Maggie Gallagher

I hate to be the one to tell you this, but a serious case is now being made that our beloved Constitution gives us the right to have sex with donkeys.

First, the lawyers:

Over at Volokh.com, Northwestern law professor Eugene Kontorovich argues, "Bestiality is private sexual conduct and thus prima facie requires a very good justification to regulate. ... Insisting that bestiality bans simply regulate animal welfare is insufficient. Those regulations do not typically intrude on protected interests.

"Bestiality bans regulate human sexual expression. And in the Supreme Court's jurisprudence, sex is special."

Antonio Hayes, a fellow at Cornell Law School has what Kontorovich calls a "fascinating paper": "Dog on Man: Are Bestiality Laws Justifiable?" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2185469). Hayes treats zoophilia as a sexual orientation and says animal rights concerns should actually make us more likely to reconsider bestiality bounds, given animals might enjoy it: "And if it is true that respecting the dignity of nonhuman animals requires -- at minimum -- reducing their suffering, then it is not immediately apparent why the same dignitary interests do not require -- at minimum -- acknowledgement of the possibility that the nonhuman animal may seek sexual pleasure, sometimes with humans."

Cue the filmmakers. After the groundbreaking 2007 documentary "Zoo" (about a Boeing engineer who was killed by having his colon ruptured during sex with a horse), which The New York Times review called "A Lyrical Approach to a Subject That Shocks," we should not be surprised to find this fall's new film festival entry is "Donkey Love," which claims South American men often have sex with donkeys, who are cheaper and more accommodating than wives.

How do their peculiar desires hurt you, or anyone else (assuming the animals don't mind)?

The Internet has allowed zoophiles to come out and find one another, and they are no longer willing to quietly let the law kick them around.

This week lawyers went to court to argue that our Constitution gives Florida farmhand Carlos Romero the right to pleasure his donkey.

"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. His conduct was not exactly private given the farm's owner stumbled across Romero with his pants down in the farmyard, but let's put that aside.

Consent? Let the state prove the donkey failed to consent, the lawyers argued. (Moreover, if you don't need the donkey's consent to ride it or eat it, why this?)

"Therefore, the only possible rational basis for the statute is a moral objection to sexual acts considered deviant or downright 'disgusting'?" they wrote. "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."

Sexual desire was once held to be a powerful force capable of creation or destruction, that civilized norms needed to channel.

Sexual desire was once considered to have a natural object, a purpose, a point -- something more than the pleasure principle to give it coherence and meaning.

Internet porn has created increasingly inward-directed fantasy worlds for men, and allowed them to find one another, and to take courage in community.

I had suspected that we were some years away from having courts take these arguments seriously.

But sadly, the arguments are now being made.

In the '70s, a father I once knew turned off the Phil Donahue show on another subject, saying only, "About some things, civilized people do not speak."

I wish.


Maggie Gallagher

Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.