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Butch on the Bench: Elena Kagan and America’s “Right to Know.”

2010 May 18

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.

7 Responses
  1. May 19, 2010


    Your points are all, of course, well-taken, but I have to challenge you on one assumption. I hold that a jurist’s life-experiences indeed ARE germane to her interpretation of the law. Sonia Sotomayor admitted as much in her obnoxiously over-discussed “wise Latina” remark, as did Samuel Alito, when, in his SCOTUS confirmation hearing, he said, among other like things, “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”

    If one of Mr. Scalia’s children were gay, I submit to you that his views would absolutely be affected (as indeed have Mr. Cheney’s, by his daughter’s homosexuality — Darth Vader himself had this to say on the topic: “As many of you know, one of my daughters is gay and it is something we have lived with for a long time in our family. I think people ought to be free to enter into any kind of union they wish. Any kind of arrangement they wish. The question of whether or not there ought to be a federal statute to protect this, I don’t support. I do believe that the historically the way marriage has been regulated is at the state level. It has always been a state issue and I think that is the way it ought to be handled, on a state-by-state basis. … But I don’t have any problem with that. People ought to get a shot at that.”).

    The President, in articulating his criteria for selecting Supreme Court justices, has consistently mentioned a sensitivity to the real-life effects of the decisions those justices make. Who would seriously argue that a homosexual justice, however conservative, would be every bit as likely to side with Thomas and Scalia as against them on DADT, Prop 8 and so forth? The argument from Sullivan (who is joined notably by Dan Savage in calling on Kagan to discuss her sexuality) is not that such abiding identity-based interests in topical issues of political merit DISQUALIFIES a justice from issuing balanced opinions on such matters. Instead, the claim is that, per President Obama’s specifications, it is important for us to examine all the qualities for which a judicial nominee has been nominated (in Kagan’s case, Obama noted her view, gotten from her time under Thurgood Marshall’s tutelage, that “behind law, there are stories, stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law.”). Her homosexuality, if it exists, is surely one such quality, given the President’s stated standard.

    Being myself a heterosexual (all evidence, of course, to the contrary — it is incumbent upon me to preempt all such jokes, you’ll understand), there are severe limits on the depth of my ability to understand what it’s like to be gay. And far be it for me to demand that anyone reveal intimate details about her life. I just wish to say that the issue of the possibility that a judge’s sexuality (or other identity feature) will affect her legal perspective is complex and worthy of enormous scrutiny.


  2. Genya Shimkin permalink
    May 19, 2010


    Your comments are appreciated, as always.

    I can certainly agree that a justice’s life experiences are important to their legal opinions, but who are we to assume that sexuality is the biggest factor? My homosexuality has certainly placed me on the wrong side of discrimination and thus shaped some of my views, but it has little or nothing to do with my views on abortion, the environment, health care, stem-cells, etc. (It is important to note here that we have never before discussed a judge’s heterosexuality as a factor that would affect legal opinions, so I’m tempted to say it would be the discrimination against the LGBT community- and not the sexuality itself- that would affect a judge’s decisions.)

    In response to your comments regarding Scalia and the hypothetical gay child, I must mention Alan Keyes, who famously disowned his daughter after she came out publicly. He has become no less conservative, no more likely to back any pro-equality measure. His “personal experience of homosexuality” has left his views unchanged. Perhaps Scalia would simply disown a gay child, using his Catholicism (as Keyes did) to justify it.

    Ultimately, while I agree that a judge’s experiences can affect their opinions, I maintain that Kagan is under no obligation to disclose her sexual orientation. If she is gay, and is keeping it under wraps, she must have a good reason for doing so, and who are we to question it? If Kagan comes out in the coming weeks or months, I will be happy to write a piece about what that means to me as a gay woman, what it means for the LGBT community, and what it could mean for America and SCOTUS. And you can hold me to that.


    PS- If Dan Savage were to meet you, he’d be convinced you’re gay. But perhaps it’d just be wishful thinking…

  3. May 19, 2010

    1) It might well be the experience of discrimination versus the sexuality itself. All the same, it’s useful knowledge in formulating a sense about a potential justice — i.e. how a nominee has experienced discrimination is fertile grounds for questioning by relevant parties like Senators voting on the nomination (AGAIN: using Obama’s criteria). 2) Alan Keyes’ disowning his daughter owing to his Catholicism would, I would claim, be a crucial thing to question him about were he nominated to the SCOTUS (Lord help us!) for the insight it would provide us into how he’d adjudicate — this is all about trying to determine a nominees judicial philosophy and predilections, after all. 3) Am I the only one who wants a Dan Savage/Beyonce tour called Savage & Fierce?

    • Genya Shimkin permalink
      May 19, 2010

      Is it going to far to say that what Obama is really saying when he talks about nominating “people who’ve experienced discrimination,” is “don’t expect me to nominate straight, white, men”? I could get behind that.

      If Alan Keyes is nominated to the SCOTUS, I will have no choice but to break into the hearings and make out with his daughter. In front of him. And the entire Senate. I would hope that enough of our elected officials would have the good sense NOT to confirm a man who disowned his child. The level of cruelty in that one act speaks volumes about a person’s moral character, Catholic or not.

      If Savage&Fierce comes to NYC, we’re going. Front row seats.

  4. Matt Hunte permalink
    May 19, 2010

    While it’s obvious that one’s views may be affected by personal experiences, I think that many of those caught up with identity politics and representation on the court are implicitly undermining the concept of empathy. The possible configurations of identity are legion and it is not realistic to expect everyone to get represented. Indeed diversity is often personified by products of the same communities and institutions and connections who are differ only in skin-tone and sexual identity; Regardless of her sexual orientation, Elena Kagan will be yet another Ivy-League educated Jewish New Yorker with great political connections. Not that there’s anything inherently wrong with that but then I don’t have problems with another white heterosexual male being appointed either. As Dahlia Lithwick wrote about John Paul Stevens : “He grew up white, male, heterosexual, Protestant, and wealthy. At no point in time was he a prisoner at Guantanamo Bay or a frightened teenage girl. And yet, over the decades, his rulings and written opinions repeatedly showed us that he could see the world through the eyes of those with very different life experiences from his own. In other words, he tapped his inner “wise Latina woman” when the case called for it, and we are all better for it.”

    • May 19, 2010

      I don’t mean to imply that admirable or liberal jurisprudence REQUIRES a sympathetic biography, but I do think that, if the court were likely to tackle cases whose possible outcomes included the discrimination against Jews or New Yorkers or Ivy Leaguers, all of those topics would be germane to our contemplation about Elena Kagan. That no such cases are likely to arise makes discussing those qualities moot. Homosexuality is not to be included in that list, for the obvious reasons: there is a considerable movement to outlaw the gay, and there are laws on the books discriminating against the gays — this makes gayitude a particularly important identity marker for an aspiring jurist.

  5. Matthew Hunte permalink
    May 19, 2010

    Glenzilla adds some illumination :

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