Yesterday morning, I came across this post on Renew America's webpage, in which the author assumed Elena Kagan is gay:
My main argument against adding a homosexual to the bench is simply this. That individual would have already made up his (generic use) mind on one of the central public policy issues of they day, whether homosexuals deserve special rights or just the equal rights the rest of us have.
Everyone is supposed to be equal under the law, but with a homosexual on the bench, gay activists would be more equal than others. They'd have a vote in the bag before oral arguments were ever presented. This is hardly sporting, and hardly fair if justice indeed is supposed to be blind.
It was written by some toy homophobe (wind him up and watch him spout nonsense), and I'm guessing he'd never wonder if a heterosexual would be biased in a case that involved heterosexual participants or heterosexual sex, or question a Christian judge's ability to decide freedom of religion cases.
Of course, it's not like there aren't gays who think the same thing from the other side, that someone's sexuality means that they have to think or believe certain things. Which means that there's going to be some speculation coming from folks like, say, Andrew Sullivan, who's on a mini-quest to find out:
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.
Instead of speculating about whether she's gay, Sullivan's asking if she's a closet case, saying that her sexuality matters so little that someone just has to ask her about it. It's a slightly different question, and the more cynical among us might wonder if it's simply another path to the same conversation. Talking about how famous people have sex is, indeed, America's #1 past-time.
In the process, he's fallen on the biggest stumbling blocks identity politics warriors encounter: being a minority doesn't make someone any different than anyone else, black people and gays and transgender men and Vietnamese women can all achieve and do anything a straight, white, Christian man can, but, on the other hand, it makes people sensitive to x, y, and z issues and means they have to feel a certain way about certain topics. It reminds me of the times I've seen someone who's a minority express an opinion contrary to that group's general thoughts - suddenly she's "self-hating," "not really" gay or black or whatever, and worse than the biggest hater out there.
The White House has said that she's straight, and at this point there's no evidence to the contrary, no ex-partner talking to the press and no speeches to the LGBT student union talking about her coming out... unless her singlehood and butchness count as evidence.
Moreover, I don't think Obama would nominate an LGBT person to the Supreme Court. He just doesn't have the balls. He didn't even nominate an LGBT person to the cabinet, so I would expect him to have a change of heart and nominate one of us to the most powerful and highest profile position to which he can nominate people.
Obviously a gay person on the Supreme Court would be better for us than a closet case, considering she'd be a sign of inclusion and another queer person who shows young people that they don't have to be ashamed of who they are and straight people that we can work just as hard as anyone else. Plus, with the recent slew of homophobes getting outed, we're our own worst enemy, especially when we're not out.
But a gay justice wouldn't necessarily make decisions that we'd like. Someone's sexuality may influence, but it doesn't determine people's views on issues, even LGBT issues like marriage and DADT. That's especially important since her personal opinion on same-sex marriage isn't supposed to be important to her job, just her interpretation and application of the Constitution.
If the goal is to know how she'd rule on LGBT issues, all one has to do is ask. As she was asked about marriage during her previous confirmation:
a. Given your rhetoric about the Don't Ask, Don't Tell policy--you called it "a profound wrong--a moral injustice of the first order"--let me ask this basic question: Do you believe that there is a federal constitutional right to same-sex marriage?
Elena Kagan answer: There is no Federal constitutional right to same-sex marriage.
I suppose one could find other ways to read that, and that she could be persuaded to think differently if a case arguing otherwise came before her, but, really, that's a lot more informative than knowing whether or not she's an out lesbian or a closet case or straight.
The real problem is that we know so little about her views on many of these issues, legal and otherwise, and considering how much power the Democrats have in Washington right now it's rather disappointing that we're having to read tea leaves on such an important decision.
But I wouldn't be all that disappointed by that marriage answer. Kagan's going to have to recuse herself from Gill and Olson and Boies will be lucky if they lose with a 7-2 decision.
Still, the reason the right is calling her a lesbian is clear: they don't want her to be confirmed, or at least they don't want her confirmed without an embarrassing fight. It's ironic, considering that she's was probably nominated so as to placate the right and have an easy confirmation.
But there is no placating these people. You give them a Supreme Court nominee who doesn't care about diversity, is sympathetic to banksters, and who is OK with expanding executive power, and they call her a dyke. It's how they roll.