Should we know whether Elena Kagan is gay?

It is not unusual for the marital status of nominees to the US Supreme Court nominees to be noted, for example Sonya Sotomayor (divorced) and David Souter (unmarried), there is a bigger question surrounding the personal life of Elena Kagan: is she gay?  Blogger for The Atlantic, Andrew Sullivan (who himself is openly gay), argues we have a right to know:

So Is She Gay?

It is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.

In a word, this is preposterous - a function of liberal cowardice and conservative discomfort. It should mean nothing either way. 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? Does she have a spouse? Is this spouse going to be forced into the background in a way no heterosexual spouse ever would be? A reader asks Jeffrey Toobin the obvious question:

From the description of your relationship with Ms. Kagan, I would bet that you have some insight on the claims of her sexual identity. One month ago there were reports that Ms. Kagan was gay and those reports were quickly followed by stern - offensive? - rebuttals by the Obama administration. This is apparently a big deal even though we aren't supposed to talk about "it." Mr. Toobin, did Ms. Kagan bring a date to your wedding? Why can't we discuss this matter? If she were married - to a man - there would not be silence. Would there be if she were married to a woman? Would she be nominated if she were?

To put it another way: Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth? In a free society in the 21st Century, it is not illegitimate to ask. And it is cowardly not to tell.

Read it here.  In a follow up post, Sullivan then looks at the reaction of some conservative groups to Kagan's nomination:

Right Wing Watch rounds up reaction from the rump. Tom Minnery of Focus on the Family clarifies the stance of social conservatives:

Kagan's nomination is a triumph for liberal ideology and judicial activism. She has never been a judge, nor written a judicial opinion. In fact, she has very limited experience in the actual practice of law. Her resume reveals her to be an academic who has served liberal judges, liberal presidents, and liberal universities. Her entire career has been lived in a narrow slice of the judicial spectrum. Even with her sparse legal record, one thing stands out—her emotional and legal commitment to the LGBT agenda.

American Family Association and Americans For Truth are a tad more direct:

It's time we got over the myth that what a public servant does in his private life is of no consequence. We cannot afford to have another sexually abnormal individual in a position of important civic responsibility, especially when that individual could become one of nine votes in an out of control oligarchy that constantly usurps constitutional prerogatives to unethically and illegally legislate for 300 million Americans.

The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?

The days are past when this could be brushed under the rug. Let's have an honest debate, can we? The way to counter prejudice is through truth - not avoidance. For the right to oppose Kagan merely because she is gay - if she is - would be one more step toward their self-destruction. By staying mum, the Obamites may be playing yet another rope-a-dope. I just cannot see how in 2010, ambiguity is an option. I mean: who would claim that John Roberts' heterosexuality is somehow private? It is a demonstrably reported fact that there would now be no Protestants on the court - just Catholics and Jews. Why is this not an invasion of privacy, if asking someone about their sexual orientation is?

Read it here.  Finally, Sullivan then responds to Slate's Hanna Rosin, who, in a post for the XX Factor blog, argued the question should not be asked:

Hanna Rosin rules the question out of bounds:

As our own Emily Bazelon and Dahlia Lithwick pointed out last week, unless anyone comes up with actual proof that Elena Kagan is a lesbian—and NO, this is not an invitation to go hunting—the whisper campaigns and the whisper campaigns about the whisper campaigns should end. Whether that stops people from endlessly Googling “Elena Kagan” and “gay” is another story.

But, as Hanna notes, the president himself, by virtue of his criterion of picking Justices who have diverse experiences and have experienced discrimination, has already alluded to private facts about Kagan's life:

Law was not just an “intellectual exercise” for her, but something that affects the “lives of ordinary people.” Behind the law, he said, she understands that “there are stories of people’s lives.” This naturally led into a little biographical sketch of Kagan. We learned that she is the granddaughter of immigrants, that she comes from a family of teachers, and that neither of her parents is still alive.

Is Hanna really saying that a person's sexual orientation in today's society is less of an issue than the fact that she comes from a family of teachers or is the grand-daughter of immigrants? Please. The premise is absurd on its face.

Did Obama shy away from Sotomayor's ethnicity? So why is it somehow unseemly or a function of "whispers" to ask an obvious empirical question to which there is an empirical answer?

By the way, Hanna. I am not whispering. I am asking in the same voice and with same decibels as I would ask any question of a public official who may, in fact, rule at some point on the very constitutional grounds of my own civil marriage. The only thing that could conceivably put this question into the zone of "whispers" and "privacy" is homophobia - and yes, that means the homophobia of liberal journalists.

In fact, the entire premise of Hanna's post is that there is something wrong with asking someone in the public eye about their sexual orientation. There isn't. This is not the same thing as "outing" people. It is simply asking them to tell, and refusing to be co-opted by double standards. Kagan can refuse to answer; or she can tell the truth, whatever it is, and move on. Those are her options. But the press has only one professional option: to ask a factual question that deserves a factual answer.

But they won't. Of course they won't. There is almost a competition to refrain from asking - so as to burnish one's reputation for seriousness and integrity.

Read it here.

The reason I have reproduced all of Sullivan's posts on the topic is that I think he makes a compelling argument.  That said, I am very uncomfortable with the idea of "outing" anyone.  A person's sexuality is inherently a private and personal matter, and I think it is the prerogative of that person to decide to come out, if and when he or she feels comfortable doing so. 

(As an aside, I also think the position Sullivan takes is very easy for someone who has already come out and is openly gay.  Often I think there is an insensitivity among gay and lesbians who have already come out towards those who, for whatever reason, are yet to do so.  Ultimately I think that attitude is unfortunate and ultimately unproductive.  The gay, lesbian, bisexual and transgender community is better served supporting, instead of judging, one another.)

Nonetheless I think the issue of whether we should know whether Elena Kagan is gay is a difficult and interesting question, and my own thoughts on the matter are far from resolved.  I would be interested to know what you think.  Leave a comment on the blog, or post your thoughts on Facebook and Twitter.

PS. Slate's Jack Shafer approaches this issue from a slightly different perspective in "I Wish Elena Kagan Were an Uncloseted Lesbian":

The reason I advocate the nomination of a qualified homosexual is this: Only by sending one through the meat grinder of Senate confirmation—as we have with Catholics, Jews, blacks, women, and a Latina before them—can we begin to purge identity politics from the court. (Yeah, we're probably still in a time when there must be "black" and "female" seats on the court, but give it time.) By nominating a qualified gay to the court, the president would create an environment in which—eventually, I hope—a nominee's sexual orientation is given the same shrug we give nominees' religion, gender, race, or state of residence, and the nation will be better for it.

Hear, hear!  Read more here.

And don't forget to let me know what you think.

Comments

[NigelStobbs]

For my money Obama has zero credibility on LGBT issues after the back down on the don't ask don't tell policy. The whole concept of labelling people as having a certain sexual orientation is something which I find bizarre and contrary to sociological and anthroplological doctrine. Gender identity roles and sexuality are fluid characteristics in many species and in most human cultures. Fair enough if a person wants to identify with a particular subculture or community of like minded/oriented people, but the claim that a person needs to 'come out' in the sense that they have some integral sexual orientation is, I think, spurious. To then elevate the non-debate to considerations about high public office such as the Supreme Court bench is just childish. The claim that we could have any public institution free of identity politics, however, is a bit naive in these post-modern times.

[Legal Eagle]

I'm not a fan of "outing" people - it's up to them really. I don't see that it's at all relevant to her skills as a judge.