The Utah polygamy-rights decision is truly a courageous civil rights ruling. Most sexual liberties decisions going all the way back to Griswold v. Connecticut come at a time when the relevant practices have won very broad acceptance, especially among the educated elites. Not so with polygamy, which is quite far from the lives of the elites, and is opposed by a Baptists and bootleggers coalition of religious conservatives (bad for the “traditional family,” smacks of Mormonism) and secular liberals (bad for women, smacks of Mormonism). The judge will make few friends with his ruling. Editorialists will not liken it to great civil rights breakthroughs. It will surely be overturned, with conservative judges fearing an expansion of substantive due process, and liberal ones fearing a backlash. And that is what makes it brave, whether right or wrong.
Now seems like a good time to revisit a post on bestiality from earlier this year, which surely seems less radical now. Bestiality bans are [even?] 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 (though presumably limits one to unusually broad-minded spouses). Nor does it oppress women, the empirical claim behind bans on polygamy, as well as prostitution. Here is the body of the post:
Most states criminalize zoophilia and in many places the bans have been enacted quite recently. Moreover, the laws are from time to time enforced.
The 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. Homosexual conduct is just a hot-button particular instance of the general principle. Constitutional protection of […]