Does The Law Love An Ass?
The law, as we know, is an ass — but does it love an ass, or those sexual adventurers who love asses? From the vanguard of the fight for sexual liberation and autonomy comes Doodle’s beau:
Lawyers representing a Marion County man accused of sexual activity with a miniature donkey have filed a motion asking a judge to declare the Florida statute banning sexual activities with animals unconstitutional.
Carlos R. Romero, 32, declared last week that he wanted
to take his case to trial. He is accused of sexual activities involving animals, a first-degree misdemeanor, after he allegedly was found in a compromising position in August with a female miniature donkey named Doodle.
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.
The attorneys claim that the statute deprives Romero of his “personal liberty and autonomy when it comes to private intimate activities.”
“By making sexual conduct with an animal a crime, the statute demeans individuals like Defendant (Romero) by making his private sexual conduct a crime,” the attorneys wrote.
As another possible reason for unconstitutionality, the attorneys add that the statute doesn’t require that the state prove any harm or injury to the animal “or any proof of the sexual activity being non-consensual.”
“Therefore, the only possible rational basis for the statute is a moral objection to sexual acts considered deviant or downright ‘disgusting,’?” they wrote.
Using religion or the overall consensus of the public that sexual activity with an animal is wrong as the basis of a law is unjustified and bars Romero’s personal liberties, the attorneys argued.
“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,” the attorneys wrote. “If 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.”
One is reminded of Justice Scalia’s scathing dissent in Lawrence, the case that invalidated sodomy laws (N.B., I am against sodomy laws, but I find the way in which the high court got rid of them to be extremely problematic, for the reasons Scalia identifies). First, this passage from the majority opinion, in which Justice Kennedy quotes himself:
Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey,505 U.S. 833(1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
Scalia, in his dissent, pounced on this:
And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 13 (” ‘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’ “): That “casts some doubt” upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one’s “right to define” certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined “concept of existence, etc.,” it is the passage that ate the rule of law.
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. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U. S., at 196.
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:
Romero admitted that he gets sexually aroused around animals more so than humans and allegedly masturbated with Doodle in his room. He claimed that he would have had sex with the miniature donkey eventually, but that she wasn’t ready and was “blooming into maturity.”
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?