Life, Liberty and the Pursuit of Horses

Sooner or later the Living Constitution will meet bestiality. The sex-with-animals crowd as alternative lifestyle is on display in a film which just premiered at the Sundance Festival. The "internet-based zoophile community" portrayed in the film is not sensationalized or condemned according to the account Kenneth Turan of the Los Angeles Times.

I have not seen the movie, but I have seen modern jurisprudence, which is beginning to show preliminary signs of extending its embrace of relativism to interspecies sex.

In 2005, a Seattle man died in a sex incident with a stallion, and press coverage called the subject to the public's attention. The Washington legislature subsequently enacted ban on bestiality, which effectively put an end to a reported "bestiality farm" in western Washington.  Last year saw the first man to be charged for violating the new law.

The subject is now attracting academic legal analysis. Skepticism of our moral and legal judgments about bestiality found voice in a recent article in the Washington Bar News-the official publication of the Washington State Bar Association.  "Substantive Due Process and the Problem of Horse Sex," by Natalie Daniels, presents the living constitution's case for the protection of bestiality.

Amongst living things, mankind alone possesses the capacity for rational thought.  Man owns a conscience, a sense of right and wrong.  Humans are uniquely endowed with rights and owe responsibilities to one another.  It is wrong to treat that which is human as sub-human, just as it is wrong to elevate the sub-human to the level of human.  Blurring the lines between human and sub-human is antithetical to our existence as a unique species.  

Or could we be wrong?  Maybe our revulsion to bestiality is itself an irrational response based upon arbitrary feeling.  Perhaps our sense of repugnance towards bestiality is simply grounded in arcane moral beliefs.  Possibly, our judgments about bestiality constitute insidious discrimination against humans who have sexual desires for sub-human creatures. 

It would be one thing to pick on a single article in a state bar magazine-especially one that took some boldness.  Surely, bestiality would find no legal support from most adherents of the modern, living constitution. But the article's arguments are paradigmatic of modern relativism's idiosyncratic views of morality and of a constitution whose principles evolve with the times, as interpreted to us by judges.  And if a constitutional jurisprudence can so readily supply a plausible argument for the protection of bestiality, then there is clearly something wrong with our constitutional discourse.

There are two primary aspects to the article's argument for bestiality as constitutionally-protected behavior.  First, it is asserted that anti-bestiality laws amount to mere morals legislation.  The living constitution tells us we don't allow morals legislation in America.  Not anymore, anyway.  The Supreme Court's decision in Lawrence v. Texas (2002) supposedly ended the days when our mere sense of right and wrong could be used as a primary basis for legislation. 

We are still assured that statutes prohibiting murder don't count as mere morals legislation.  Prohibiting murder is supportable by something more compelling than mere moral disapproval: "It is also a public-safety issue, advancing the vital state interest of keeping people alive so that they may be taxed and otherwise governed."

The argument relies upon a terribly idiosyncratic concept of right and wrong.  Plainly, the argument for the protection of bestiality implies that it would be wrong to prohibit such conduct.  That's an inescapably moral assertion.   Never mind that Washington's anti-bestiality law was prompted, in significant part, by the death of an Enumclaw, WA man who had an encounter with a horse.  The moral degradation of man makes bestiality every bit as wrong as the possible physical destruction of man. 

Moreover, the reality is that we humans most immediately recognize the moral wrong of the taking of innocent human life.  That is why we have murder statutes.  We know that no one has a right to wrongfully deprive another, innocent person of life. Just how many families of murder victims mourn the loss of tax revenue that their loved ones will no longer generate?  Only an incredibly stunted view of mankind would tell us that we best find constitutional meaning as tax-revenue generating automatons to oil the machinery of government.  Sadly, the IRS-defense of human meaning may be the best our constitutional jurisprudence can do if we can't "legislate morality." 

Arguably, certain language in the majority and concurring opinions in Lawrence v. Texas casting doubt upon laws based purely upon traditional notions of sexual morality-if taken in its most literal and absolute sense-may thereby cast some doubt upon an important basis for anti-bestiality laws.  But it's not unusual for jurists to resort to overgeneralizations and hyperbole in order to bolster their rulings in cases deciding highly specific matters.  To be sure, the jurisprudence of Justices Anthony Kennedy, Sandra Day O'Connor and Stephen Breyer, have taught us to expect highly contextualized, fact-specific decisions that offer little in the way of guidance or predictability based upon principle.  (Take, for example, the Supreme Court's simultaneous upholding and striking down of Ten Commandments displays upon government property in a pair of cases in 2005.) 

Only a seismic shift or complete collapse of traditional state police powers could exonerate bestiality.  Thus, it is a safer bet to understand Lawrence v. Texas as a results-driven case deciding the narrow question of whether homosexual anti-sodomy statutes are constitutionally permissible.  Surely, there are few Americans today who would defend the prudence of laws such as those at issue in Lawrence.  Dissenting Justice Clarence Thomas even wrote that if had been a legislator he would have opposed such a law.  Prudence often tells us that it may cause even greater harm to outlaw certain types of conduct that might otherwise be morally questionable.  However, the " no morals legislation" claim in favor of bestiality cannot be confused with an appeal to prudential judgment. 

The second primary aspect to the constitutional case against anti-bestiality laws is the impermissible targeting of an unpopular minority group.  So the constitutional argument goes, anti-bestiality laws are impermissible weapons against persons who have sexual inclinations towards non-human animals.  Through anti-bestiality legislation, the self-righteous "moral" majority persecutes a minority group.  Implicit in the argument is the idea that such arbitrary and antiquated moral claims may be fine for a person's private life, but they cannot be used to persecute (constitutionally recognized) victims' groups. 

Taken to its fullest extent, this line of argument is antithetical to law itself.  If people engaging in any particular type of behavior, or any particular type of sexual behavior can be considered a "minority group," then there can be no basis for outlawing any type of conduct.  To be sure, modern case law purportedly limits recognition of suspect classes for heightened constitutional protection to groups demonstrating a history of discriminatory mistreatment or to groups possessing obvious or immutable characteristics.  But the relativism pervading so much of the living constitution's jurisprudence renders such guideposts almost meaningless.  It's easy for a group of persons who engage in outlawed behavior to claim a history of discrimination. It's also easy for a group to simply invoke the Supreme Court plurality's "sweet mystery of life" passage from Planned Parenthood v. Casey (1992) to bolster claims for the immutability of the group's sexual inclinations.  If it is true that "at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," then it is discriminatory for us to treat humans as special and set apart from sub-human animals.  After all, such a view interferes with a group of persons' ability to define their own existence, including their own sexual identity.

Clearly, a constitutional jurisprudence that renders all morals claims inert and makes plausible the protection of bestiality should cause us to stop and re-think things.  We should remember that the founders of the American republic understood that mankind is neither angelic nor beastly.  Man is the juxtaposition of sanctity and depravity, endowed with rights, and capable of reflection and choice.  To prohibit man from legislating through his capacity for distinguishing right from wrong is to unravel our very understanding of what it is to be human.  And to protect bestiality is to render human sexuality incoherent.

Prohibition of bestiality has existed throughout our constitutional history, showing a due respect for human uniqueness. Such prohibition also reveals man's moral obligation to treat sub-human animals humanely.  In the end, it is the understanding of the American founders that gives us the coherent picture of mankind and the constitution that today's relativism horses around with.

Seth Cooper is an attorney in Washington State.

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