Sex, religion, and Kagan's right to privacy.

How you look at things.
May 11 2010 6:58 PM

Don't Bork Kagan

Sex, religion, and a nominee's right to privacy.

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The unease about Bork's faith grew so loud in the South that Sen. Howell Heflin, D-Ala., began his remarks at Bork's confirmation hearings by discussing the allegation "that Judge Bork is an agnostic or a non-believer." Heflin said that the Constitution forbade inquiries into Bork's religious views. But Heflin showed his true feelings later, when he voted against Bork and explained to Alabama radio stations in a recorded statement: "I was further disturbed by his refusal to discuss his belief in God—or the lack thereof."

Heflin wasn't alone in using Bork's religious unorthodoxy against him. Rep. John Bryant, D-Texas, accused the Reagan administration of deceiving "many well-meaning and concerned religious groups" into thinking "that the appointment of Bork, an agnostic who is not a member of any church, would somehow be consistent with and advance their beliefs." Sen. Bennett Johnston, D-La., in voting against Bork, told his colleagues,

I am not one to bring up any religious test for judges. I simply mention that because there are so many right-to-lifers, people with whom I agree, there are fundamental religious people who look to Judge Bork as if he is some savior on this question. And I say that they should look, in addition to what he has written, at his statements on morals or lack thereof—and I don't mean to suggest he is immoral—but his lack of occupation with morals and with religion.

This was easily one of the most disgusting episodes in the history of Supreme Court nominations. And it took place only 23 years ago. Yes, tolerance of sexual and religious differences has increased since then. But is it safe, even today, to seek confirmation to the court as an open agnostic or deist, much less as a homosexual? And if the suspicions about your sexuality or agnosticism are mistaken, can they ever truly be put to rest? Bork tried to do that while maintaining some semblance of religious privacy. He failed.

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Sullivan argues that sexual orientation is a legitimate subject of inquiry because it affects judicial rulings:

Since the issue of this tiny [gay] 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.

But Bork's critics made the same argument during his confirmation process. Their view, according to Heflin, was that Bork's religious "beliefs will affect the opinions of the courts and hence, our churches, our synagogues, and, ultimately, our lives. … [I]n determining the fitness of a nominee, they argue, one must look to the total man—his reasoning process and the reaches of his values and views."

What happened to Bork is a warning to any of us who would press a nominee to divulge her faith or sexuality. It's a portrait of how grotesque our country can become in its determination to expose and pick at the personal lives of public figures. The political threat is that unconventional sexuality or religion can destroy the nominee. But the moral threat is far greater. In the act of forced disclosure, "one's ability to describe oneself, one's freedom to say who one is, is peremptorily taken away," a great essayist once wrote. At stake is the most fundamental of human rights: "the ability to choose who one is and how one is presented, to control the moment of self-disclosure and its content."

Andrew Sullivan wrote those words 19 years ago. They were eloquent and true then. They are no less so today.

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