Sexual Politics and the Supreme Court

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Solicitor General Elena Kagan, the woman who tops President Obama's short list for the Supreme Court, is the subject of a baffling whisper campaign among both gay rights activists and social conservatives: those whispering assume she's gay, and they want her -- or someone -- the media! -- to acknowledge it.

Why gay rights activists? Because Kagan is a public figure and her appointment would represent an enormous advancement for their cause. And social conservatives? Because she'd fit neatly with their narrow paradigm about gender non-conformity and with their overall suspicion that Obama aims to radically re-engineer society. So pervasive are these rumors that two senior administration officials I spoke with this weekend acknowledged hearing about them and did not know whether they were true. People who know Kagan very well say she is not gay, but that's not the point: why is she the subject of these rumors? Who's behind them? And what do they tell us about politics?

Human beings tend to conflate sexual orientation and diversity within gender. A woman who has short hair, favors pant suits, hasn't married, and doesn't seem to be in a relationship must be a lesbian. (It is ironic and disheartening that the first female solicitor general ever isn't enough of a woman for some people.) Former Attorney General Janet Reno and current Homeland Security Secretary Janet Napolitano are victims of this confusion. They're victims, not because being gay labeled bad, falsely or otherwise, is shameful, but because the intention behind the labeling is often nefarious and stereotypical. Gay groups want to appropriate and use these public figures to advance a cause, and conservatives, many of them, consider homosexuality and gender non-conformity to be fundamental character flaws.

Kagan hasn't made matters any easier for people who don't see nuance. She is an active and open supporter of gay rights. This might mean that she'd trigger a filibuster in the Senate because Republicans like Jeff Sessions consider vocal support for gay causes to be extreme. Kagan charmed Sessions on her way to becoming solicitor general, but Republicans may well argue that even having expressed a position on a gay rights issue that will likely end up in court -- such as same-sex marriage -- is disqualifying. The trick there is that the default position is not having no position -- it's tantamount to opposing same-sex marriage. 

Given the confusion and rumors about Kagan's sexuality, the issue is bound to come up. It's tough for the media to cover, because reporters have trouble writing openly and honestly about a very contested subject, and because they don't want to appear to be outing anyone. There's no consensus within "The Village" about whether sexual orientation is a private matter -- or about when it becomes a public matter. 

Once it does come out, though, distinctions immediately dissolve into the basic cultural liberal-conservative arguments, which many Americans seem to have grown tired of. It's hard to have a rational discussion in an atmosphere dominated by shrill and self-interested voices.

As the New York Times noted, it used to be that Supreme Court politics was dominated by religion. There was a Jewish seat, a Catholic seat, a few Protestant seats. Then people stopped caring about it, largely because Americans stopped making these categorical distinctions.

We're not there yet on gay issues. And maybe we shouldn't be, given Obama's criteria: he wants to pick people who empathize with a broad spectrum of Americans and their experiences.  Gay people qualify, and so being gay theoretically isn't a non-issue for Obama: it could be, if he truly means what he says, a positive good. Yet it's doubtful that openly gay potential nominees like Stanford's Pam Karlan consider their sexuality germane to their judgment or want to be considered as the "gay" voice on the court.

So everyone is confused. Ideally, we wouldn't ask the question because it matters to no one. Less ideally, though it matters to gay rights groups and social conservatives, we'd not ask the question because it shouldn't matter. But are we at the point, right now, where being gay doesn't matter?

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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