By Samuel Goldman • December 14, 2012, 2:03 PM

In response to Rod, Conor Friedersdorf weighs in on the the matter of Carlos Romero, lover of animals, and Doodle the miniature donkey. Recalling Justice Scalia’s dissent in Lawrence v. Texas, Rod asks:

Now, why does the state have the right to tell young Romero that he may not pleasure himself in the presence of his miniature donkey? It appears that he never actually violated Doodle’s, uh, person…The stable swain never laid a hand on that donkey, yet the state is prosecuting him for his amour impropre. According to liberal and libertarian ideas of sexual autonomy and the law, why should Romero and Doodle’s outlaw love be illegal?

Friedersdorf responds:

The defendant’s own attorney all but provided the answer. “If the statute were to require sexual conduct with animals to be nonconsensual or to cause injury in order to be a crime,” he noted, “then perhaps the State would have a rational basis and legitimate state interest in enforcement.” I’d insist, along with a lot of libertarians, that any sex with animals is in fact nonconsensual, and that outlawing it should be entirely unobjectionable to right-thinking liberals and libertarians. (I’d add that if self-pleasure in the mere presence of animals is a crime, we’d better start building prisons to house all the dog and cat owners whose pets witness their otherwise private moments.)

This doesn’t answer Rod’s question. Or if it does, it’s by demonstrating his suggestion that libertarians can offer no principled defense of laws prohibiting bestiality–or any other practice whose risks are born by the human individuals that engage in them. (I exempt “liberals” from this discussion because the term is too vague to identify a specific philosophical position.)

First, Friedersdorf acknowledges that he regards prosecution for Romero’s actual offense as absurd. We don’t punish people who keep more conventional pets from having sex (with themselves or others) around animals. So why should Romero face harsh penalties, including registration as a sex offender? The real reason Romero faces punishment for masturbating in Doodle’s presence, as his attorneys point out, is that this act is “considered deviant or downright ‘disgusting’”, while engaging in the same act in the presence of one’s cat might be merely embarrassing. According to Friedersdorf, however, that’s not good enough: there has to be a “rational argument” for outlawing bestiality, or any other sexual practice.

But what if Romero actually had sex with Doodle? Here, Friedersdorf think he’s on stronger ground. Animals cannot consent. Since it is legitimate to punish non-consensual acts, ”outlawing [sex with animals] should be entirely unobjectionable to right-thinking liberals and libertarians.”

Yet this argument isn’t very powerful either. To begin with, it’s not self-evident that animals can’t consent. At the very least, we’d need empirical reasons to believe that this is the case, particularly when it comes to higher animals such as great apes. All we have here, however, is Friedersdorf’s insistence that “any sex with animals is in fact nonconsensual.” That’s a stipulated premise, not an argument.

But even if we grant that animals can’t consent to have sex with human beings, human beings have the legal right to do lots of things to unconsenting animals. In the extreme case, we can kill and eat them. In a more relevant example, we can subject them to forced insemination for purposes of breeding and dairy production.

So what distinguishes legal non-consensual sexual contact with animals that’s necessary to animal husbandry from the illegal non-consensual sexual contact with animals that Romero could be said to enjoy? Primarily this: the former has traditionally been regarded as a normal and indeed useful activity; the latter as deviant and disgusting. But Friedersdorf has already indicated that moral disapproval, by itself, is not a sufficient basis for regulating sexual activity. So he needs another argument to sustain his approval for anti-bestiality laws.

Romero’s attorney offers a final possible justification: that sex with animals causes injury. He doesn’t say whose injury he has in mind: injury to Romero or injury to Doodle.

An argument based on injury to Doodle probably won’t work. There are laws against cruelty to animals. But animals are routinely killed and injured in the normal activities of breeding and meat and dairy production. In order to justify anti-bestiality laws on the basis of harm to the “victim”, then, Friedersdorf would have to argue either that the harm inflicted by recreational sex with animals is worse than that associated with legitimate domestic purposes, or that the recreational purpose for which the harm is inflicted is itself illegitimate.

The latter option isn’t available to him, because he’s ruled out mere moral disapproval as a basis for legislation. And reports about conditions in the industrial meat and dairy industries make me very skeptical about the former alternative.

So it seems like the only basis for outlawing bestiality available to the libertarian is harm to the “zoophile” himself. This is, again, an empirical question, whose resolution would require extensive research. Bestiality might turn out to be a pretty risky behavior. But libertarians are generally willing to allow normal adults to engage in all kinds of risky behavior, such as the use of hard drugs.

At this point, it’s worth recalling the famous words of John Stuart Mill: ”the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others [emphasis added].” Does Friedersdorf want to argue that individuals’ practice of bestiality causes enough harm to others to justify its legal prohibition? He’s welcome to do so. I suspect, however, that such an argument would not be very compelling.

Readers who have borne with me so far may wonder about the point of offering such an elaborate critique of Friedersdorf. The answer is that I find no basis for his claim to be “capable of making persuasive arguments against sex with animals and all manner of other practices I regard as properly prohibited”, in contradistinction to social conservatives like Rod who ostensibly assert subjective intuitions or merely defer to traditional authority. Like Friedersdorf, I doubt “that human-animal trysts and marriages are at the end of a slippery slope onto which we’ve stepped.” If we avoid that destination, however, it will be because human nature revolts against the implications of libertarianism rather than due to any argument offered by libertarians themselves.