Supreme Court Nominee Elena Kagan is a 50-year-old lawyer who has never married and has no children. At least once in her past, she also evidently played at least one softball game. Those are the known facts. The speculation, of course, has been all over the map about what those facts might mean or imply -- and how that would influence the rulings she might make on the bench.
As a 48-year-old single woman who's never married and has no children, and who has not only played a game or two of softball in my life, among many other athletic activities, but who also flies airplanes (which, really, puts softball to shame in terms of overtly masculine activities) ... my first response is to sigh, roll my eyes, and say, "no comment."
I've been peppered with questions about my marital status (and, by implication, what must be wrong with me to cause it) for so long that I've gotten tired of answering. Why is it anyone's business? And why does it matter? Do we ask why married people chose to get married? Was it for the "right" reasons? Or because of massive insecurity? Dysfunctional needs? Fear of being alone? Because of giving in to society's pressures about what "normal" is? Given the divorce rate, not to mention the number of unhappy or philandering marriages out there, being "married" doesn't really say anything more about someone's emotional health or "normalcy" than being single. It doesn't even, by the way, prove anything about a person's sexual orientation. But I'll come back to that.
In my own case, the reason for remaining single was simple. I learned, early on, that being in the "wrong" relationship could easily stifle my voice, and my ability to be all of who I wanted to be. So I decided that I would remain single until or unless I met someone with whom I felt I could be all of myself -- who "got" who I was, valued intimacy and connection, and who was strong and healthy enough, themselves, not to be threatened by my weaknesses, strengths, or career aspirations.
I recognized that those requirements narrowed the field considerably. I also recognized that my choice meant that I might never have children -- but having children with the "wrong" partner seemed like a nightmare proposition anyway, so I let that one go. Having children is not the only way to find fulfillment, connection, or creative meaning in life, or even to have impact on the world. Every choice involves trade-offs, and there are experiences, friendships, and projects I've been able to explore and work on because of being single that I wouldn't have had time to do if I'd been a parent.
So it is entirely possible that Elena Kagan's singlehood stems from a similar choice and life path. "Ah," skeptics answer, "but what if it doesn't? What if it means she's actually gay?"
My first response is to shrug and say, "So what if she is? How is that any more relevant than if she's single because she just hasn't found the right guy yet?" Frankly, I don't want to know what any of my friends -- heterosexual or homosexual -- are doing behind closed doors.
The implied assumption behind that question, of course, is that if she's gay, she will give preferential treatment to gay rights advocates, or will be "biased" in her potential rulings on laws related to gay citizens. And, therefore, it's not only important that we know, but we actually have a "right" to know.
I've pondered that one quite a bit, the past few days. Because the answer is not as simple as those on either side might like it to be.
To wit: I believe Chief Justice Roberts was either naive or disingenuous when he argued, in his confirmation proceedings, that his rulings would be perfectly neutral, like a baseball umpire's. If the Constitution contained clear-cut rules that simply needed to be applied, and could be verified by an instant-replay camera, there would be no need for an appellate court system or even a Supreme Court to rule on various other judges' "interpretations" of the law. The law and constitution do not -- in fact, cannot -- spell out exact answers for each and every given situation. So the letter and intent of the law has to be interpreted against the details of any given case.
That's relevant, because humans are not impersonal supercomputers. Our individual life experiences actually do impact how we interpret not only the law, but the world. A white male whose only experience with minorities involved drug dealers who broke into his childhood home is going to have a different lens on the world than a minority male who grew up battling unjust arrests by a mostly-white police force. We inherently understand the positions of those who are like us in a way we don't understand the life experiences of others.
By the same token, our perspectives are also impacted by a million life experiences that molded us -- even if we aren't consciously aware of the causes. If a family member was once killed by a drunk driver, it might influence our views on personal rights versus community responsibility. If our parents struggled trying to make a small business succeed, it might influence our attitudes about business owners' rights and concerns versus those of labor. If we were abused as a child, it could color our basic understanding of parental or children's rights. As a film General Electric once showed its employees to try to improve teamwork across generations said, "We are what we are because of what we were, when."
We are all a product of our life experiences. And our assumptions, beliefs and the lenses through which we interpret the world are a product of those experiences, as well. The idea that a Supreme Court justice can become an automaton unaffected by any of that is, as I said, either naive or disingenuous.
So if Elena Kagan were gay, would that give her a particular perspective on the experiences of a gay person? Sure. But so could having a good friend who was gay. And that one area of understanding is only one of thousands that her life experience is going to affect.
The relevant question is, will Kagan's particular life experiences make her unfairly biased in her decisions? That is a fair question -- but only so far as it's asked of every nominee to the Supreme Court. Because every single one of them brings a particular set of life experiences and understandings to the bench. And if the presumption is that a justice cannot see beyond her own experiences to a fair reading, interpretation, and ruling on the law, then no justice is qualified to rule on any case that goes beyond their own experience and demographic category. Justice Roberts, by that reasoning, could only speak for straight, white men, Justice Thomas could only understand black men, and Justice Sotomayor would always rule in favor of straight Latino women. Of course, a married justice might actually be a closet homosexual, which would disqualify them from cases on both counts.
However would we know? And given all of those limitations, how could we ever come up with an acceptable nominee?
What we should be interested in is not the particulars of any nominee's personal life -- which I actually believe they have a certain right to keep private -- but whether they: a) have an awareness that their life experiences have given them a particular lens on the world that is not neutral or universal (a test that Justice Roberts would have failed) and b) can view a situation through lenses other than the ones they know personally and make a good faith effort to weigh competing rights or harms, taking into account precedent, law, constitutional intent, and "fairness" -- whatever that may be.
In short, while a potential justice's personal life or sexual orientation can certainly influence her innate understanding and experience in the world, it is no more relevant than thousands of other factors in her life experience. Factors we could never really get to the bottom of, even if we were willing to open that Pandora's Box in the confirmation process. We can ask nominees' views on the law, and we can ask how they intend to balance their own understanding with the rights and views of others whose experience is different than their own. But to single out a person as questionable because she isn't married -- even, or especially, if the base concern is sexual orientation -- while leaving married people's personal lives alone, and not pursuing all the formative experiences and private beliefs a nominee brings to the table (or bench), is discriminatory by the mere fact of its selective focus. It's also the wrong question to ask.
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