Alex Blaze

Is Elena Kagan gay? A sexy mystery

Filed By Alex Blaze | May 11, 2010 1:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Andrew Sullivan, Democrats, Don't Ask Don't Tell, Elena Kagan, lesbian, LGBT, marriage, nomination, nominee, republican, supreme court, Washington

Yesterday morning, I came across this post on Renew America's webpage, in which the author assumed Elena Kagan is gay:elena_kagan090218.jpg

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.


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Margaretpoa Margaretpoa | May 11, 2010 1:23 PM

I don't know, nor do I much care if she's gay but it should be pointed out that she told Cornyn that she didn't believe that same sex couples have a right to equal treatment under the law via the United States Constitution.

Margaretpoa Margaretpoa | May 11, 2010 1:26 PM

Oops! You did note that! Should have read further before I got all commenty on ya! ;-)

If Kagan is "hiding" the fact that she is a lesbian, then it does hurt our efforts because she (and the White House) believe it needs to be hidden – like a defect or disease.

If the risk is filibuster, we would (in the long run) be better with a "filibustered lesbian," than lies or encouraging the "closet."

The "L" question is going to be asked. They should be preparing to answer it, instead of denying it. Most people who simply see a picture of Kagan conclude that she's a lesbian, fairly or not.
Having a lesbian on the Supreme Court is less important than having an honest, authentic conversation about her, including her sexuality – that IS part of who she is.

If she is not confirmed because she is gay, that's the reality of life in America. But hiding the "stigmatized" fact that she is gay only promotes and perpetuates the problem. We should always choose pride over shame.

The stigma doesn't end until we confront it – not hide it. None of this encourages "coming out," it suggests more hiding.

Hiding who we are (for any reason) hurts us all.

If the risk is filibuster, we would (in the long run) be better with a "filibustered lesbian," than lies or encouraging the "closet."

I don't agree - some of our biggest champions in history have used the closet to gain power or fame before coming out and advocating for gay liberation. Ellen, Elton John, Barney Frank, etc., wouldn't be who they are today without the closet.

Bill Perdue Bill Perdue | May 11, 2010 2:34 PM

"Barney Frank, etc., wouldn't be who they are today without the closet."

That's exactly correct, although nor the reasons you seem to think. The closet, specifically the political closet of the Democrat Party warps those in it and teaches them the arts of betrayal.

That's exactly what Frank did when he gutted ENDA and organized a vicious campaign against trans people. That what he did when he opposed the NEM March on Washington, opposed Newsome's SSM initiative in SF and defended the use of vile anti-GLBT lies by Obama's DoJ in its repeated court arguments in favor of Clinton's bigoted DOMA and DADT.

Thats why we call him a Quisling.

A. J. Lopp | May 12, 2010 11:08 AM

I like the version of that historical word that the late John Dentinger suggested: He's not a Quisling, he's a queersling.

I would love it if, in the fullness of time, that term would catch on for a closeted gay Uncle Tom. Personally, I don't think Barney Frank deserves the label ...

... but the political world is full of closeted faggot sell-outs who do. Roy Cohn was the quintessential example, and he will go down in history as such, thanks to Tony Kushner's Angels In America.

Bill Perdue Bill Perdue | May 12, 2010 12:03 PM

The relevant feature of Roy Cohn's not particularly unique blend of self-loathing homohating and betrayal of the GLBT communities was his use of bigotry to foster his political career. First as Joe McCarthy's pimp and then in his longer pimping career as a lawyer and influence peddler.

That was mid twentieth century and our political fortunes have since greatly improved by our movement's own efforts. As communities we've fought and won great battles. Politicians and the courts occasionally legalize and validate our struggles and that's good on the rare occasions when it happens but we don't owe them squat as a result.

Especially not thanks, as if they'd done the fighting for us. Once in a blue moon will a politician take the lead. And only then because they're hustlers, permanently campaigning. An example was SF Mayor Newsome who opened the door for same sex marriage in California.

That applies particularly to Barney Frank. He did some service earlier introducing legislation before but now he's a consistent roadblock to struggle, opposing mass action and direct action, gutting legislation like ENDA to appease big business and rightists in both parties. He's endlessly self promoting in Congress, most of whom are bigots or pander to bigots. That self promotion leads to sellout compromises that cut across promoting the struggle for equality. His deliberate attempt to split our movement with vile attacks on transfolk is nothing less than treason.

Cohn blocked the road to equality in the 1950's and later and Franks doing it now.

SkepticalCidada | May 11, 2010 2:52 PM

Hey, I actually get to agree with AndrewW on something. He's exactly right on this one.

The proof is in the White House's offensive response to the first suggestion that Kagan might be gay: declaring the "charge" to be a "lie." That's the dysfunctional language of stigma.

We would be much better off with a rejected lesbian than a closeted appointment. Actually, I'm not so certain an open lesbian would be rejected. Either way, we would benefit immensely from the national conversation.

I really don't think that we'd benefit from her being grilled in the Senate and watching her break down in front of Jeff Sessions, telling us all the horrible secret she kept.

I'm also thinking more about the straight women I know like her - around her age and never married - and it does strike me as somewhat insulting that they'd be called lesbians for nothing other than to derail their careers. I guess I'm just not reading the White House language, which was defensive but not really bizarre, as anything other than them not wanting to see this confirmation derailed. Is their a touch of implied homophobia there? Yeah. But that doesn't make Kagan gay. Her saying she's gay (or someone coming forward with real evidence) does.

And I find it more than a little hard to believe that with all the people with axes to grind in Washington and Cambridge that no one is willing to just say that they know she's a lesbian. I could be wrong and maybe we'll be hearing about it soon. Who knows.

I think you miss the point Alex. The White House lied or chose to "cover up" her sexuality. They denied vehemently that Kagan was "gay."

If the other side produces evidence (or even doubt) the issue won't be whether or not she IS gay, but rather that the White House chose to lie or deceive the public. That ends her chances, NOT her sexuality.

Either way, WE lose.

P.S. I've spent a good portion of my life in Boston. We ALL know about Kagan. We just do. It's NOT a secret.

I disagree. I don't think we live in a wonderful place with a nice, brave, gay-loving Senate that'd be just fine with confirming a lesbian. I guess we can't know since there hasn't been a president willing to try to get an out lesbian confirmed to the cabinet, much less the Supreme Court, but that's just the feeling I get.

Plus now some of her friends are talking to the press and saying she straight.

http://www.politico.com/blogs/bensmith/0510/So_shes_not_a_lesbian.html?showall

It is, of course, entirely possible that the White House got to them and told them to lie to cover up Elena Kagan's sexy secrets.

To me, the more interesting question is if it's appropriate to ask a public figure if they're gay. I say no, but not for the usual reasons.

First off, it's clear that there's a strong cultural bias against asking someone about their sexual orientation, and that bias is caused by homophobia. The actual things you like to do in bed are private, but who you're interested in going to bed with is not. The gossip about who likes who stretches from kindergarten to nursing home, and although it might be embarrassing if some affections are known too soon, eventual public acknowledgment is expected as you become a couple; far from considering romantic relationships a private matter, we encourage people to publicly celebrate them through marriage. A campaign of silence surrounding sexual orientation is an obvious impediment to this process, and there would be no reason for that silence to exist if not for the homophobia in our society. Because of this, every gay, straight, or bi person who's comfortable being open to questions about their sexual orientation is a small victory against homophobia.

However, we don't have the right to enlist an unwilling participant into this fight. When you ask a public figure: "Are you gay?" they either have to stand up against the homophobic standard that it's inappropriate to ask such questions, or they have to duck it, look weak, and fuel speculation about what they might be hiding. Defying homophobic mores leads to increased opposition by the bigots and subtler disapproval by the non-bigots who've been cowed into submission that particular issue; this makes getting asked if you're gay a lose-lose proposition for people who haven't already gone public about it.

There's some argument to be made that anti-gay bigots don't deserve any consideration, but Elana Kagan clearly does not fall into that category. It would be great if she was open about her sexual orientation, whichever it is, and she invited questions about the subject. However, there are costs for taking a stand against homophobia and we do not have the right to force her to pay those costs.

To me, it would be very beneficial for her to say she was str8, if she is. One of the big issues is the whole rigid gender system in our culture, and its impact on GLBT folks.

It seems to me that having str8 ppl who are sex role non-conforming come out and say, "Yes, I am not stereotypically feminine, but hey, I like guys, and I have no desire to be a man," would make some difference in the stigma GLBT ppl face in expressing non-stereotypical gender expression.

SkepticalCidada | May 11, 2010 2:54 PM

I can't agree--precisely because she is a public figure. Indeed, not only is she a public figure, but she is seeking to become one of the highest judges in the land. While her being a lesbian wouldn't be relevant to her ability to do the job, her dissembling about being a lesbian, in my opinion, would be relevant.

The wind-up homophobe said:

"whether homosexuals deserve special rights or just the equal rights the rest of us have."

mhmmm, if only we did have the 'equal rights the rest of us have'...

I know, I saw that post and I was just like... so. much. wrong. with. this. But I decided not to respond yesterday. There's really nothing to say.

Well one thing is certain. If she is appointed she will have to wear a dress in court just like all the male justices do.

Well, hopefully she wont also grow a beard, or all the business of the country will come to a screeching halt while everyone panics and argues over which restroom she should use...

If she is gay, I hope she comes out soon. I'm in the process of coming out to friends and family, and seeing an out and proud Supreme Court Justice would have been huge for me. She has the power to help so many people see themselves in a more positive way, and to reinforce to bigots just how plentiful and ordinary and boring we are-- just how NORMAL we are. If she's gay and she doesn't come out, what kind of message is that sending?

Kathy Padilla | May 11, 2010 3:48 PM

"But I wouldn't be all that disappointed by that marriage answer. Kagan's going to have to recuse herself from Gill and Olson"

Nah - she'll just apply the Scalia precedent. "I ain't gonna recuse myself from conflicts or when I previously appeared to pre-judge the case - and no one can make me after I'm on the SCOTUS".

http://www.washingtonpost.com/wp-dyn/content/article/2006/03/27/AR2006032701913.html

http://www.cnn.com/2004/LAW/03/18/scalia.recusal/

If anyone asks her during hearings if she is a lesbian, she should retort "Senator, how big is your penis?" Then they will know they have stepped over the line.

I personally don't see the reason why this should be a big deal. I don't feel that a public figure needs to reveal thier sexual orientation. If they do come out, then that's great for them. Their decision has very little consequenses on myself.

I believe in the argument that sexuality of the public figure should not be my business, UNLESS the individual makes an effort to make MY sexuality THEIR business (i.e., the case of Larry Craig or the recent reports of George Rekers).

Wendy Weinbaum | May 11, 2010 8:41 PM

As a Jewess in the US, I say that sure, the White House has DENIED she is a lesbian. But the White House also said Obama has shown us his birth certificate. NOPE!

People are assuming she's a lesbian because she fits that stereotype that's too ...what's the word...unintellectual? shallow? to mention.

In the early days they called such women witches.

Now they call them lesbians to try to ruin their career.

This is not some deep philosophical or political question. It's as shallow as it gets.

Asking this woman if she's a lesbian is just another way of saying "She's ugly."

For a discussion of the Kagan discussion in light of some of President Clinton's nominees in the early 1990s, see

http://lawprofessors.typepad.com/conlaw/2010/05/the-specter-of-a-lesbian-supreme-court-justice.html

A. J. Lopp | May 12, 2010 10:54 AM

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 expect that this answer tells us almost nothing, considering that the rules of marriage are legislated at the state level. It doesn't even tell us whether Kagan would support or vote against DOMA, since she did not say anything (here) regarding her interpretation of the Equal Protection Clause or the Fair Faith and Credit Clause.

In other words, she did the smart thing: She gave a non-binding and overly simplified answer because she didn't need the controversy that a full discussion would precipitate.

Federal nominees, Supreme Court and otherwise, have this act pretty down pat.

Bill Perdue Bill Perdue | May 12, 2010 12:29 PM

Kagan may have done the "smart thing" career-wise but her evasions leave us scratching our heads and wondering, as always with Democrats, "Is she with us or against us."

We don't know for sure but the Democrat Party remains defined by DADT and DOMA so it's unlikely.

In the last election Obama and characters like Daughtry, Kaine, Biden and Dubois made it abundantly clear that they were bigots well before the election and still GLBT Democrats greeted them with reverential hero worship while projecting their own LGBT agenda on career politicians who don't give a rat's ass about us.

Given that level of delusion even when it's clear we're dealing with bigots, I think the least Kagan could do was to take a principled stand as opposed to a career building move.

"toy homophobe" I am SO appropriating that for my own. See you in word court! ;)