Is it Appropriate to Ask if a Potential Justice is Gay?

First published at 365gay.com on May 21, 2010

“Are you, or have you ever been, a homosexual?”

From the moment President Obama nominated Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens, observers have been itching to ask her some version of this question—or as I’ll call it, The Question.

For the time being, The Question has subsided. Instead, it has been largely replaced by a meta-question: is The Question even appropriate to ask?

When commentators as disparate as gay-rights advocate Andrew Sullivan and the virulently anti-gay Peter LaBarbera, president of Americans For Truth (About Homosexuality), agree on something, it’s noteworthy. And both agree that asking Kagan The Question is appropriate.

LaBarbera writes [https://americansfortruth.com/news/if-elena-kagan-is-a-lesbian-she-should-say-so-because-public-has-a-right-to-know.html],

“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….Besides, 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.”

And here’s Sullivan [https://andrewsullivan.theatlantic.com/the_daily_dish/2010/05/so-is-she-gay.html]:

“[Whether Kagan is gay] 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.”

Sullivan adds that since gay-rights issues will likely come before the Court, “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.”

Strange bedfellows, indeed.

Notwithstanding her short haircut, her penchant for cigars, her enjoyment of softball, and the fact that she’s requested her judicial robe in flannel (okay, I made that last one up), no one has found solid evidence that Kagan is a lesbian. This, despite relentless efforts from across the political spectrum to do so. If she is, it certainly isn’t the sort of “open secret” some have claimed.

So, should we just come out and ask her?

It’s tempting to give one of the two easy answers to this question, which are

(A) It’s nobody’s damn business, and certainly not relevant to her nomination,

or

(B) Sure—why not? It’s 2010, and not such a big deal anymore.

The right answer is more complicated.

On the one hand, every Justice, like any other citizen, is entitled to some zone of privacy. Of course their private experiences might affect how they rule. But we need to be careful about getting on that slippery slope, lest we turn confirmation hearings into witch hunts.

Moreover, in a questionnaire for her Solicitor General nomination, Kagan rejected the idea that there is a fundamental constitutional right to same-sex marriage—as have some openly gay constitutional scholars. So her being lesbian, even if true, wouldn’t guarantee any particular ruling on the specific gay-rights issues likely to come before the Court. Constitutional jurisprudence isn’t the same as personal policy preference.

On the other hand, her being a lesbian would give her a unique perspective on the Court, and could certainly influence the other justices in a positive way. As Justice Antonin Scalia once said of Justice Thurgood Marshall (the first African-American justice), “He wouldn’t have had to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.”

And Sullivan has a point when he suggests that treating a person’s (actual or possible) lesbianism like some dirty little secret is ultimately no more palatable than treating her Jewishness that way. Doing so smacks of complicity in the closet, which Sullivan rightly condemns as an awful relic.

Unfortunately, that awful relic—and the reasons for it—have hardly disappeared. And one need look no further than the ranting of folks like Peter LaBarbera to see why.

In defending The Question, Sullivan writes that “a revolution in attitudes has occurred” on gay issues. But Sullivan’s use of the present-perfect tense (“has occurred”) is misleading. That revolution IS OCCURRING, and it’s far from complete.

I’d love for lesbianism to be as much of a non-issue for Supreme Court nominees as Jewishness. The fracas over Kagan’s personal life makes it clear that we’re not there yet.

Meanwhile, if I were a Senator at her confirmation hearings, I’d say “There has been much speculation in the media about your personal life. Is that anything you wish to comment on?” Then I’d step back and let Kagan handle it as she sees fit.