(The following is a transcript of testimony delivered by Deanna Forbush to members of Nevada’s COVID-19 Mitigation and Management Task Force on October 8, 2020)
Nye County has established and maintained a low Covid-19 positivity rate (6.4). And while the Governor has opened all other businesses in the county, he keeps brothels closed for no rational reason.
To maintain his emergency executive authority the Governor must avoid acting in an arbitrary or capricious manner. He would accomplish this by evaluating and treating all businesses with the same criterion.
He has not done that here.
Some businesses are open while others remain closed, and the decisions made in this regard have clearly been, not only arbitrary and capricious, but also prejudicial and unconstitutional.
So far, all my client has been told is the Governor is not “focused on brothels, that he is more interested in getting kids back in school, and he doesn’t like skin-on- skin activity.”
I have to tell you just how hurt the people who work in this lawful industry are, people forced out of work for eight months, and whose kids are hungry. They are very hurt to learn just how little they mean to their Governor, many who voted for him.
Also, there are plenty of “skin-on-skin” businesses which have been allowed to open while my Client remains closed.
1. Dentists and their hygienists who probe their patents’ mouths with their fingers for up to 30-60 minutes at a time are open. Yes, they wear gloves. But our customers have been wearing just as much latex protection as they do, long before COVID. And, when allowed to open our doors, just like the dental professionals, our customers and contractors will be required to wear masks at all times pursuant to the protocols we’ve submitted to our county and were approved overwhelmingly.
2. Spas and massage parlors are open where, while wearing nothing more than a sheet, a person can have their bodies massaged and rubbed with oils and lotions by an ungloved masseuse for up to 90 uninterrupted minutes.
3. Eyelash and hair salons are open. Technicians apply lashes with ungloved fingers in their customers’ eyes for 60 minutes straight. Hair stylists stand over their customers, washing their hair, massaging their scalps, cutting their hair, and then blowing it dry, sometimes for two hours without interruption.
4. Escort Services are open, which, as I understand it, involves one-on-one dating of persons who are typically unfamiliar with one another.
Meanwhile, brothels remain closed because the Governor doesn’t like skin-on-skin activity?
The Governor should understand that every business is essential to the people who work there as well as to those who patronize these establishments.
Killing the economy will not kill the virus. We simply will not change the course of the pandemic with an economic lockdown. However, what’s simply unfair, is the government has disparately applied its opening metrics creating winners and losers. That is not the function of government.
If the state’s metrics were being evenly applied, my client would be open. Elected leaders and government staff must not allow their own individual prejudices or moral judgements to discriminate against lawful businesses by applying different standards to similar industries.
Beyond being unfair, the system employed to date, is blatantly unconstitutional. The Constitutionality of Emergency Directives are subject to the constitutional guarantees of due process and equal protection.
The Equal Protection Clause under the 14th Amendment to the Constitution requires that before a government can treat similarly situated groups differently, there must be a rational relationship between the disparity of treatment and a legitimate governmental purpose.
This principal is reinforced by the 14th Amendment’s Procedural Due Process, requiring that before a government can deprive individuals of liberty or property, i.e., their businesses, it must show that it is acting for a public purpose, and that its actions are not “arbitrarily or without some reasonable relation to that stated purpose.”
There is no possible rational relationship between keeping my client closed and the public’s safety.
People who frequent my client’s establishment do not engage in group activity, services are provided one-on-one. As I listed above, the government has allowed businesses with indistinguishable risk factors to open, and has also permitted “super spreader” events to go forward with impunity, due to the participants’ constitutional rights.
These same constitutional rights are also guaranteed to my Client. Instead, my Client’s rights have been denied for over eight months.
The Governor has likely noticed the lawsuits which have been filed around the country. These suits have not turned out well for governors.
For instance, in Pennsylvania, that state’s Supreme Court told Governor Wolf that his order shutting down businesses violated the 14th Amendment. Michigan’s Governor Whitmer learned from her Supreme Court that her actions were unconstitutional. The same thing happened in Wisconsin where that state‘s Supreme Court overturned it’s governor’s mandates.
Unless legal businesses in Nevada are allowed to re-open, the same thing will happen here.
My Client does not wish to join the long list of businesses which have sued the Governor and this state for his unconstitutional actions. We don’t want to be part of the problem facing this great state. Instead, we wish to be part of the solution, by putting thousands of people who work in this lawful industry back to work so their families no longer suffer. We want our counties to again become prosperous with the economic activity our businesses generate.
Please help us do that by issuing one more Directive opening our businesses, and putting our people back to work. Thank you.
Ms. Forbush is an attorney with the firm of Fox Rothschild who represents the Chicken Ranch brothel in Nye County.