Is Sexuality the Real Issue in Kagan as Supreme Court Pick?
Fringe right and progressive left, gay and anti-gay: what everyone seems to want to know is whether Solicitor General Elena Kagan, Obama's pick to succeed retiring Supreme Court Justice John Paul Stevens, is a lesbian.
What seemed less than a year ago like a non-issue, with even Republicans and anti-gay groups like Focus on the Family saying that an openly gay candidate would not necessarily be ruled out simply because of his or her sexual orientation, has suddenly blown up into a huge political controversy. The White House has already made a statement that Kagan is not a lesbian, rumors to that effect notwithstanding. At least one fringe-right blog affiliated with Focus on the Family has stated that Kagan is not only a lesbian, but her life partner is prominently out in Washington, D.C. And both radical right bloggers like Pete LaBarbera, who runs the deeply homophobic site Americans for Truth About Homosexuality, and openly gay writer Andrew Sullivan are pushing to the question to be put before Kagan as bluntly as possible: Are you now, or have you ever been, homosexual?
The question has McCarthyesque overtones about it, but both LaBarbera and Sullivan say that "the public has a right to know" whether Kagan is a lesbian, because--they argue--if she is, it will factor into her decision when a case regarding marriage equality eventually lands before the Supreme Court.
And that, suggests New York Magazine in a May 10 article, is what the whole fracas is really about: the rights of gay and lesbian families to be legally recognized and socially honored as, well, families--absolutely on a par with heterosexual couples. The article notes that here, too, radical right and progressive left are in agreement: the Human Rights Campaign, a GLBT equality lobbying organization, doesn't say that Kagan is a lesbian, but it does recount her pro-equality record. On the other side of the issue, Maggie Gallagher--the president of the National Organization for Marriage, the group that produced the much-parodied "Gay Storm" advertisement last year that warned of gays marrying and, in the process, destroying civil and religious freedoms for everybody else--says that if she's confirmed to the Supreme Court, it's a given that Kagan will lend her support to the GLBT civil rights cause.
As New York Magazine points out, it's become received wisdom that Perry v. Schwarzenegger, a GLBT equality case currently before a (reportedly gay) federal court judge in San Francisco, will eventually end up before the Supreme Court. That case, which famously brings together prominent liberal lawyer David Boies and his conservative counterpart, Ted Olson, challenges California's anti-gay Proposition 8 ballot initiative on Constitutional grounds. Proposition 8 was the 2008 ballot initiative that put the then-existing right of California's gays and lesbians to marry up to a popular vote, with the result that gay families were stripped of marriage rights by a razor-thin majority. If the Supreme Court eventually strikes down Proposition 8 on the grounds that it violates the U.S. Constitution's guarantees of legal equality, similar anti-gay constitutional amendments in 29 other states could also be struck down.
Another possibility is that Gill et al. v. Office of Personnel Management, a case in Boston federal court against DOMA, the 1996 anti-gay "Defense of Marriage" Act, which prohibits any federal recognition of same-sex families, might end up before the Supreme Court. With the end of DOMA, who knows but that there might not some day be a federal law that extends marriage equality to all 50 states, superseding state constitutions and their anti-gay amendments?
"A Vote for Kagan = A Vote for Marriage Equality"
It's little wonder, then, that the National Review Online, Gallagher declares in a May 10 op-ed that, "A Vote for Kagan is a Vote for Gay Marriage," and backs up that pronouncement by linking her article to a Human Rights Campaign press release that noted, "Issues that are critical to the LGBT community may reach the Supreme Court in the next few years, including issues related to marriage equality, the 'Don't Ask, Don't Tell' law, the Defense of Marriage Act, and the new federal hate crimes law. When issues like these come to the Supreme Court, it is vital that we have fair-minded judges to rule on these cases."
Notes Gallagher dryly, "HRC and Maggie Gallagher agree: A vote for Elena Kagan is a vote for finding a constitutional right to gay marriage that will overturn marriage laws in every state."
The decibel level ratchets up with Peter LaBarbera's declaration at anti-gay site Americans for Truth About Homosexuality that Kagan should be requited to answer the question, "Are (or were) you a practicing homosexual?" Declares LaBarbera, "If Kagan is practicing immoral sexual behavior, it reflects on her character as a judicial nominee and her personal bias as potentially one of the most important public officials in America."
LaBarbera bolsters his claim that a person's sexuality is a reflection of his or her moral "character" by dismissing "The popular mantra--even among conservatives--...that Kagan's sexuality is 'irrelevant.' " Like Gallagher, LaBarbera warns that, "a Justice Kagan would help decide some critically important constitutional issues dealing with: homosexual 'marriage' as a supposed civil right; religious liberty and freedom of conscience; and the First Amendment as applied to citizens' right to oppose homosexuality."
Implicit in LaBarbera's claim is the presumption that if Kagan were gay, she would be unable to weight the merits of a case involving GLBT civil rights dispassionately. "So it certainly matters if she, as a lifetime judge, could emerge as a crusading (openly) 'gay' advocate on the court," LaBarbera continues, before going on to propose that lawmakers, too, routinely be asked to answer blunt inquiries about their personal lives.
Coming from a different direction, Andrew Sullivan arrives at a similar conclusion, arguing that Kagan should be required to state whether or not she is, in fact, a lesbian. In the May 10 edition of his column The Daily Dish at The Atlantic, Sullivan posits that, "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." Continues Sullivan "In a word, this is preposterous--a function of liberal cowardice and conservative discomfort. It should mean nothing either way."
Sullivan goes on to say that, "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?"
The White House: Protesting Too Much?
Indeed, one point that several media outlets have pounced on is the White House's apparent sensitivity to the issue. The White House has s=issued a statement that Kagan is not gay, but some in the press wonder whether presidential press people might not be protesting too much; a May 11 article at The Daily Caller said that the White House "bristled" when the issue came up, with press secretary Robert Gibbs saying, ""It's not anything I'm going to get into." The article also noted that the White House "pushed back" against an April 11 blog at CBS by Ben Domenech, a noted conservative, who claimed that, if confirmed to the bench, Kagan would be the Supreme Court's "first openly gay justice." (That blog entry has seemingly been deleted, the article noted.)
At the same time, the White House is playing up Kagan's support for the military, evidently in response to right-wing criticism that when she was the dean of the Harvard law school, Kagan refused to allow military recruiters on the Harvard campus. Many colleges and universities have been put into a similarly difficult position, because the military's anti-gay policy, Don't Ask, Don't Tell, dating from 1993, punishes openly GLBT servicemembers with discharge--though, in theory at least, gay troops who keep quiet can serve their country in uniform. That anti-gay policy comes directly into conflict with the anti-discrimination policies that many institutions of higher education have in place.
White House legal counsel Ron Klain told The Daily Caller that Kagan "constantly praised the service of students at Harvard who chose military service in her annual welcome every year. When she went through the statistics on a class she always talked about the number of veterans. She became the first Harvard Law School dean to host a dinner at her house for veterans who were at the Harvard Law school every year on Veterans Day. She spoke to the Cadets at West Point and was praised by the commandant there for her speech and her openness."
A May 11 Associated Press article noted that former Clinton administration solicitor general Walter Dellinger said of Kagan that she "does not have a single antimilitary bone in her body." Though Kagan had allowed military recruiters on campus with the advent of a federal law that threatened colleges and universities with a loss of federal funds, when that law was struck down in court Kagan re-instituted a ban on military recruiters. The Supreme Court upheld the law on appeal, however--and Kagan once again allowed recruiters on the campus.
At least one fringe-right site, Rightly Concerned, has flatly contradicted the White House's claim that Kagan is heterosexual. The site, which is affiliated with the anti-gay American Family Association, characterized the lesbian rumors surrounding Kagan as an "open secret," claiming in a May 10 article that Kagan has a female life partner who is out of the closet. "Well, it's take two to tango, and so the math is pretty easy here," the article says.
A Rockier Road for Kagan
Meantime, the Associated Press has noted that, in contrast to last year's nomination and confirmation of Justice Sonia Sotomayor, Kagan's confirmation is almost certain to be a rockier proposition. With a midterm election coming up, and with the Tea Party having burst onto the national political scene with headline-generating fervor, the climate is now much more adversarial than it was in 2009. Again, it boils down to social issues--which, the AP noted, "gain prominence during judicial debates, [and] could spell the difference in at least a few tight races, perhaps more."
Though questions about Kagan's sexuality are being trumpeted by both sides, the left has said that the spike in attention to the matter is the work of what the HRC's Michael Cole called a "whisper campaign" that came "straight out of the right-wing playbook," according to an April 16 article at the Huffington Post. Added Cold, "Even though the majority of Americans couldn't care less about a nominee's sexual orientation, the far right will continue to be shameless with their whisper campaigns to drum up their base and raise money off of prejudice."
But AOL News reported that the left--indeed, the gay press--seems to have gotten the ball rolling with feverish speculation that Kagan might become the nation's first lesbian Supreme Court justice. Even before last summer's wave of speculation erupted, with news that Obama would have his first opportunity to nominate a Supreme Court justice to replace the retiring David Souter, British GLBT news site Pink News reported in a Feb. 9, 2009, article that Kagan--who at the time had been nominated by Obama to serve as solicitor general--was "openly gay."
The idea that Kagan was a lesbian picked up steam, AOL News said, when American GLBT news site Queerty.com called Kagan a "lesbian former Harvard Law dean" in an April 5, 2010, article. Reader comments posted at sites across the Web became confused with new reportage, blogger and National Lesbian & Gay Journalists Association board member Michael Triplett told AOL News. "People read things and comment, and now comments become fact," Triplett noted. "So one person will write, 'Oh everybody at Harvard knew her and this is the name of her partner.' People were convinced they were reading it all over the place, when in fact only Queerty was reporting it" at the time.
The Domenech blog at the CBS site followed, after which the lesbian rumors went viral.