate that all sex workers are of age, and better prohibit minors from participating.  Registered sex workers would not fear going to the police if they are physically assaulted, raped, or stiffed (these are real secondary effects of illegal prostitution that often go unreported).

In this article I will look at what it would take to fulfill Hof’s idea of opening up a legal brothels in Arizona. I have analyzed what constitutes a brothel in Arizona in a previous post.

Prostitution in Arizona

I probably have to state the obvious: prostitution occurs in Arizona even though it is currently illegal.  Yep.  I hate to burst anyone’s bubble, but prostitution still occurs despite it’s illegality.

  • A two day sting in Tempe netted 16 arrests for prostitution and crimes related to sex trafficking in July 2014.  AzCentral
  • A Glendale police officer was arrested in a prostitution sting in June 2014. AzCentral
  • A sweep of Arizona’s truck stops led to the recovery of five children and 52 adults, all of whom were victims of commercial sex trafficking, June 2014.  AzCentral
  • Mesa Police arrested four men in an undercover child prostitution sting. AzCentral
  • Police alleged a gentleman’s club in west Phoenix was a front for prostitution, May 2014. MyFoxPhoenix
  • Six men were arrested in a Tempe underage prostitution sting, April 2014.  MyFoxPhoenix
  • Tempe police posing as 15 and 16 year-old girls arrested 30 people in a prostitution sting, April 2014. AzFamily

Okay, these were the stories in the news that are recent, and I could quickly find.  All of these stories were reported within the last couple of months, so I think it is fair to say that prostitution, especially child prostitution is still a large problem in Arizona.

The Super Bowl will most likely make human smuggling, and child prostitution worse, exponentially worse. According to Forbes, 10,000 prostitutes were brought to Miami for the 2010 Super Bowl.

Arizona has prostitution industry whether it is legal or illegal.

Human trafficking v. Prostitution

“Human trafficking is a modern-day manifestation of the slave trade,” said then U.S. Attorney, Daniel G. Knauss in a report on human trafficking in the greater phoenix area published in 2007.

First, human trafficking is not the same as human smuggling.  Human trafficking is an offense against a person and does not require the crossing of international borders. Human smuggling is transporting individuals across the United States border to enter the country illegally.

Human sex trafficking is simply the act of forcibly moving an individual to a location for the purpose for involuntary sexual acts. An example of human trafficking could be, a person from Nebraska may be forcibly transported to Arizona for the Super Bowl to perform sex work.  Human trafficking can occur completely within the borders of the United States.  However, individuals can be smuggled into the United States and then be trafficked.

Second, for the purposes of the discussion in this blog post, prostitution is the performance of sexual acts for money between consenting adults. It is really important to note when I say prostitution I am talking about a voluntary act between two adults who knowingly and voluntarily agree to have sex for money. Minors cannot consent to have sex for money — it is that simple.  Any sort of force or coercion used to gain the consent of an individual to have sexy for money also is not prostitution.

Historical fact: when Arizona entered statehood in 1912 one of the original laws on its books prohibited human trafficking for sex work.  Unfortunately, it is still a problem in Arizona today, more than 100 years later.

Options to Decriminalize Prostitution/Brothels in Arizona

The first and easiest way to decriminalize prostitution/brothels, would be to legislatively modify or repeal all laws criminalizing prostitution.  Instead of going through the legislature, if Hof or some other well-funded person or organization mobilized a movement they could potentially pass a citizen referendum.  That is what happened with the decriminalization of marijuana in Colorado and Washington.

Either way, here is a start of the laws that would need work:

Many of the statutes in Chapter 32 Prostitution, of Title 13 of the Arizona Criminal Code would have to be repealed, including but not limited to:

  • Ariz. Rev. Stat. § 13-3203 – Procuring or placing persons in a house of prostitution.
    • This would have to be narrowed to include only those who are forcibly placed in a house of prostitution.
  • Ariz. Rev. Stat. § 13-3204 – Receiving earnings of a prostitute.
    • This would have to be repealed entirely.  Prostitute’s earnings would not only be legal, but perhaps even taxable.
  • Ariz. Rev. Stat. § 13-3208 – Keeping or residing in house of prostitution; employment in prostitution.
    • The repeal of this statute would decriminalize brothels.
  • Ariz. Rev. Stat. § 13-3209 – Pandering; methods; classification
    • This would have to be repealed entirely to allow for prostitution and brothels.
  • Ariz. Rev. Stat. § 13-3211 – Definitions
    • Would have to repeal the following definitions: prostitution, prostitution enterprise, and probably sadomasochistic abuse, just to be on the safe side.
      • Sadomasochistic abuse – “means flagellation or torture by or on a person who is nude or clad in undergarments or in revealing or bizarre costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.”
  • Ariz. Rev. Stat. § 13-3214 – Prostitution; classification
    • Would have to repeal most of the statute.  Some of it deals with sex trafficking which could remain in tact.

Also the definition of racketeering would need to be changed.

  • Ariz. Rev. Stat. § 13-3214(D)(4)(b)(xxi),(xxiii) – includes both obscenity and prostitution as offenses chargeable under racketeering.
    • The racketeering statute could remain in tact.  The subsections XXI relating to obscenity and XXIII relating to prostitution could easily be removed and the rest of the statute would be able to continue to function as normal.

In addition to repealing and modifying the laws, new laws should be enacted to regulate and tax the industry.  This isn’t as difficult as it may seem.  Some of the framework is already in place.  The city of Phoenix already licenses escort businesses.  An escort is defined by the city as:

Any person who for monetary consideration in the form of a fee, commission or salary, is held out to the public as available for hire to consort with or to accompany another or others to social affairs, places of amusement or entertainment, within any place of public resort, or within any private quarters. It shall be unlawful for any person to work or perform services as a sexually oriented escort.

— Phoenix Mun. Code § 10-87(E).

The second option would be to challenge the laws judicially.  This would be an enormous uphill battle, but perhaps there is some hope.  In a future post, I will look at what it would take to challenge the Arizona prostitution and brothel laws through the state courts.

 

The Free Exercise of Religion in Arizona – Part 1

The Free Exercise of Religion in Arizona:
This is blog post is Part I examines constitutional theory.
Part II examines Arizona’s Constitution and statutes.
Part III examines Arizona’s case law and tries to summarize discussion.

In a free government, the security for civil rights must be the same, as that for religious rights.  It consists, in the one case, in the multiplicity of interests, and in the other, in the multiplicity of sects.

— Joseph Story, Frmr. Assoc. Justice of the United States Supreme Court, Commentaries on Constitution of the United States, § 474 (quoting James Madison, Federalist Papers, #51 (1788)).

Religious freedom is a hot topic — both nationally and in Arizona.  This term the United States Supreme Court will hear arguments to what extent, if any, corporations have the right to free exercise of religion.  Locally, several religious oriented bills were proposed by the state legislature.

Furthermore this summer, a trial will start in Maricopa County, that will find if sex is a valid exercise of religion.  The Phoenix Goddess Temple claims to combine spirituality and sexuality to help the people who need love and guidance.  It is an officially recognized Oklevueha Native American Church (see more in the Arizona section below). Officials in Maricopa County shut down and arrested members claiming it is nothing more than a brothel.  Members of the temple say they are a federally recognized church and provide important spiritual services to the community.

This blog post will look at federal and state law and try to make sense of what the scope of religious organizations exercises under the United States Constitution and Arizona Constitution (Arizona will be covered in Part 2, the next blog post).

Free Exercise of Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

— U.S. Const. amend. I.

The free exercise of religion is a cornerstone of our democracy.  It is enshrined in the First Amendment, the Religious Freedoms Restoration Act 1993, 42 U.S.C. § 2000bb(1), among other statutes and protections on the federal level.  At the state level in two different parts of the Arizona Constitution protect religious freedoms, as well as state and local laws.  RFRA prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government demonstrates that application of the burden to the person represents the least restrictive means of advancing a compelling interest.

Even our elected Congressmen (House and Senate), when taking their oaths of office as prescribed by the Constitution are reminded that religion does not factor their jobs.  “But no religious test shall ever be required, as a qualification to any office or public trust under the United States.” U.S. Const. art. II, § 1.

In fact, the Supreme Court noted the free exercise of religion is so entrenched “that few violations are recorded in our opinions.” Church of Lukumi Babalu Aye v. City of Hialeah, 508, U.S. 520, 523 (1993).

Let’s look at the two most recent United States Supreme Court opinions that examine when the free exercise of religion, is considered by some, to have harmful effects in society.

Church of Lukumi Babalu Aye v. City of Hialeah, 1993

Plaintiffs practiced the religion Santeria.  The basis of Santeria is the “personal relation with the orishas, and one of the principal forms of devotion is animal sacrifice.”  Church of Lukumi Babalu Aye v. City of Hialeah, 508, U.S. 520, 524 (1993).  Orishas depend on sacrifice for their survival.  “Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during annual celebrations.”  Id. at 525. The animals are killed by cutting the cartoid artery in the neck.

The Church of Lukumi Babalu registered with the state of Florida as a not-for-profit corporation and leased land in the city of Hialeah, Florida with the intent of building a place of worship.  It appears from judicial notice that the Church obtained all the necessary licensing, inspection and zoning approvals.  Id. at 526.

Community members began to complain about the planned church, so much so, the city council held an emergency meeting to address the topic.  The council passed several statutes incorporating and adding to the state of Florida’s animal cruelty laws.  Additional laws that Hialeah passed included a ban on “ritualistic animal sacrifices.”  The church filed suit alleging a violation of the Free Exercise clause, the church asked for an injunction and for declaratory relief.

The district court found the city had four compelling interests: 1.animal sacrifices present a substantial health risk, both to participants and the general public; 2. emotional injury to children who witness the sacrifice of animals; 3. protecting animals from cruel and unnecessary killing; 4. restricting the slaughter or sacrifice of animals to areas zoned for slaughterhouse use. Id. at 529-30.  Balancing the interests of the church and the interests of the city, the District court found the compelling governmental interests justified an absolute prohibition on ritual sacrifices.

The Supreme Court disagreed with the district court’s analysis.

Although the practice of animal sacrifice may seem abhorrent to some, ‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.’

Id. at 531 (quoting Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981).

The Supreme Court notes that if the object of the law is to target a specific group, religion or belief then the law is not neutral then only a compelling governmental interest will override the liberty interest.  The Court gives tips on how to determine if a law is neutral or not: 1. the law it must have facial neutrality, to not discriminate in the plain language of the law (facial neutrality is not determinative); and 2. the law’s application cannot subtly depart from neutrality.

Explaining the second part of the test the court notes: “[t]he Free Exercise Clause protects against governmental hostility which is masked as well as overt. ‘The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.'” Id. at 534 (quoting Walz v. Tax Comm’n of New York City, 397 U.S. 664, 696 (1970)(Harlan, J., concurring)).

The Court importantly documents that religious liberty interests are impacted both by the legislative and executive branches.   The two different branches have different functions, writing the law and applying the law, and tasks can be performed in neutral and non-neutral manners.  Here, it seems the court accepts the different branches interests and interpretations of the law, but the Court will scrutinize the actions of both branches because of their independent roles.

Once it is decided if a law is neutral or not then different levels of scrutiny will apply.  If it is decided the law is not neutral or it impacts a particular group or class of people then only a compelling governmental interest that is narrowly tailored to address the problem will be enough to overcome targeted religious liberty infringement.

The Court unanimously found the laws banning animal sacrifice to be unconstitutional (there was some disagreement as to the test to use).

* It is important to note that Religious Freedoms Restoration Act (RFRA) 42 U.S.C. § 2000bb was made into law in Nov. 1993, while this case was decided months prior in June 1993.  RFRA was not available as a guidepost when this opinion was written.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 2006

A religious organization uses a sacramental tea in its worship that contains a hallucinogen prohibited by the Controlled Substances Act (CSA) Title 21 U.S.C. § 801.  At communion, worshippers drink hoasca, made from two plants in the Amazon region of South America.  “One of the plants, psychotria viridis, contains dimethyltryptamine (DMT), a hallucinogen whose effects are enhanced by alkaloids from the other plant, banisteriopsiscaapi.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 425 (2006). DMT is listed as a Schedule I drug, which means that it has a high potential for abuse, has no medicinal value, and cannot be used safely even under a doctor’s supervision.

Customs officials intercepted a shipment of hoasca (sacramental tea) to the church.  Records indicated that in addition to the three drums in the current shipment, fourteen drums had previously been shipped to the church.  The hoasca was seized and the church was threatened with criminal prosecution.   The church filed suit against the United States for an injunction and for a declaratory opinion as to the legality of the hoasca during worship.

Congress recognized that laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,and legislated the compelling interest test as the means for the courts to strike sensible balances between religious liberty and competing prior governmental interests.

Id. at 439 (internal quotation marks omitted).

The government challenged the the legality of hoasca even though they conceded it substantially burden the church’s free exercise of religion.  Despite substantially burdening religion, the government argued the ban on hoasca was the least restrictive means of advancing three governmental interests: “protecting the health and safety of [church] members, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances.” Id. at 426.

Both sides presented evidence about the effects of hoasca.  The government contended the hallucinogen can cause psychotic reactions, cardiac irregularities, and adverse drug interactions.  The church contended that how the hoasca was used during worship it minimized the health risks cited by the government.  The district court found that the evidence of health risks was equal.  Neither the government’s nor the church’s evidence was more compelling.  The evidence on diversion was also very close.  The district court granted the injunction and told the government it had to show harm to church members or that the levels of DMT increased to dangerous levels.

The Supreme Court held the government never showed a compelling reason for limiting religious exercise that the Religious Freedom Restoration Act 42 U.S.C. § 2000bb required. Even from the district court level, the government never contested that it limited freedoms, it just said that it’s interests overrode any liberty interests of the church.

The Supreme Court noted that while DMT is dangerous and correctly classified as a Schedule I drug, Congress never considered its usage in a tea used during religious worship.  The opinion compares DMT to peyote when used for religious purposes by Native Americans and says it would be unfair to make an exception for peyote and not for DMT during religious worship.  Id. at 433. “The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA.” Id. at 434.

The Court gave short shrift to the argument about potentially violating the international treaty because hoasca is not a named substance to be banned.

Again a unanimous Court (Justice Alito recused himself) found the prohibition of hoasca to be unconstitutional.

Conclusion

The Untied States Constitution allows one to believe in whatever one wants, even if it includes animal sacrifice and hallucinogenic teas.

Once it is established that activity is religious in nature, it is the Government’s job to prove why the activity should not be permitted.  There may be restrictions on non-neutral speech as long as there is a compelling governmental interest and the law is narrowly tailored for the least restrictive means.

It is interesting to note that both of these cases are unanimous decisions.  The Court is sending a strong message with these two cases that the government must have a really strong reason to restrict religious freedoms.  Perhaps what is most telling is the Court was even willing to make an exception to Schedule I drugs on  the Controlled Substances Act.  Schedule I drugs, by Congressional definition have a high potential for abuse, has no medicinal value, and cannot be used safely even under a doctor’s supervision.  In other words, Congress said there is no redeeming value at all to Schedule I drugs.  However, the Supreme Court said that was too broad and if applied within the historical practices of the Church the government did not have a strong enough interest to restrict the religious liberty.

If religious liberties will allow activities as dangerous as consuming Schedule I drugs and performing animal sacrifices, it is quite possible that if a church believes the performance of sex is part of spirituality then that may be permitted.  Sexual conduct may be permitted, even if money is exchanged at some point because all religious institutions have expenses of some sort and must pay for those expenses. See Catholicism and offertories.  Restricting a church’s religious freedoms and the ability to practice spirituality and sexuality together because a payment is made to the Church could be seen as a non-neutral restriction of speech.

I will continue my analysis in the next post where I will also discuss Arizona law and it’s impact on the free exercise of religion.

Part II: Arizona’s protections for the Free Exercise of Religion.
Part III: Arizona’s case law and a summary of the whole analysis.

 

What Constitutes a Brothel in Arizona?

A legal argument is brewing in Arizona state courts as to what constitutes a brothel because of the Phoenix Goddess Temple trial currently being argued.

Let me back up and give you the background. Back in 2011 police raided a building in midtown Phoenix, Arizona because it was a suspected brothel.  A brothel is just another way of saying that it was a house of prostitution.  Police said they found advertisements on the website Backpage.com offering sex in exchange for donations.

Prosecutors say the Goddess Temple was a front for prostitution and masqueraded as a church.  Basically, prosecutors say there is a litmus test for prostitution: if money was exchanged for sex.

The women who worked in the Goddess Temple claimed the entire organization, including the sex, was for religious purposes.  “It was about women being the teachers, the leaders, the guides and men saying ‘I want to be with a woman who is in her power.'”   Tracy Elise, Goddess Temple’s ‘Mystic Mother,’ said in an a videotaped interview with Channel 12 news, starting at 1:25 of the video.

Tracy Elise seems to be making two basic defenses: that donations are not a fee arrangement according to contractual law principles, and she has a First Amendment right to practice her religious how she sees fit.

In court this past week, Elise also tried to distinguish the Goddess Temple from a brothel by the amount of revenue.  Elise questioned Dennis Hof, the owner of seven brothels and is a “brothel expert” at the trial, if his brothels could be financially viable on a donation system.  He quipped that he would have to hire probably a 5,000 more prostitutes at each location to make up for the lost revenue.  The suggestion Dennis Hof is making is that a brothel is a business.  And like any other business, it fees it charges its customers to pay for operating expenses and to make a profit.  If the organization is not concerned with making a profit, then perhaps it is not a brothel.

If money is not the main motive (it is some kind of motive because the Goddess’ solicited donations) does that make it a brothel?  And does the religious / First Amendment defense hold any water?

Brothel and Prostitution Law in Arizona

Let’s look at what laws the prosecution is saying Tracy Elise broke related to a brothel / prostitution.  According to the Maricopa County Superior Court online docket, Tracy Elise is charged with violating Ariz. R. Stat. § § 13-3208, 13-3209, 13-3214 (to just name the laws related to prostitution).  All three of these laws fall under the Prostitution chapter of the Criminal Code for the state of Arizona.

Ariz. Rev. Stat § 13-3208 – is titled “Keeping or Residing in a House of Prostitution”  In this article I will just call it Arizona’s Brothel Law.

A. A person who knowingly is an employee at a house of prostitution or prostitution enterprise is guilty of a class 1 misdemeanor.

B. A person who knowingly operates or maintains a house of prostitution or prostitution enterprise is guilty of a class 5 felony.

Ariz. R. Stat. § 13-3209 – Pandering.

A person is guilty of a class 5 felony who knowingly:

1. Places any person in the charge or custody of any other person for purposes of prostitution.

2. Places any person in a house of prostitution with the intent that such person lead a life of prostitution.

3. Compels, induces or encourages any person to reside with that person, or with any other person, for the purpose of prostitution.

4. Compels, induces or encourages any person to lead a life of prostitution.

Ariz. R. Stat. § 13-3214 – Prostitution Classifications.

A. It is unlawful for a person to knowingly engage in prostitution.

Well, it appears the Arizona legislature likes tautological definitions.  Instead of providing a definition of what a house of prostitution or a brothel is, it just uses the word being defined in the definition.  As we will see next there is a definition statute for the Prostitution chapter of the Criminal Code for the state of Arizona that will provide some clarity.  However, on its face, these statutes are annoyingly vague.

Ariz. R. Stat. § 13-3211 – Prostitution Definitions.

2. “House of prostitution” means any building, structure or place that is used for the purpose of prostitution or lewdness or where acts of prostitution occur.

5. “Prostitution” means engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement with any person for money or any other valuable consideration.

Finally, there is some language that actually defines prostitution.  The Arizona Legislature again provides no help whatsoever in defining a brothel or house of prostitution.  It takes a lot for a law to be unconstitutionally vague, but these tautological definitions are pushing the envelope.

The definition of the act of prostitution is clearer.  The law says that there needs to be some kind of contract.  There needs to be “bargained for agreement” where going in each side knows they will get something they want.  The ‘John’ knows that he will receive sex and the ‘prostitute’ knows she/he will receive something of value (usually money).  So we know there needs to be some type of fee arrangement.

What is a Fee Arrangement?

The language in the Ariz. R. Stat. § 13-3211(5) suggests that the act of prostitution requires a contract for sex.  For a valid contract to occur three elements need to occur: offer, acceptance, and consideration (as expressly mentioned in the statute).  The only part in dispute in the Goddess Temple case is the consideration.

(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for
his promise and is given by the promisee in exchange for that promise.

— Restatement (Second) of Contracts § 71 (1981).

Consideration is the legal concept that each side gets something of value out of the agreement.  This principle distinguishes a contract and a promise, in its most basic form. As my Contracts Professor would like to say, “if I offer to take out the garbage for a friend” there really is not anything in it for the party taking out the trash, other than the good feeling of a cleaner area.  In a legal sense, one is not getting anything of value for taking out the trash, so there is not any consideration.

But the mere fact that the religious literature is ‘sold’ by itinerant preachers rather than ‘donated’ does not transform evangelism into a commercial enterprise. If it did, then the passing of the collection plate in church would make the church service a commercial project.

Murdock v. Com. of Pennsylvania, 319 U.S. 105, 111 (1943).

Similarly, Tracy Elise is saying that her announcement on Backpage.com is not the basis of a contract.  The Mystic Mother argues it is like passing around the collection plate at church, where a contract cannot occur because it is not clear if Tracy Elise will receive anything for her sexual services at all.  Donations by definition are not agreed upon.  The donee has control how much, if anything, is given.  This is similar to what Dennis Hof, the brothel expert, was saying at the trial.  A business has set fees for what it charges — that is part of consideration, which is not how the Goddess Temple operated.

There is one example in Arizona’s history of a fee arrangement for “prostitution” from the case State v. Taylor, 808 P.2d 314 (Ariz. App. Ct. 1990).  Where a theater offered an area where behind glass, patrons could watch live dancers fondle their own and others breasts and vaginas.  There the defendants worked under a strict fee arrangement with patrons.  The audience had to pay a pre-arranged, upfront fee of $20 per woman, and then a fee of four tokens per thirty seconds of performance time thereafter. The Taylor court found this to be a fee agreement.

The problem is that Taylor had pre-defined fees.  Going into the agreement both parties knew what they would receive.  The patrons of the theater would be able to watch a live sex show.  The theater and the dancers would receive payment upfront and in thirty second increments there after.  The Goddess Temple was not charging a cover fee at the door, nor were they asking for payment based on any time increments.  There is a big difference between what happened in Taylor and how the Goddess Temple conducted their services.

It is very likely that the Goddess Temple did not have a fee agreement as defined by Ariz. R. Stat. § 13-3211(5).

Religious Freedom for Sexual Acts

Whether Arizona’s statutes prohibiting prostitution infringed upon the Goddess Temple’s free exercise of religion is less clear.

The word religion is not defined in the Constitution.  To determine which religious freedoms are guaranteed, courts must look elsewhere. Often times courts will look to the pattern and practice of states currently and in the past.  Using this approach, they will often say ‘this is how we have always done it,’ — United States Supreme Court Justice Antonin Scalia is known for this way of thinking.

The common law does not provide much support.

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?

— Reynolds v. United States, 98 U.S. 145, 166 (1878).

Citizens are allowed to think whatever they want.  They may believe in one God, multiple Gods or no Gods and that is protected.  Although when one acts, even in the name of religion, it may violate the principles of government.  When the two conflict then there must be a determination of which is more important.

The restriction of the right to freely exercise religion has been held constitutional several times before: Reynolds v. United States, 98 U.S. 145, 166 (1878) (holding a statute banning bigamy constitutional); Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (holding a state can restrict a nine year old girl from selling newspapers on a street corner, even though her religion, Jehovah’s Witness, tells her to do so); Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223-24 (1963) (holding requiring schools to read bible verses daily is not protected by the First Amendment);Stone v. Graham, 449 U.S. 39, 41 (1980) (holding a requirement of posting the Ten Commandments in each school classroom is not protected by the First Amendment’s freedom of religion).

So even assuming the Goddess Temple is a recognized religion, it is not automatically protected by the freedom of religion — because sex is an act.

However, there is another constitutional argument that does not appear to be considered from what I have seen: the law is overbroad.  Legislation does infringe upon religious liberty must be narrowly tailored to achieve a compelling governmental interest.  State v. Taylor, 808 P.2d 314, 319 (Ariz. App. Ct. 1990) the court noted that Ariz. R. Stat. § 13-3211(5) is “broadly written.”  This suggests that the Court thought there may be exceptions to Arizona’s definition of prostitution on an overbreadth challenge.  However, the court said since neither party brought up the overbreadth of the statute they would not comment on it.  That is a pity, because if there is a chance that § 13-3211(5) is overbroad, I would love to hear a court’s thoughts on the rest of the prostitution chapter and its tautological definitions.

An overbreadth argument is a nuanced constitutional argument.  The complainant is saying that even if there is a compelling governmental interest that would require infringing upon my rights, Congress or the state legislature, needs to narrowly write the law in the least restrictive way possible in order to avoid if possible the loss of individual liberty.  This is basically arguing the legislative process was sloppy.

So there may be a chance the Goddess Temple can use the First Amendment’s Free Exercise clause of religion as a defense.

In addition to overbreadth, the United States Supreme Court may expand religious freedoms in the upcoming case Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013).

In any event, it will be interesting to see how the Phoenix Goddess Temple case plays out.

See my related article on what is free exercise of religion.