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July/August 2010

It’s Nobody’s Business if Elena Kagan Is or Is Not Gay

By Kellye Whitney 05-12-2010

When I heard that Elena Kagan was a Supreme Court nominee, my first thought was, President Obama is serious about bringing some diversity and new blood into that particular mix; good for him, good for us.

But then I learned there is a controversy brewing about whether or not Kagan is gay. She’s unmarried and of a certain age, and there have been rumblings about her possibly being gay since college. Big sigh, people — huge, disgusted sigh, actually.

Now, everyone knows I do not claim to hold any higher-level politico-type thinking, and I certainly haven’t read all of the stuff floating around the Net about this topic. But to me, the issue here is simple. Why should Elena Kagan have to answer that question in the first place? Whose business is it if she’s gay or not? Even if she gets on the Supreme Court and presides over a case with gay subject matter, her personal business should remain irrelevant.

“Well, people have a right to know.” No, they don’t. No more than a white male judge has to inform people that he once stole a pack of gum as a child and therefore is ineligible to preside over cases involving larceny. No more than a black female has to inform people that she has a fake hairpiece that she wears for weddings and therefore can’t preside over a case involving a syndicate of terrorists kidnapping women and then scalping them for profit.

And yes, I chose those ridiculous, fictitious examples deliberately because sometimes the puritanical attitudes we hold in this country, hell, anywhere, are ridiculous. The things we get hung up on, and demand that others reveal because it’s somehow our right to know, are ludicrous.
Whether or not this woman is gay is her business. I don’t care about her being in the public eye or in a public office. People have legal rights to their privacy. I will not accept, as the Atlantic’s Andrew Sullivan suggests in his May 11 post The Borking Of Kagan, that “when we enter public life, we surrender certain things.” I refuse, even though I know that is usually the case. It’s practically impossible to keep a secret these days, but it can be done. You can at least make a damn good effort. And as long as it does no harm, it’s your right to keep your business your business.
If anything deserves notice, it’s the fact that a woman or man of a certain age, who is not or has never been married, is forced to deal with these kinds of personal questions. As though there is something intrinsically wrong with someone who has chosen not to follow societal conventions or prescribe to an accepted stereotype — that being married is somehow necessary to be viewed as whole.

I mean, if Kagan did answer the question, opening this particular controversial door would lead to follow-up questions from hell. Sullivan, who actually disagrees with my stance, attests to that fact: “… being out in the mass media before I was in my mid-twenties, all but forced to acknowledge intimate details of my own health and sex life, pummeled for my religious faith or lack of it, analyzed in every personal way imaginable, exposed by right and left depending on the political uses of the time. I wouldn't wish that on anyone. It still stings. I have scar tissue where my heart used to be.”

If Kagan is gay, she’s not wearing a rainbow or otherwise trying to make any kind of statement. As far as I know, she has comported herself professionally and suitably for the seriousness of the position for which she is now being considered. Allow people to be individuals. Allow people some dignity, some privacy, and if and when the situation poses a problem, let’s trust that someone nominated to a Supreme Court judgeship will A.) be able to maintain objectivity and judge a case on legal merit — it is, after all, the job — and B.) will know when to step down or pass a case along to someone else.