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Tuesday, May 11, 2010, 11:11 am

Elena Kagan and the “L” Word: Lesbian

By Jeremy Gantz
By Jeremy Gantz

So Elena Kagan's the one. The one President Obama has nominated to the U.S. Supreme Court, and the one whose life is about to be picked apart mercilessly and put back together by scores of different interest groups fighting to sway the outcome of her nomination.

Most of the questions already posed from the left, right and center are predictable—what are her views on abortion? federal climate protection laws?—but one, so far, is not: Is Elena Kagan gay?

The reasons the question is being asked reveal plenty about America's identity politics and culture wars. But first, the facts that should be clearly established from the outset: Kagan has never said (or denied) she is gay, or spoken as an advocate of gay rights. The White House has officially and vehemently denied she is gay, and attacked CBS for publishing a blog post asserting that she would be the first openly gay Supreme Court justice. (CBS retracted the story after the blogger said he was repeating a rumor.) And last year while being confirmed as Solicitor General she said there is no constitutional right to same-sex marriage, which may or may not mean she is opposed to gay marriage—there can be a difference between answering a question as a lawyer and answering a question as a private citizen.

(Gawker has a great succinct post on the case for and against Kagan being gay; exhibit A on the "yes" side is her haircut.)

Does it really matter if Kagan is gay? Both Andrew Sullivan and the hilariously named Christian group "Americans For Truth About Homosexuality" believe it does, for both the same (and opposite) reason: Her sexuality will inform her judgments about gay rights and marriage. Here's Sullivan on why we must know if she's gay, which he believes she is, citing "large numbers of people who have known her." He basically calls for the U.S. Congress to ask her during confirmation hearings:

Since the issue of this tiny minority - and the right of the huge majority to determine its rights and equality - is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It's especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: does he view Kagan's possible life-experience as a gay woman relevant to this? Did Obama even ask about it? Are we ever going to know one way or the other?

Here's Americans For Truth About Homosexuality (AFTAH) offering the same reasoning with the opposite goal in mind:

If Kagan is practicing immoral sexual behavior, it reflects on her character as a judicial nominee and her personal bias... The popular mantra -- even among conservatives -- is that Kagan's sexuality is 'irrelevant.' But a Justice Kagan would help decide some critically important constitutional issues dealing with: homosexual 'marriage' as a supposed civil right; religious liberty and freedom of conscience; and the First Amendment as applied to citizens' right to oppose homosexuality. So it certainly matters if she, as a lifetime judge, could emerge as a crusading (openly) 'gay' advocate on the court. ... Americans certainly have a right to know if her activism is driven by deeply personal motivations that could undermine her fairness as a judge.

The interesting thing about how similar Sullivan and AFTAH are on this is that they're actually making, or implying, opposite points about how sexual identity connects to Kagan's "fairness" on the bench. Sullivan, one of the first journalists in America to make the case for gay marriage, presumably believes that a gay Supreme Court justice would rule more to his liking on gay rights issues—i.e., be fairer. AFTAH believes the opposite. But their underlying assertions are the same: the public must know if Kagan is gay, because if so her sexuality would inform her rulings. Sexual identity cannot be separated from one's legal judgments.

Is this really a road we want to go down, a road that probably ends with Senators asking Supreme Court nominees about their sexuality as a litmus test for approval—or denial? Over at The Nation, Richard Kim thinks not:

Sullivan advances the notion that it is legitimate, indeed mandatory, to grill minority (or perceived minority) nominees about their personal experiences and to force them to answer how those experiences would affect their views of the Constitution. It's one of those interesting points where a left-liberal impulse to trumpet diversity (even when it is not actually there) as a value (think Sotomayor) backs into right-wing racial (or sexual or gender) determinism (think, wise Latina blowback). Just once I'd like to see this double-standard—complicated in Kagan's case by the perception that she's in the closet—applied to straight white men. Tell me, Judge Roberts, about your heterosexual life experiences? How do you think your bountiful virility (or lack thereof?) will affect your opinions about privacy?

We may reach that absurd point soon enough. But probably not. Here's what likely to happen as Kagan heads toward a nomination: The White House will continue to deny she's a lesbian whenever the question arises, conservative members of Congress will ask pointed questions about her legal philosophy re gay marriage as a proxy for getting personal, and Kagan herself will keep her lips shut about the lesbian question. And the chattering class will keep chattering.

Jeremy Gantz was the Web/Associate Editor of In These Times from 2008 to 2012. His January 2011 cover story for the magazine, "Terrorist by Association," was selected as a finalist for the Molly National Journalism Award 2012. He is now a contributing editor to the magazine, focusing on labor issues.

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