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.

Elena Kagan. Click image to expand.
Elena Kagan

Should we ask Elena Kagan whether she's gay? Should we demand an answer?

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

Inquiring minds want to know, and not just on the right. "Is Supreme Court Nominee Elena Kagan Really a Lesbian?" asks Gawker. "So Is She Gay?" wonders the Atlantic's Andrew Sullivan. "Did Ms. Kagan bring a date to your wedding?" a reader presses The New Yorker's Jeffrey Toobin. And these are just the overt inquirers. Thousands of others are buzzing online. My colleague Jack Shafer points out that two of this week's most popular Google searches are "elena kagan husband" and "elena kagan personal life."

Sullivan compares sexuality to religion. Whether Kagan is gay, he writes,

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. And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.

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It's an instructive comparison. Let's go back and look at the last time a Supreme Court nominee tried to hide his religion. That nominee was Robert Bork.

In July 1987, shortly after President Reagan nominated Bork, Time reported that Bork had been "raised a Protestant" but had "married a Jewish woman" and, though remarried to a Catholic, was "now an agnostic." Democratic activists in the South pounced on this report, charging that Bork had "doubts about God" or "doesn't believe in God."

What followed was an excruciating inquiry  into Bork's beliefs and religious associations. The Long Island Jewish World asked Bork whether his children had been raised Jewish. Bork replied that they ''were raised with free choice.'' The reporter asked him whether the kids defined themselves as Jewish. Bork said that some of them did but were "non-observant.'' As to why he had married a Catholic ex-nun after his first wife died, he could only say, "I don't divide the world up in that way. I didn't marry my first wife because she was Jewish or my second wife because she is Catholic."

By September, Bork's handlers knew the agnosticism charge was killing him. At his confirmation hearings, he tried to put it to rest this way:

I don't want to go into my religious beliefs, but the report in a national magazine that I was an agnostic arose from the following conversation, and the reporter agrees that it rose from the following conversation. He said, ''You're not terribly religious, are you?'' And I said, ''Not in the sense you mean.'' That's it. … And I later denied that I was an agnostic, in The New York Times, when I got a chance to. I took him to be talking about regular—you know, great piety and regular church attendance, and that's what I meant. … But agnostic does not come out of that conversation in any way and I am not an agnostic, but that's as much as I think I should say about it.

The Time reporter who had interviewed Bork, David Beckwith, was dragged out to explain the "agnostic" label. Beckwith said that in their interview, Bork had conceded that as an adult, he had never belonged to a church. Yes, Beckwith said, Bork had called himself a ''generic Protestant'' with religious notions that were ''more philosophical than emotional.'' But Bork's friends had told Beckwith that Bork was agnostic.

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.

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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