About a decade ago, while with The Center for Arizona Policy, I drafted a bill, defended its constitutionality in committee hearings, and helped it through the legislature and watched it be signed into law.
The law restricted the hours of operation of sex clubs in order to protect communities from the harmful secondary effects of such establishments. It had the support of neighborhood organizations and business lobbyists, and was modeled on laws enacted and upheld in other states and municipalities.
The sex clubs didn’t like this much. One of their owners wanted to start a fight outside a committee room. Another wrote a letter to the editor accusing me of using “intimidation tactics and brutal political hardball” to get the bill through. (He was mad that we said we would tell voters how their representatives voted.)
The sex clubs have a lot of money, and would lose a lot of money if the law went into effect. So they sued. First they tried federal court, but they lost. So they appealed and lost again, and then again.
Naturally, they turned to state court, and finally found one judge in Pima County who didn’t like the law and struck it down. That decision was not appealed. But a few years later a Maricopa County judge, and the Arizona Court of Appeals, upheld the law. The Arizona Supreme Court took the case to settle the dispute between two of its lower courts.
On Thursday the Arizona Supreme Court refused to uphold the law. Instead, the Court constructed a new “test” to be applied by lower courts, and sent the case back to its starting point for more evidence to be presented. And so it starts over, 10 years after it began.
Federal courts have already ruled the law is constitutional. This decision was based on the Arizona Constitution’s free speech clause. Incredibly, we are asked to believe that Arizona’s founding fathers — in 1910 — intended to protect pornographic speech to a greater extent than it is protected by the First Amendment.
Meanwhile, the sex clubs and their lawyers keep laughing all the way to the bank, as they anticipate thwarting the will of the people of Arizona for a second decade.