Monday, May 10, 2010

Can Justice be Gay?

We know that Justice is Blind. Can she be gay?

There is speculation that Elena Kagan, nominated to be the next Justice of the Supreme Court may be gay. Part of this is the usual speculation about the sexuality of unmarried women (which I find very offensive, myself).

And part of it is the expectation that only straight white Christian men can be objective. Somehow, it is assumed that a minority, a woman, or a gay person can't see the world apart from their membership in those groups. (Our friend Mike in TX has some examples of how being straight, male Christians can lead to its own judicial perversions.)

So there is some fuss when the White House seems upset at a rumor last month that Elena Kagan may be a lesbian. (Hint: the proper response to a rumor is, "so what?")

And then the American Family Association of stupidity and bigotry comes out with this (quoted via Andrew Sullivan, I will not link to a hate site):
With an active homosexual on the bench, Lady Justice will no longer even pretend to be blind. She will be peeking out from under her blindfold to determine the sexual preference of those standing before her, then will let the fold slip back into place before ruling in every case to legitimize sexual deviancy. Bottom line: the American ideal of absolute equality before the law will inevitably be shredded by a homosexual judge. Neither the Constitution nor the American people should be subjected to that kind of judicial malpractice. We can and should expect more from those who occupy seats on the highest bench in the land...
Next, replace the word "gay" with "Christian" and "sexual preference" with "religion" and see how offensive that really is.

Now the AFA has updated its comments (H/T RightwingWatch; I will not link to hate sites):
Speculation continues to swirl about the sexual preference of likely Supreme Court nominee Elena Kagan. She is apparently out to her friends and others in her academic and social circles, but not out to the public at large.

The White House has flatly stated that she is not gay, which could prove a tad embarrassing if the open secret of her lesbianism is confirmed at some point. ...It's time we got over the myth that what a public servant does in his private life is of no consequence. ....The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?
I don't care if Kagan is gay or not. (If she were, I wish she were out, but that's another issue). I DO care that rightwingnuts are somehow pretending that orientation is a litmus test. It would be offensive for faith, or race, and it's offensive for sexuality.

UpdateAndrew Sullivan writes:
And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.

In a word, this is preposterous - a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority - and the right of the huge majority to determine its rights and equality - is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified.....

To put it another way: Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth? In a free society in the 21st Century, it is not illegitimate to ask. And it is cowardly not to tell.
And From Slate:
Whether or not the strategy works politically, the White House's announcement that Kagan isn't gay should end the matter, unless and until someone come up with some real proof to the contrary. The unfounded insistence that Kagan is a lesbian isn't about lies or hypocrisy (shades of, oh, Larry Craig and John Edwards) or even journalistic ethics. It's about making things up. There's simply no evidence that Kagan's pretending to be anything she's not. The underlying lesson may be that the confirmation wars are so completely toxic that we have come to assume every nominee reflexively lies about everything, up to and including his or her sexuality.

Kerry Eleveld at the Advocate puts it away: Not Gay.


June Butler said...

IT, if Kagan is gay, then she needs to come out of the closet now. I don't care if she's gay or not, but if she is a closet gay, I care. Maybe it should not make a difference to me, but it does. Kagan is in the spotlight now, and there is not much in her life that will remain private. If she's a lesbian, the secret will come out sooner or later and make her look bad for hiding her sexual orientation.

IT said...

I agree to some extent. The closet becomes self-perpetuating--and you can't blackmail someone over something that's not a secret.

But at another level, it should be irrelevant to discussion, and in no way disqualifying, any more than her faith, hometown, or handedness matters.

Basically it matters if we LET it matter.

James said...

It's amazing that "they" admit justice is not blind. Lady Justice will no longer even pretend to be blind.

I do agree that if she is lesbian, she needs to come out on her own because the right wingnuts will drag her out.

But, it doesn't and shouldn't matter.

June Butler said...

IT, I agree that whether Kagan is a lesbian, or not, should be irrelevant, but in the real world that we live in, it is not.

JCF said...

I disagree. She only HAS to come out, if SHE has ever said she's not gay (when she actually is). OR if she's with someone (of the same sex, obviously!) now.

Otherwise, it's desirable---but her own business.

Daniel Weir said...

Last year when Justice Sotomayor was nominated I wrote something for my blog about the lie of context-less judgment. ( I think we always bring our contexts to any decision we make and I suspect that those who don't recognize that fact are most likley to let their contexts unduly influenced their decisions.

IT said...

We cannot escape who we are, certainly. What peeves me i the right-wing assumption that only gays, blacks, women, or atheists have any baggage, while assuming that straight white male Christians somehow are not influenced by their race, sex, orientation, or religion.

Barry Fernelius said...

Let's do a little thought experiment. Kagan is a lesbian -- or she's not. Let's first suppose that she is not a lesbian. In that case, the White House response makes perfect sense, and there's no potential for a problem.

If Kagan is a lesbian, you should be asking yourself why Obama has chosen to say the she is not. One possibility: if this whole nomination blows apart for other reasons, Obama has a way to save face in this situation. ("Honestly, I didn't know!") If the nomination process goes smoothly, but it is later discovered that Kagan is a lesbian, Obama can shrug his shoulders and say, "If that's your only objection, you don't have much of an argument." He can use the situation as an effective weapon against his small-minded enemies.

And if you think that's cynical, consider this. Kagan may be the sort of person who would help to devise a strategy like the one I described.

I know it's a stretch, but think like a politician!

IT said...

Well, I think you may be right, Barry. I think Obama plays that kind of game, and Kagan is a very calculating person. Obama would never nominate an openly gay person, and Kagan is of a generation (my own) that learned to live in the closet to get ahead.

Of course I eventually learned that the closet is not a healthy place to be, even if it is somewhat safer to be in it.

David Brooks' column today looks at the rise of those who plan carefully and don't ever state an opinion.

Barry Fernelius said...

IT, thanks for the link to the article by David Brooks. He did a great job of describing a trend that I've found to be disturbing as well.

I'm a middle-aged white heterosexual guy who grew up in Wyoming. Homosexuality was reviled by nearly everyone where I grew up, but through my relationships with gay friends, I've come to realize that the closet is a terribly destructive place to live. If Kagan is a lesbian, let's hope that she can muster the strength to do the right thing, both on the bench and in her life.

Daniel Weir said...

Although I think the closet is not the best place to live, I find the assertion that Ms Kagan, if she is a lesbian, must come out a bit disturbing. It reminds me of the assertion that Mrs. Clinton must divorce her unfaithful husband. People make their own decisions about how to live their lives and I'm willing to let Ms Kagan's sexual orientation remain a private matter.

IT said...

I actually do not advocate outing people (I wish they would do it for themselves) and I don't think I or anyone else has said she MUST come out, just that, if it is appropriate, we wish she WOULD.a

Because frankly , if a gay person is not out, that says that there is something shameful to them about being gay.

But my main point of the post was the attitude that people of minority groups even if onlhy supposed somehow cannot be just. As though the majority doesn't have the equal context for bias.

June Butler said...

It reminds me of the assertion that Mrs. Clinton must divorce her unfaithful husband.

Daniel, not quite the same, or so I believe. But it's Ms Kagan's call.

I'm beginning to believe that the plan is for Kagan and the White House not to address the matter at all. If the press finds evidence that Ms Kagan is, indeed, a lesbian during the Senate hearings or after she is confirmed, they will say, "So what?" And we may have a gay justice slipped in by stealth, so to speak, not the way I would choose, but I don't get to choose.

I'm a bit wary of Elena Kagan for other reasons which I don't have time to address right now.

IT said...

Mimi, she's no progressive, and I don't like replacing Stevens, who is a fearless voice for liberal values, with someone more calculatingly cautious and centrist.

June Butler said...

IT, exactly. It's no surprise that right-leaning centrist Obama would choose someone like Elena Kagan.

IT said...

What I don't understand is how the right wing considers Obama so liberal. He's not! On the other hand, given what the Maine TeaParty did to the Republican platform there, maybe it's all relative.

June Butler said...

IT, the right wing will say anything. The goalposts have been moved so far to the right that there is hardly any left left.

Meanwhile at Huffington Post "Elena Kagan's not gay...."

JCF said...

To me, the obsession w/ "What Kagan Is" (sexuality-wise) is all rather male in its focus.

Straight Men: "A lesbian! (leering chuckles)"

Latents/Closet-Cases (i.e., Wingnuts): "A lesbian! Degenerate horror! My smelling salts! Get the pitchforks!"

Gay Men: "A lesbian . . . so if she's one of us, why isn't she out, dammit?!"

A "50 year-old, never-married woman" . . . could have been ANYTHING. Or still could be EVERYTHING.

This doesn't mean, per se, she's bi. It means that female sexuality is FAR MORE FLUID, than is male sexuality.

If she WANTS to ID in one particular way, then great (as I hear close friends are saying she does, "Straight". I have my doubts!)

But if she doesn't?

It doesn't mean she's necessarily "hiding" something (nor that she's "confused" or "questioning").

It means that she's female. And that IDing as any particular sexuality, simply doesn't work for her (judge her on her policies and decisions, NOT her "self-ID"---which might not signify anything meaningful, even if she DID volunteer it).

Brother David said...

Closets are only safe for mink coats and against the occasional tornado.

wv = verile
Yes, I embrace it!

Jim Pratt said...

It's not so much about sexuality as it is about politics.

When David Souter was appointed, there were rumors about his sexuality, with no more foundation than the rumors concerning Ms. Kagan (middle-aged, never married or known to have been romantically involved). But since he was conservative, conservative groups didn't make anything of the rumors. But since Kagan is a liberal, she is fair game.

In these games, left and right are no different. Remember the Clarence Thomas nomination, when feminist groups tried to crucify him for some inappropriate remarks to a female subordinate. Yet a couple years later, those same groups were surprisingly silent when allegations of rape were raised against Bill Clinton.

Unlike sexual harassment, which can involve criminal behavior, a nominee's sexuality and private life have nothing to do with qualifications for the job.

Unfortunately, a better response from the White House would have been: "It's none of your damn business, and even if she is, she's well qualified and it has no bearing on the job."

JCF said...

Yet a couple years later, those same groups were surprisingly silent when allegations of rape were raised against Bill Clinton.


I recall NO even slightly credible charges of *rape* against Bill Clinton. [Just multiple allegations of infidelity. Some w/ allegations of retaliatory harrassment accompanying them---but Paula (Whats-her-name, w/ "Troopergate") lost her case in court. Though she DID get Clinton to commit perjury therein, in denying his affair w/ Jennifer Flowers.]