Andrew Sullivan does go there. In a posting titled, “So Is She Gay?“, he posits that Elena Kagan’s sexual orientation is not something that should be kept out of the equation.
It is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. 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.
Those are good points, and it should mean nothing either way. However, there is a difference between asking whether or not she is Jewish and asking if she’s gay. For one thing, I doubt that the question of her religious affiliation would bring about a response like this from the American Family Association:
It’s time we got over the myth that what a public servant does in his private life is of no consequence. We cannot afford to have another sexually abnormal individual in a position of important civic responsibility, especially when that individual could become one of nine votes in an out of control oligarchy that constantly usurps constitutional prerogatives to unethically and illegally legislate for 300 million Americans.
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?
Outside of the lunatic anti-Semitic fringe, no one should be able to state that “no Jew is qualified to sit on the Supreme Court,” and still be acceptable in polite society, and yet this odious response from a group that is considered to be a base of the Republican party can publish that homophobic garbage without so much as a raised eyebrow. Also, there are still federal, state, and local laws on the books that openly discriminate against the LGBTQ community, and it’s been a fight every time a state or municipality has tried to ban discrimination based on sexual orientation because people who share the AFA’s opinions have stood in the way. Discrimination based on religion has been outlawed for several generations (in theory, at least). So if Ms. Kagan has a reluctance to speak out about her sexual orientation, there is ample justification for her silence no matter what it is or isn’t.
Or it could be that she feels its nobody’s business, neither to those who support her or those who oppose her. The assumption that her silence is an admission presumes that she is somehow ashamed of the answer. Mr. Sullivan justifies his query by saying,
Are we ever going to know one way or the other? Does she have a spouse? Is this spouse going to be forced into the background in a way no heterosexual spouse ever would be?
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.
No, I think it’s an invasion of privacy. After all, how much do we know about the spouses — let alone the names — of the current members of the Court?
I can appreciate Mr. Sullivan’s interest, and I don’t dismiss out of hand the idea that a person’s identity, be it by faith or by sexual orientation, can be a part of their judicial views, even if it is beneath the surface. But that is one small part of who we are — unless we or someone else makes it larger than it really is.