The question isn't so much of whether the behavior is emotionally
intimate, but whether it is sufficiently physically (or intellectually)
intimate or personal that a person ought to have a right to choose her partners
for such behavior. There are prostitutes legally working in Nevada, and of
course illegally working throughout the country. They might not view their
professional sex as emotionally intimate. But I would think that many of them
value greatly their right to decide whom to allow into their bodies -- and
that, if they do value it greatly, that is a right that the law must respect.
However blasé prostitutes might be about sex with the clients choose, I
see no justification for denying them the right to so choose.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, February 15, 2015 5:27 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: The racist prostitute hypothetical
>
> Dear All:
>
> This goes back in time a bit, but I have had a busy weekend and wanted to
> respond to those who wondered why I think the racist prostitute should be
> subject to anti-discrimination laws.
>
> One feature of several rights is that we do not allow people to commodify
> them,
> or at least commodify them in certain ways. So while people have the right to
> vote, and may choose when exercising the right to vote may vote only for
> persons of color (or white persons), we do not allow persons to sell their
> right to
> vote. We think the reason people ought to have a right to vote is justified
> by the
> same principle that supports forbidding the right to sell the vote.
>
> Consider sex. One reason we think persons have a right to certain sexual
> relationships is that we think government should not ban intimate
> relationships.
> One reason many people think prostitution should be banned is that intimacy is
> not the sort of good that should be bought and sold. But now imagine we live
> in
> a world in which people have no problem commodifying sex. The best reason
> for thinking this is that they do not regard commercial sex as intimate
> behavior.
> They regard sex as more akin to back rubs, and or ice cream, but of which are
> subject to anti-discrimination rights. But if people do not think commercial
> sex
> is intimate behavior than the main reason why we allow discrimination has been
> rejected.
>
> In short, my claim is that if sex is just business, then sex is not intimate,
> and only
> intimate relationships and actions should enjoy immunity for
> anti-discrimination
> rules.
>
> MAG
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