Life, Liberty and the Pursuit of Horses

American Thinker ^ | January 23, 2007 | Seth Cooper

[neverdem]

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.

Page Printed from: http://www.americanthinker.com/2007/01/life_liberty_and_the_pursuit_o.html at January 24, 2007 - 09:45:24 PM EST

[IronJack]

Let's make this even simpler. Let's just draw the line at bestiality just because we can. We know that there is value in setting limits, and we recognize that any line we draw is by necessity arbitrary. So let's just accept the arbitrariness of that decision and draw the line without apologizing for it.

We're going to say that having sex with animals is wrong. Not ... "because" ... of anything. But just because it is. We could just as easily pass a law saying it's illegal to wear red. Except that humanity in general does not agree that wearing red is an abomination, while it DOES agree that that describes bestiality.

Enough is enough.

[penelopesire]

Good article, but...gross to think about!

[snarks_when_bored]

The pursuit of horses? That's completely disgusting.

But sheep are so clean and soft and fluffy and kind...

[Shadowstrike]

There is a big difference between loving your pet (that includes Horses, goats ect) and being in love with your pet.

Having sex with your pet? Now that's just gross, and probably confusing as hell to the animal.

call me a prude if you want, but this should be banned.

[Cicero]

Hmm. I had a look at the legal article that is linked above in this one, "Substantive Due Process and the Problem of Horse Sex."

I find that it was written by a third-year law student at Seattle University, which happens to be a Jesuit university.

She thanks two of her law professors at Seattle University for helping her with the article.

To what depths have the Jesuits descended? Do they still consider themselves to be Catholic? Good grief. This is disgusting. Are they proud of their student, trained "in the Jesuit tradition"?

[freekitty]

Sick, sick and sick.

[GovernmentShrinker]

I hope our government has better things to spend our tax money on than investigating and prosecuting cases of apparently consensual sexual activity between humans and their own animals or animals whose owners don't object. Animal cruelty is not okay, and surreptitiously having sexual contact with other people's animals is not okay, and having sex with animals is kind of icky. But do we really need our police and courts and prisons tied up with cases of people whose dogs humped them and who encouraged the dog to continue and go further? I can hear the testimony now:

Prosecutor: "Which party would you say initiated the act?" Defendant: "The dog, sir. It was the definitely the dog who initiated it."
Prosecutor: "Did you in any way encourage the dog?"
Defendant: "Well, no, I didn't actively encourage the dog, but I didn't actively discourage the dog either."
Prosecutor: "And then what happened? Was there penetration?"

And the jury instructions would be simply beyond belief.

[neverdem]

Enough is enough.

That won't be enough for the 9th Circus.

[berdie]

This is pretty darn scary. As each societal and moral taboo is made acceptable and "understandable" by the media..we cross another line..and another...and another...

[the808bass]

we cross another line..and another...and another...

All the while we are assured that our "slippery slope" arguments are merely the whimperings of fascist Judeo/Christians and we slip ever-so-gently into the inescapable morass of relativism.

[decal]

"The pursuit of horses? That's completely disgusting."

If it's good enough for Prince Charles, it's good enough for YOU!

[Raymann]

It is completely inexcusable for an attorney to somehow believe what this guy is spewing. His argument is based on two very flawed assumptions:

1. Morality is decided by the majority of people and anyone who rejects that assertion is a ‘relativist’.
2. The people have the right to legislate issues outside the realm of morality.

First, a definition; I don’t want to talk about one thing and you think another. What is morality? Morality is a set of codes used by society to secure the individual rights of the people. If a particular issue does not adversely affect the individual rights of a person, it is not a moral issue.

On my number one. I’m an atheist but I’m also a moral objectivist. In this way I’m somewhat like many of you in that as Christians, many of you also believe morality is objective (although of course we differ on the source). The means that we all believe that in this country of 300 million people, if 299 million of them believe something is right that doesn’t necessarily make it so. We all know this is wrong. For number two, the Constitution clearly forbids it. Everything in the Bill of Rights is there to protect peoples individual rights against the government. As sick and disgusting as bestiality is, animals have no rights therefore there CAN NOT be any violation of them.

What is morally wrong is to base any law, any legislation on a morality that isn’t based on the protection of individual rights. The purpose of government isn’t to enforce some, or even a majority of a peoples ideas on morality; it’s to create a system that allows people to freely act insofar as they respect the rights of other individuals. Anything greater then that is simple tyranny.

[snarks_when_bored]

"The pursuit of horses? That's completely disgusting."

If it's good enough for Prince Charles, it's good enough for YOU!

I'll at least agree that Chuck's a sucker for the ponies!

[-=SoylentSquirrel=-]

When I attended SFSU I took a class called "Variations of Human Sexuality". A big part of the class was viewing porn movies, but not the kind any human should be interested in:

Man and Cow
Man and Chicken (hen, I assume)
Woman and Pony
Woman and Saint Bernard
Woman and Eel

In the last one,they cooked and ate the eel when they were done with it.

Here's the hook: The professor, Mr. DeCecco, (sp?) went on the local news a few months later and defended gay pedophilia as "sometimes beneficial to the younger partner". (I paraphrase).

Life is so much simpler since I moved to Texas.

[snarks_when_bored]

Had the authorities been so minded, I suppose they could've busted the professor for showing bestiality films to your class. But "it's San Francisco, Jake".

[IronJack]

This is going to start an endless and irreconcilable debate, but I'm a sucker for lost causes.

First, a definition; I don’t want to talk about one thing and you think another. What is morality? Morality is a set of codes used by society to secure the individual rights of the people.

You've conveniently defined "morality" to buttress your argument. But I doubt one person in a thousand would agree with your definition. I prefer the one the dictionary provides:

Morality: A system of ideas of right and wrong conduct.

We're going to have to agree on the basics before we go any further.

[Raymann]

So that's why, unlike most all of the people in the forum, I try to provide definitions of the terms I use.

And I was talking about the right morality, not just any.

[MHGinTN]

Lawrence v Texas opened the door to all manner of sexual deviancy to be protected by the 'courts' by default that law may not proscribe them. That and other decisions have me convinced it is a subpreme court.