Is Elena Kagan a Lesbian? And if she gets on the Supreme Court will she be a sure thing in helping the cause of civil rights for gay people?
The gay blogosphere is full of people asking that question. And they’re not the only ones. Enquiring minds...
But in the land of four-story high American flags (in churches, for example) where we fight each other over whether my daddy’s a better defender of free speech than yours, we are not allowed to ask those two questions. When Elena Kagan goes before the Senate Judiciary Committee the surface “truth” will be that she is to be grilled on her qualifications. The other “truth”, though, is that they will do everything in their power to knock her down if her political ideology does not pass muster. Another thing we can’t say out loud.
I don’t think one can say this often enough – one of the best reasons for voting for a progressive in the White House is that presidents appoint Supreme Court Justices for life. Because America put Obama into the White House in 2008, there is a real chance that for the first time in history we will have three women on the bench. This is good news not just to women, but to anybody keeping track of the gradual transfer of power in this country from white Christian males to people who represent America’s diverse population groups. If nominated, she would be only the fourth female justice in history and the eighth Jewish justice.
We all give lip service to the position that identity must always take second place to merit qualifications for the job. Right. It’s true, diversity is a legitimate goal only when all other things are equal. When the candidates are among the most qualified people in America, regardless of sexual, racial, or other identity. Anything short of that would lead to a backlash that would put the concept of equal rights in jeopardy. But if you’re a Jew, tell me you’re not delighted to see a second Jewish person on the Court. If you’re a woman, tell me you’re not delighted to see a third woman.
And if you’re gay?
How are you supposed to feel if you’re gay?
We can know she’s Jewish and female. We can know her age. We know so much else, like whether she fits the unstated expectation that justices attend either Harvard or Yale (she does). But we are not allowed to know whether she’s a Lesbian.
Why not? Because we are not free to be openly gay and lesbian yet in this country. For her to acknowledge being gay, if indeed she is, would be to sabotage her appointment. Closetedness is fast becoming a thing of the past, but not at the top levels yet. Nobody can trash you openly for being Jewish, female or black anymore, but gay? Hang on. We’re getting there. Just not today.
Elena Kagan is a Barack Obama kind of person, known for having a consensus-building style. Some of her positions are arguably right wing-looking. She is in favor of increased power to the Executive Branch, although there are suggestions people calling her conservative here haven't fully understood her argument. More clearly conservative is her support for “battlefield law” – the argument for detaining terrorist subjects indefinitely without trial - which showed up in her confirmation hearing for her current job as Solicitor General.
Mostly, however, she appears to favor progressive causes. While dean of the Chicago Law School, she led efforts to rescind the Solomon Amendment, which forced colleges to allow military recruiters on campus. Because the military has this discriminatory Don’t Ask/Don’t Tell policy, she argued, they should instead be barred. Actually, she went further than that. She called the Solomon Amendment “…a moral injustice of the first order.” In writing, no less. That puts her solidly on the left, and makes her a hero to gay people.
In a perfect world, the question of whether she is a lesbian or not would be at the level of gossip, and no decent person would touch it. But we don’t live in a perfect world. We live in the United States of America, a democracy still in the making, where homosexuality has replaced communism as the issue nearest and dearest to the hearts of conservative America, now firmly in the hands of religious fear-mongers. The Berlin Wall fell and both the Soviet Union and China embraced capitalism. Communism no longer worked to get Americans to support authoritarian rule. One day it’s better to kill Viet Cong in their own country “so we don’t have to kill them in our back yard.” Next day it’s, “Oh, look, Martha. It’s the homosexuals coming to destroy Western Civilization.”
With any luck, most mainstream Americans will follow the Don’t Ask/Don’t Tell policy still in force with the military. They will consider poking around in her private life a no-no. Not something nice people talk do. Ironically, given Elena Kagan’s outspoken opposition to Don’t Ask/Don’t Tell, this should make her life a lot easier, since she has made it known she has no interest in discussing her sexuality or her personal relationships. Like with Condoleezza Rice (whom the right left alone, of course) we are left to wonder what exactly the difference is, actually, between a lesbian and an unmarried female workaholic.
Also jumping on the is-she-or-isn’t-she bandwagon is Gordon James Klingenschmitt, the chaplain drummed out of the Navy because he didn’t like the military’s insistence that public prayers should not exclude non-evangelical Christians. He has issued a “Conservative Action Alert” on Kagan.
The American Family Association, one of the religious right’s major mouthpieces, has declared: “The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court.” Another mouthpiece, the Americans for Truth, is actively pushing for her to be interrogated on whether she is a lesbian, since “(i)f Kagan is practicing immoral sexual behavior, it reflects on her character as a judicial nominee…”
Now this means there are three horses in this race: the “classic liberal” one, ridden by both progressives and conservatives who insist Ms. Kagan’s sexuality is nobody’s business but her own; the gay liberationist one, by people who agree with the liberals in the classical sense but are secretly hoping she’s “one of us” so we can feel optimistic about getting this country to climb up out of this hole where the “lie about who you are or we’ll fry your ass” policy has pretentions of decency under the name of Don’t Ask/Don’t Tell. And the horses climbed up on by fine American gentlemen like Gordy (Action Alert) Klingenschmitt and this George (how was I supposed to know the guy I picked up on rentboy.com was a hooker) Rekers, co-founder of the American Family Association, who see the homo-sek-shu-wells as Satan’s Storm Troopers. Even when they are ladies in professor drag at Chicago Law School and working as a dean at Harvard.
Pack a picnic basket, come early and get a good seat, it’s going to be one hell of a circus.
But don’t assume what you hear the Senate inquisitors say will be what they mean. Proponents of the Don’t Ask/Don’t Tell deception can hardly demand Ms. Kagan tell all, now can they? Consistency is not a game too many politicians play, but if they don’t play it here, they’re going to look like witchhunters. Going on about the link between homosexuality and immorality will get votes, no doubt, but it’s also a great way to make an ass of yourself in front of television cameras.
Those fellows aching to get their Confederate money out of storage may be dying to ask “You’re a middle-aged chubby woman who has never married. I guess that means you’re a Lesbo?” But they can’t. Can they?
Such a delicious irony that the Don’t Ask/Don’t Tell policy applied to the military, which Ms. Kagan has spoken out against so articulately, may now be working in her favor. Indirectness is the order of the day. Don’t nobody say nothing that gives him away. Hide. Dissemble. Scatter dust in their eyes. “Tell the truth,” said Emily Dickinson, “but tell it slant.”
We’ll be listening closely to the testimony and looking for clues.
I’d like to think Obama is finally getting around to doing gays the favor he promised so long ago. Wonder if that’s what he has in mind, the old fox. Sphinx. All that hotshot rhetoric, but you never know what he’s really thinking.
Clues. Keep your eyes out for clues.
Wonder what color his tie was when he made the announcement about putting this maybe Lesbian on the court…