Quit asking about Elena Kagan's sexual orientation.

Who's winning, who's losing, and why.
April 16 2010 6:00 PM

Don't Ask, Don't Tell, Don't Matter

Quit playing the she is/she isn't game with Elena Kagan.

Elena Kagan. Click image to expand.
Elena Kagan

Elena Kagan isn't a Supreme Court justice nominee yet, but her sexual orientation has quickly become the topic of whispers about whisper campaigns; of a groundless lesbian outing; and then of a strong White House refutation. So goes the life of a shortlister for a Supreme Court vacancy in this age of no-holds-barred 24/7 news/blogs/tattletales. We can't help thinking back, with some nostalgia, to those gentler 1980s days when David Souter's unmarried status caused him no such public grief—even after he was nominated and up for confirmation.

We join the blogger who wrongly outed Kagan in hoping that since the White House has now spoken, everyone will simply shut up, as they should have in the first place, unless they have some evidence to back up their gossip.

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Who is and isn't a lesbian got some play last year, when a group of women were on the shortlist for the Supreme Court seat eventually filled by Justice Sonia Sotomayor. One potential nominee, Stanford professor Pamela Karlan, confirmed that she was gay. The other potential nominees, and Kagan, said nothing at all about the matter. Presumably she thought it was all nobody's business and has held out the hope that the press would respect her privacy. Not this time. First Marc Ambinder made the speculation semi-respectable by couching it in terms of a "baffling whisper campaign" by other people: both gay rights folks and conservatives. Then CBSNews.com posted a piece by blogger Ben Domenech—who blogged for the Washington Post briefly in 2006, until he got pelted with plagiarism charges—who announced that Kagan was "openly gay." To this he soon added an even more inflammatory "correction": "I have to correct my text here to say that Kagan is apparently still closeted—odd, because her female partner is rather well known in Harvard circles."

The White House said, off the record, that Domenech's claim was false and railed at CBS for its poor journalistic standards. Domenech apologized. CBSNews.com removed the offending post (a bad Web practice—better to leave the record of embarrassment intact and write a big mea culpa at the top, rather than trying to pretend it never happened). More on the whole mess from Howard Kurtz here.

Why was Kagan's sexuality blogging fodder to begin with? While he may have done it with the best of ironic intentions, Ambinder described her as "a woman who has short hair, favors pant suits, hasn't married, and doesn't seem to be in a relationship." Wow. Anita Dunn, who is working with the White House on the vacancy, says this is about "applying old stereotypes to single women with successful careers." We have to agree. Name a 49-year-old women with three kids and a hope in hell of making it to the court. There's a reason there are few mommies on that short list. (Judge Diane Wood, who has been divorced and has kids, is an exception.)

Kagan also gets called "gay friendly" because as dean of Harvard Law School, she was a spirited backer of the lawsuit brought by several law schools challenging the Solomon Amendment, Congress' effort to stop the schools from treating military recruiters differently from other prospective employers. (Some schools did not allow the military to interview students on campus because of the inequity of "don't ask, don't tell.") Kagan was one of 40 law professors who signed onto a court brief in the case, making a slightly different argument. Eight other universities filed briefs along with 56 Columbia University law professors and 44 Yale law professors. Are they all of them now disqualified from court service as well?

Kagan spoke out at the time, saying "The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country." Kagan said what many law professors at Harvard—almost all of them, according to her—felt. It doesn't mean she has prejudged whether there is a constitutional right to same-sex marriage. It means she thought denying gay students the opportunity to serve was unfair. The suggestion that this tips Kagan's hand on other gay rights cases that will come before the court is tantamount to suggesting that Ruth Bader Ginsburg should have been disqualified because, as a lawyer working on landmark sex discrimination cases in the 1970s, she had prejudged all "gender" issues.

The White House response to the Kagan flap has some of the hallmarks of a post-racial, post-affirmative-action, post-labels president. Like Obama's new executive order requiring same-sex couples to be allowed hospital visitation, it's couched in the language of equality, not specialness. As James Joyner points out, that order applies to more than just gay partners. It makes it easier for all kinds of unmarried people to see their loved ones when they're sick. Writes Joyner: "it sounds like Obama is ordering a very broad right of hospital visitors to designate whomever they wish be allowed to visit and carry out medical decisions. This will have a disparate impact on homosexuals, of course, but it bypasses the 'special rights' argument that opponents of gay rights typically cite." There's just permission for your own near and dear to visit. In, out, gay straight, nobody gets outed, but everyone gets visitation.

At the same time, the White House may have disserved the cause by making such a fuss about the CBS piece. The real answer needn't be the insistence that Kagan is straight. It should be that it matters not one little bit. Period.

The White House may be hoping that Kagan's sexual preference is a nonissue for most Americans, especially at the moment when anti-gay-rights groups change their message from "we don't want gay-friendly nominees" to "gay nominees are all sinful," as Focus on the Family has just done. Whether or not the strategy works politically, the White House's announcement that Kagan isn't gay should end the matter, unless and until someone come up with some real proof to the contrary. The unfounded insistence that Kagan is a lesbian isn't about lies or hypocrisy (shades of, oh, Larry Craig and John Edwards) or even journalistic ethics. It's about making things up. There's simply no evidence that Kagan's pretending to be anything she's not. The underlying lesson may be that the confirmation wars are so completely toxic that we have come to assume every nominee reflexively lies about everything, up to and including his or her sexuality.

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Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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