Posted on | December 20, 2012 | 21 Comments
Lisa Graas remembers how Rick Santorum was ridiculed for saying that the same logic that justifies gay marriage as a “right” could also justify legalized bestiality. Many at the time mocked Santorum as a bigoted yahoo. Yet the Republican presidential hopeful was merely expressing what Supreme Court Justice Antonin Scalia had warned of when, in dissenting from the court’s 2003 Lawrence v. Texas decision, he criticized the thin and hasty logic by which his colleagues overturned their own 1986 Bowers v. Hardwick precedent:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.
Scalia’s dissent — which everyone should read — derided the court’s majority decision for creating a hitherto unknown “emerging awareness” doctrine for laws governing sexual behavior. Who can predict with any confidence where “emerging awareness” might lead?
We may be farther down the slippery slope toward legalized bestiality than most people suspect. In September, Carlos Romero was arrested in Marion County, Florida, and charged with having sex with a female miniature donkey named Doodle. His lawyers are arguing that the Florida law against sex with animals violates Romero’s rights:
In the motion filed in Marion County court on Dec. 6, the assistant public defenders handling Romero’s case — Joshua Wyatt, Scott Schmidt and Joshua Lukman — wrote that the statute infringes upon Romero’s due process rights and violates the equal protection clause of the Fourteenth Amendment in the U.S. Constitution.
Of course, the 14th Amendment — the universal solvent of judicial activism! Tracy Clark Flory at Salon is apparently OK with that:
They’re specifically targeting the language of Florida’s anti-bestiality law, which does not require proof that an animal has been harmed or “of the sexual activity being non-consensual,” or even of penetrative sexual contact.
The attorneys write, “Therefore, the only possible rational basis for the statute is a moral objection to sexual acts considered deviant or downright ‘disgusting.’” And that, they argue, is unconstitutional: “The personal morals of the majority, whether based on religion or traditions, cannot be used as a reason to deprive a person of their personal liberties.”
If, however, “the statute were to require sexual conduct with animals to be nonconsensual or to cause injury in order to be a crime, then perhaps the State would have a rational basis and legitimate state interest in enforcement,” they write.
It may be an opportunistic defense, sure, but it also brings up some interesting, if squirm-worthy, questions: Why should bestiality be illegal? Is it because it’s socially unacceptable or because it causes harm to animals? If it’s the latter, is it OK for people to have sexual contact with animals in cases where the animal isn’t harmed?
You can say whatever you want. Just don’t say you weren’t warned.