SUSPECT CATEGORIES OF A CERTAIN KIND

My years at animal control were an education in the relationship between practical order-keeping and laws as tools.  One of the most basic lessons came when working with the citizen panel that was charged with rewriting our animal laws encountered the leash law.  What could be more simple?  A dog out of a house or yard had to be on a leash.  Then came the questions.  Many of them went to definitions.

One man walked his dog on a thirty-foot rope.  He said it was a leash.  How short did it have to be before it was a leash as we intended?

A dog was dragging its leash along behind it.  The owner’s defense was that the law said nothing about a human being on the other end of the leash -- just the dog on one end.  So we had to define a leash as being held by a person.

One huge dog was “walked” by a child who was not strong enough to restrain the dog.  So now we had to say that the person holding the end of the leash was capable of managing the dog on the other end.

There is a kind of leash on a retractable spring strong enough that if the leash extends and then retracts very quickly when fingers are in the way, it will snap the fingers off.  Should this kind of leash be illegal?  Should that be in the leash law?

But I don’t want to talk about leashes.  I want to talk about the difficulty of defining a “group” in a global and changing society, particularly when that group is controlled through the use of disgust to evoke stigma.  Specifically, I want to consider sexual orientation and tribal affiliation and, briefly, how they interact.  This is close but not the same as the legal term Nussbaum calls “suspect classification,” which is about legal classes that are rooted in prejudice or classes about something that can’t be intentional and isn’t relevant, like skin-color.  But my discussion is about the impossibility of finding a clear edge to the group, a guide to who is clearly in and who is clearly out.

First, “homosexuality”.  Our understanding of sexual orientation (not gender, not anatomy, but desire for physical relationship) has been much changed in several ways.  Brain theory is one, now that we can see cells “light up” when they are at work.  This meets with psychological theories of genetic inclination and subsequent imprinting and molding.  Research makes it clear that individuals are shaped by innate-from-conception qualities, the bonding and attachments of early childhood, the possibilities present in the culture, and the initiative of the person his or herself.  There are so many forces at work that it is impossible to describe an archetypal homosexual of either sex or of mixed or changed sexes.  Therefore, how can they be grouped except voluntarily or according to some kind of arbitrary stereotype?  Criminalization of some practices might be one way to define group, since the person would have to be judged in court and determined either guilty or not guilty.  The trouble is that there is no sexual practice that is exclusively homosexual -- everything is also done by heterosexuals.  

Differing sexual practices are accepted or rejected by different societies in different locations at different times as possibly okay or possibly criminal.  The impact of anthropology and what I call the “Star Trek principle” -- that every culture is a whole that should be left unbroken -- has made it clear to some ill-fitted people that moving to a different place might solve their problem and sometimes it does.  More recently, as primitive tribes fade away and the possibility of creating “tribes” is ever more real with the help of the Internet, the "tribe" of gays -- as seen in San Francisco in the Seventies -- offers inclusion to one kind of stigmatized person.  Of course, then tribes form within tribes.  Tragically, a bit of wandering RNA code affected the larger tribe in the same way that smallpox wiped out the larger group of Native Americans.

Native Americans will not appreciate me saying this, because they have enough trouble wrestling with their own stigmas and accusations of disgusting attributes without having gays mentioned.  But their success in gaining sympathy and creating an aura of spiritual superiority has made them an alluring destination for misfits, including gays.  Anyone who deals in artifacts or Western art knows these quiet and often very charming and wise men with no NA DNA.  In fact, it’s uncomfortable to draw attention to them, for fear of inviting a fire storm.  Don’t ask, don’t tell.

Native Americans, as first encountered in 1492, have been a puzzle to Europeans.  Not all Europeans thought they were quite human, a stigmatic disgust that made it possible to classify them as animals -- to be killed as convenient.  Of course, some of these tribes were capable of killing, even eating their victims, even forcing the victims to eat themselves.  This, of course, did not confirm their human status to Euros.

Also troublesome has been the concept of tribes that came from deep in European history.  Tribes were thought to be like “nations,” sort of pre-nations.  Notions of territory, hierarchy and ownership that were unknown to the American people, controlled what the European empires and then the newly formed American countries did to keep order.  Lists were good, they thought, so they made lists of all the people in a particular tribe.  Of course, DNA was still unknown, so they used the principle of provenance, “begats” as has been traditional since the Bible.  Who was your mother, who was your father?  This is what entitled a person to commodities, assigned them a territory, made them a negotiating and sovereign body.  It was a problem that children more or less belonged to everyone in the group.  Mothers could be identified, but the concept of “mother” often extended to her sisters.

Sovereignty was necessary because these were intact cultures in the “Star Trek” sense: they had developed ecologically effective relationships among themselves and with the land that kept them alive while sustaining what they needed.  They were exactly the kind of fascinating development that anthropology was devised to describe, because it was assumed that they would stay separate like that, without intermarriage, and then die out over time.  They did not.  Instead they gradually feathered over into diasphoras.

People talk about how the full-bloods have disappeared.  They have not.  But they are now mixed among the tribal rolls of many groups with no one tribe able to claim a majority.  There is no DNA marker than can definitively prove someone is “in” or “out” of a specific tribe, because they were always a center with a penumbra, always drawing in people of other DNA and always spinning off people from the most characteristic DNA markers.  The idea that full-bloods are gone and therefore so are “Indians” is in the interest of those people who would like to close down reservations and their pesky sovereignty, which becomes easier as the original generations recede into the past.  If they can say, “there are no more Indians,” then perhaps they can escape the treaties.

These two groups, one based on origin in indigenous people at first encounter and one newly formed according to public notions of sexual predilections, stand in interesting juxtaposition.  Unless a democracy can frame laws that protect them both, it is not truly a democracy.  Neither group wants to surrender their identity, but time morphs that identity in unexpected ways.  If it is agreed that “homosexual” and “heterosexual” are Procrustean terms that have outlived their usefulness once sexuality is agreed to be multi-various across a spectrum, is the group undone?

What is the future of “native Americans?”   Only those who have provenances identified with the original inhabitants?  Those who have “citizenship” rights with a tribe?  Those who can produce a family tree?  So far the government has solved tribes the same way it has solved religious groups: if the group says they’re in, they are.  That means no two tribes use the same criteria.

And yet there are many laws about both homosexuals and Native Americans.  We’ll be wrestling with this for a long time.