Northwestern University law professor Eugene Kontorovich believes that that bestiality is constitutionally protected private sexual activity, and thinks that a recent federal court ruling supports his claim. This post examines the issue briefly.
North Carolina law. Bestiality is illegal under G.S. 14-177, which makes it a Class I felony to “commit the crime against nature, with mankind or beast.” See State v. O’Keefe, 263 N.C. 53 (1964) (“In this jurisdiction crime against nature embraces . . . bestiality as [that offense was] known and defined at common law.”). A couple of months ago, a bestiality case arising in Raeford, North Carolina, attracted national attention.
Other states’ laws. I haven’t researched the question myself, but Professor Kontorovich asserts that “[m]ost states criminalize zoophilia.”
The constitutional argument. Professor Kontorovich argues that “[t]he 14th Amendment has been interpreted to recognize a broad and very valuable liberty interest in sexual autonomy. Constitutional doctrine regards private sexual choices as vastly more important than other kinds of choices, and thus presumptively protected. . . . Bestiality is private sexual conduct and thus prima facie requires a very good justification to regulate.” He doesn’t think that animal welfare is such a reason, at least not categorically, noting that “many European countries make zoophilia legal, but punishable under existing animal welfare laws when cruelty can be shown.” Professor Kontorovich isn’t totally alone in his thinking. In Lawrence v. Texas, 539 U.S. 558 (2003), Justice Scalia argued that state laws against bestiality – among other types of sexual conduct – might be difficult to sustain in light of the Court’s protection of sexual behavior. And a paper posted recently on SSRN by a visiting fellow at Cornell Law School argues that “the standard justifications [for prohibiting bestiality] break down” upon closer inspection.
The recent case. The case that Professor Kontorovich thinks lends some support to his argument is Brown v. Buhman, a federal district court decision from Utah. CNN has the story here. It’s a civil case in which the plaintiffs are the stars of the Sister Wives television show. They sued the county attorney, challenging the constitutionality of Utah’s anti-polygamy law. The judge granted a portion of their motion for summary judgment, ruling that the part of the law that prohibits a married person from “cohabiting” with another person is a violation of the Free Exercise Clause and the Due Process Clause of the Constitution.
Application to bestiality. As far as I know, there’s no religious aspect to bestiality, so the free exercise ruling isn’t relevant. As to due process, the court stated that “[c]onsensual sexual privacy is the touchstone of rational basis review in this case,” and it found no rational basis for criminalizing the conduct in question. Professor Kontorovich takes the ruling and runs with it: “Bestiality bans are . . . less constitutionally defensible than polygamy bans because the purported harms associated with the practice are lower. It does not undermine families because it is not a substitute for traditional unions . . . . Nor does it oppress women, the empirical claim behind bans on polygamy.”
My take. Whatever the merits of the Brown decision, there’s a good chance that it won’t stand. Professor Kontorovich himself thinks it is likely to be overturned on appeal, and the Utah courts have rejected similar arguments, suggesting the possibility of Supreme Court review if the court of appeals were to affirm. Furthermore, even if the courts were to recognize a right to polygamy or polyamory, that strikes me as a long way from recognizing a right to bestiality, which is both a deeper taboo and an area where there can be no meaningful consent. So I don’t think we’re anywhere near seeing legal recognition for bestiality. In fact, I’m not aware of a single decision in which such a right has been held to exist.