Apparently, she isn’t. Friends are now confirming that Supreme Court nominee Elena Kagan is a straight woman. Allrighty then.
Why was this such a big deal? Part of me wonders when we’ll all grow up. There are a few reasons, I guess, that this was so interesting to people — none of them very good:
- There are folks who think that, had she turned out to be gay, it would have been an automatic disqualifier. I have a whole bunch of issues with this, but the biggest is this one: even if you were to accept homosexuality as deviant behavior, as this group does, it punishes an easily-known behavior over a host of deviancies that either cannot be known or are difficult to find out. We really have no idea what the sexual peccadilloes of the other justices are, nor do we seem to want to know. Moreover, when a heterosexual deviancy is suggested, as it was in the case of Clarence Thomas, these same folks are the first to rush in to defend. If that was none of our business, then neither is this.
- There are others who worry that, because it’s possible that the issue of gay marriage might come before the court, having a gay justice would unbalance the court. But wait: (a) why wouldn’t it be the case that it would balance the court? If we want the court to rule justly and honestly, we should want both sides of issues to be argued aggressively and skillfully to the court, and by the court. It’s the basis of our system. Our country’s worst courts have been homogeneous ones; the notion that even this diversity would be a good thing in the court has to at least be considered. (b) The question of how a gay justice might rule on an issue involving homosexuality isn’t a foregone conclusion — it might very well depend on the issue before the court (and the law relating to that issue). In fact, it should. Note the result of Lemons v. Bradbury for en example of this.
- Probably worst of all, there are those who would have used such a thing to score cheap political points — look how radical this President is. I haven’t the words for the kind of scumbaggery that would do this. It demeans a capable legal scholar, it politicizes the court (even more than it already will be), and in any case it’s diversionary and mean-spirited. These folks (on both sides) are killing our country right now.
- On the other side of the equation, there are those who were interested as a matter of pride. One can certainly imagine that gay Americans would have been tremendously pleased to be able to hold up Elena Kagan as a shining example for her intelligence and accomplishment. We can see why they might want to do that, even why they might want a person who has been private about their sexuality forever to “come out.” But even this is wrong: it messes with the twin demands of pride and privacy that have been important for so many years to gay people. It has always mattered that people be able to say what they want to say, when they want to say it, and to whom they want to say it, on their own initiative. Maybe there’s a right time. Maybe there never is. The privacy of that decision, and the personal autonomy of it, matters. As it always has.
Well. In any case: now it doesn’t matter. But it’s not pretty that it did for a while there.
