Moral Sex

City Hall Puritans crack down on sex businesses. Expect the courts to decide if the new laws are constitutional.

--invocation to December 9 Phoenix City Council meeting, delivered by Pastor Phil McKeown of the North Village Baptist Church

One of the longest, best-attended and stormiest Phoenix City Council meetings of 1998 concluded December 9 after nearly four hours.

Not on the agenda were domestic violence, gangs, slumlords, crystal meth, the homeless or any other pressing woes. Instead of the usual talk about budgets, appointments and proclamations, the council on this day considered breasts, butts and nipples.

The topic at hand was sex--"sexually oriented businesses," to be exact.
The council addressed Phoenix's 11 topless bars (liquor-licensed establishments where dancers must wear G-strings and cover their nipples with transparent latex) and seven "adult cabarets" (where dancers get completely naked, and liquor isn't allowed).

But the most fiery moments concerned swingers' clubs--the smallest sector of Phoenix's sex industry in terms of participation, profit and political power.

City officials painted a horrifying picture of the clubs, calling them places where prostitution and sexually transmitted diseases flourish.

Assistant Phoenix police chief Ernie Bakin warned of "a veil that these private [swingers'] clubs provide, to commit acts of prostitution in private rooms. We're very concerned that people have to buy their way into private clubs."

That statement outraged Elizabeth Butler.
"I was quite upset that you councilmembers have considered the place that I attend a whorehouse, and therefore, consider me a whore," she said. "I find that repulsive, and I expect a public apology from everyone. [We] do not pay to have sex with anyone, nor do we condone people paying for sex with anyone. We do what we want with other people, with their consent. . . ."

Butler didn't get her apology.
After more than two hours of public testimony on the issue, the council banished swingers' clubs from the city by a 9-0 vote. Three laws that tighten the rules on strip clubs also passed unanimously.

There was no debate among councilmembers. It was a slam dunk, powered by Mayor Skip Rimsza and Councilman John Nelson, who chairs the committee that drafted the new laws.

Though the outcome of the council's vote seemed scripted, the result of an expected court fight over the legality of the new sex laws is not.

Cities can't outlaw or even restrict sex businesses just because city leaders don't like them. It's unconstitutional, unless the government can show that such businesses lead to other crimes or threaten the community's health and safety--so-called "secondary effects."

To survive appellate court scrutiny, the Phoenix laws will have to traverse a legal minefield of First Amendment issues. But the evidence presented by city officials to justify the need for the new laws was tepid.

For example, the City Attorney's Office referred to swingers' clubs as "bawdy houses"--a common-law term for houses of prostitution. But the city offered no evidence that acts of prostitution do occur at swingers' clubs, which bill themselves as places where consenting adults may engage in free sex.

The city also accused the swingers' clubs of being hotbeds for sexually transmitted diseases, but submitted not a shred of proof. (People who have unprotected sex at swingers' clubs certainly have at least as good a chance of contracting an STD as, say, someone who meets a stranger at a mainstream bar.)

In banning the swingers' clubs, and passing the new regulations on strip joints, the city council marked Phoenix as a new battleground in the nationwide legal war over sex businesses.

It's a war zone in which forces on both sides speak in righteous absolutes, but realities are elusive. The rhetoric is intensely passionate, often overstated, sometimes fallacious.

Some who spoke against the new laws insisted that illegal acts are rare at sex businesses. That's ridiculous, especially in all-nude cabarets that feature "private-room dances." Other opponents accused the council of using a smoke screen of public health and safety concerns to cloak its true intent: to legislate sexual morality.

Those advocating the sweeping crackdown included Christian conservatives, self-proclaimed neighborhood activists and police. Religious types raised the specter of "Sodom and Gomorrah," bemoaned lost innocence and vowed to protect children.

The city summarized its case in the prologue to each of the new sex laws:
". . . Such businesses generate secondary effects which are detrimental to the public health, safety and welfare. Such businesses are frequently used for unlawful sexual activities, including public sexual indecency and prostitution, and sexual encounters of a casual nature."

The net effect of the laws includes:
* Swingers' clubs will be shut down January 8.
* Private-room dances at all-nude clubs will be illegal.

* Patrons of topless bars no longer will be able to tip strippers by sliding money into a G-string. Only hand-to-hand tipping with "incidental contact" is now allowed.

* Topless dancers are barred from simulating sex acts, or making "sexual contact" with customers during table dances.

* Strippers will be licensed and required to undergo criminal background checks. Those convicted of a prostitution-related charge in the previous two years won't be allowed to work at Phoenix strip clubs.

Laws governing sex businesses must satisfy constitutional freedom-of-expression safeguards, and prove that a city has good reason to combat "secondary effects" of those businesses.

Conservative Christian activist Len Munsil described those supposed effects in his 1996 tome Protecting Communities From Sexually Oriented Businesses, written when he was executive director of the Scottsdale-based National Family Legal Foundation:

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