Butch on the Bench: Elena Kagan and America’s “Right to Know.”
In response to all of the media traffic about Elena Kagan’s sexual orientation, my father recently asked me, “Why is it that if a woman gets to be 50 and successful without a husband, we assume she’s gay?” It’s an excellent question. In Kagan’s case, it likely has to do with her hair, her preference for pantsuits, that softball photo, and the complete lack of a personal paper trail. Even Sonia Sotomayor triggered some gaydar after her nomination, but she had been married to one man and been engaged to another, so she was able to brush off the gay rumors. At the end of the day, a judge’s sexual orientation should not be an issue that plays any role in the confirmation process. Of course, by our nature, we are curious. We want to know. And someone may even gather up the balls to ask her directly, but we absolutely DO NOT have a right to know anything about this woman’s private life.
I don’t think Elena Kagan would be confirmed if she were an out lesbian. This country isn’t ready for it yet. There are too many people with loud voices and lots of peons who would simply not allow it. She could very well be gay. She could also be straight. Or asexual. Or bisexual. Or pansexual. The point is that none of this has anything to do with her ability to make decisions on legal matters, and it is ridiculous to think that we have a right to know. This discussion also points to an excruciating level of sexism. While the personal life of never-married justice David Souter intrigued many, and led to a few ponderings of his sexuality, he hardly generated the attention that Kagan is getting, and she’s only just been nominated! And because straight, white, and male is the default demographic of Americans, it’s never assumed that a single man is unmarried because he’s gay. So why do we assume that Kagan is gay? And why would it matter if she were? Or are we just worried about having three women sit on the court simultaneously?
Peter LaBarbera, from the group Americans for Truth About Homosexuality (it has “truth” in its name, so you know it’s legit), demanded that Kagan address the rumors, saying “…in an era of ubiquitous pro-gay messages and pop culture celebration of homosexuality, it’s ridiculous that Americans should be left guessing as to whether a Supreme Court nominee has a special, personal interest in homosexuality. Given the important homosexual-related issues coming before the Supreme Court, Kagan should say so if she has a personal interest in lesbianism.”
First of all, where are these “ubiquitous pro-gay messages,” and how did I miss them? In Maryland, we’re celebrating a new survey showing that 48% of registered voters support marriage equality. Forty-eight percent is hardly ubiquitous. There are 29 states where I could be fired just for being gay. (If I were transgender, that number jumps to 38.) States continue to vote down marriage equality. The Archdiocese of Washington DC recently pulled its social services contracts in protest over the district’s approval of same-sex marriage. I hardly think we can claim this as a time of ubiquitous pro-gay messages.
Second, it is not ridiculous at all that “Americans should be left guessing” about the personal lives of our elected officials, judges, and political insiders. It is impossible for us to know everything about the people that are charged with upholding the constitution, as evidenced by how often they let us down (I’m looking at you, Spitzer, Stanford, Rangle, Edwards…). Antonin Scalia has nine children. Statistically, that means at least one of them is gay, but is it appropriate to ask that question? Absolutely not, because it has nothing to do with his interpretation of the Constitution. Would we ask Samuel Alito if he prefers boxers or briefs? Would he be more liberal if he chose the latter?
Third, what is all of this about a “personal interest in homosexuality”? Dick Cheney has a gay daughter; does that give him a “personal interest in lesbianism”? What about my employer, who values my contributions at the office and has no interest in firing me over my sexuality? This idea is the most offensive of LaBarbera’s. Does Clarence Thomas have a personal interest in blackness? Does Ruth Bader Ginsburg have a personal interest in Judaism? And so what if a judge has a personal interest in a particular area? Would we disqualify a judge who lost a parent to Parkinson’s Disease because of a potential opinion on stem-cells? Isn’t it their different backgrounds, experiences, and personalities that make the group interesting? There are currently five Catholic justices on the bench. We could certainly argue that their religious beliefs are far more relevant than sexual orientation insofar as it affects their political opinions and court decisions.
Those who have decided that Kagan is gay- or at the very least, highly suspect- rely very heavily on her appearance, her stance on “Don’t Ask, Don’t Tell,” and her lack of a male partner. Are we really still so hung up on stereotypes? Obviously the answer is yes. Kagan wears her hair short and prefers pantsuits (though she was recently photographed in a skirt, perhaps in response to the rumors)- the ultimate lesbian one-two punch. Are we really prepared to block a potential court justice because she doesn’t like dresses? Or is it just that we’re concerned about confirming a woman who doesn’t conform to a traditional gender role? Is it that she’s not sexy enough? I mean, Scalia is not exactly a hottie. But he’s a man. Powerful men don’t need to be attractive. Powerful women do.
As Dean of Harvard Law School (the first woman to hold that position), Kagan blocked military recruiters from campus over the policy that forbids gay and lesbian servicemembers from serving openly. Her opposition to this discriminatory policy is being paraded around as if it were proof of her homosexuality. Barack Obama and Defense Secretary Robert Gates both support the repeal of “Don’t Ask, Don’t Tell.” Are we going to call them gay now? Support for the repeal of a discriminatory policy is a sign of empathy, a characteristic that Obama has stated he values, especially in a justice. As for her lack of a male partner, she has clearly failed to meet the requirements of modern womanhood, making her unfit for the bench. Maybe she chose career over romance. Maybe she had her heart broken and never loved again. Maybe she has a female partner that she is trying to protect from all of this attention and scrutiny. Either way, we don’t have a right to know. Kagan is entitled to some level of privacy. If one of Antonin Scalia’s daughters had an abortion, it would be a huge scandal and would, among conservatives, call into question his dedication to the anti-choice cause. But he would be under absolutely no obligation to address the rumors. It is a private matter, just like one’s sexuality. (If this were to happen, I would, admittedly, want to know.)
It should also be noted, that as Dean of Harvard Law School, Kagan gained praise from both Democrats and Republicans as a person who had the unique ability to navigate partisan issues on campus (with the possible exception of the DADT issue), handle personality conflicts on the staff, and pilot the school. When she was selected by the Obama administration as Solicitor General, she had the support of some of liberals’ biggest enemies: Orrin Hatch, Lindsay Graham, and Tom Coburn backed her nomination. These three are very likely (if not certain) to block her confirmation to the court. As Solicitor General, she was in the background, whereas on the Supreme Court she would be more visible and have more individual power to direct policy. This undoubtedly terrifies the GOP (read: straight white men). Many of her opponents have also claimed she’s unfit due to her lack of experience as a judge; it’s important to note here that her experience is comparable to Thurgood Marshall, who Kagan worked for, and who himself broke a barrier when he was nominated.
Not surprisingly, some of the calls for Kagan to come out have come from within the LGBT community. Andrew Sullivan, who blogs for The Atlantic and was outed against his will about 10 years ago, is among them. He argues that “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 fact, after The Washington Post published a piece claiming she is gay, the Obama administration quickly called on them to pull it, stating definitively that Kagan is NOT gay. Also, Kagan’s Jewishness is not controversial; she wouldn’t be the first Jewish justice.
I can certainly appreciate the belief- advocated by Harvey Milk- that coming out is necessary for maximum visibility and effect. By staying in the closet, we perpetuate the stereotype of the self-hating gay, afraid to be different, to challenge the status quo, to refuse to exist in a heteronormative world. I get it, I do. But coming out is too big a risk for some; it could cost you your family, your job, your stability, your peace of mind. The decision to come out is a highly personal one, and while we can muse and rumor-monger all we want, at the end of the day, it is Kagan’s decision whether or not to address these rumors. Do I wish we had an openly gay Supreme Court Justice? Absolutely. After all, there are 9 justices, and if statistically one in seven Americans is gay (admittedly a contested statistic), there should be a gay justice. While I think an openly gay woman would have a much better shot than a gay man, I still think coming out would be too high a risk for Kagan. And I think she knows it. Of course, if she is confirmed, she can come out the next day and no one can do a thing about it. So maybe she’s just planning to keep mum until she’s confirmed.
Last week, Newsweek ran a piece called “Straight Jacket” by gay writer Ramin Setoodeh, who argued that gay actors were terrible at “playing straight.” His article drew the ire of world class fruit-fly Kristin Chenoweth, whose current co-star Sean Hayes was singled out by the author. Chenoweth pointed to a time when Jewish actors changed their names in order to get roles. I would go a step further and point out that straight actors have been playing LGBT characters (and winning Oscars for it!) for decades. Have you seen “Philadelphia,” “Milk,” “A Single Man,” “Boys Don’t Cry,” “Monster”??? Setoodeh argues that personal experiences make it hard for gay men to convey attraction for women, while straight actors with no personal experience of homosexuality win Oscars for kissing their same-sex costars; it’s seen as “brave.” Have you ever heard anyone say Sean Penn has “homosexual privilege”? No. But the discourse around “heterosexual privilege” and “passing for straight” is contentious. We can’t jump down Kagan’s throat for passing as gay or straight because we don’t know her disposition. My point here is that gender performance and sexual orientation are highly personal, and not as simple as “she acts gay,” or “she can’t pass for straight.” We don’t know her personal history, so how can we possibly claim she is acting one way or the other? Maybe she’s straight and “brave” for wearing short hair and pantsuits. So Kagan might be playing straight. She might also be straight. The point is not how convincing she is or looks.
Certainly, if Obama (whose relationship with Kagan dates back to his time teaching law at University of Chicago- where that dreaded softball picture was taken) knows that Kagan is gay and is helping her keep it under wraps, it would fit his pattern of small, incremental steps toward inclusion and equality for the LGBT community. While some members of the gay community have complained that Obama has not followed through on his campaign promises to gay Americans, we can’t deny certain steps in the right direction. A recent executive order on hospital visitation for same-sex partners is the most recent example of a non-controversial step toward equality. Studies show that even among those who oppose marriage equality, hospital visitation is largely supported. Obama chooses carefully before handling LGBT issues. He waited until public opinion had sufficiently shifted before pushing for the repeal of DADT, and he has appointed a number of gay staff members and advisors. However, he has not yet taken any major steps toward the repeal of the Defense of Marriage Act. Maneuvering a dyke onto the court would be another small victory for Obama’s gay agenda. If it works. And if she’s gay.