They come to it via different strains of logic, but Andrew Sullivan and Peter LaBarbera agree: Elena Kagan has a responsibility to let us all know what her sexual orientation is. They are both wrong.

I’m not going to get into Peter’s argument, because who cares, but Sullivan’s is interesting, in that it’s entirely backward. As is usually the case with Sully, he’s been on this tangent most of the day, and if you really want to read all of it, feel free, but I’m going to excerpt from just one piece:

I have always found the coercive exposure of details of people’s private sex lives to be appalling and cruel. Readers may have noticed that I have barely touched the story of George Rekers, just as I was not among those most eager to pounce on Larry Craig. My core reason is that exposing the complicated lives of people by single acts or humiliating moments is a form of cruelty, and no civil rights movement can or should be built on cruelty to others.

I haven’t budged on this an iota, but on the question of homosexual orientation outside of any sexual acts, the world has indeed changed. To begin with, it has gone from a taboo subject to one of the most urgently discussed. It has shaped our current politics in church and state. It has become one of the most vital questions before the courts. Whereas two decades ago, there were virtually no openly gay figures, there are now countless, especially lesbians (and we do not need to know anything about the details of their private lives to know they are who they are). I’m all for privacy; I am not for dishonesty about simple facts of a person’s public identity.


If there were no openly gay public figures or officials and a justice’s sexual orientation would make it impossible for her to be confirmed, it would be another. But when every aspect of someone’s life is for public view except for one, and when that one aspect is as pertinent to a person’s life experience as ethnicity or gender or religion or family, then I am not required to uphold a double standard I do not share, and which, in fact, I find to be riddled with prejudice. So I feel it is completely defensible to ask the question and print the answer. That’s all. No exposure of private matters; just honesty about public ones. No search and destroy mission into private affairs; just fair-minded clarity about public ones. And that matters.

Er, no. First of all, outing George Rekers wasn’t a “search and destroy” mission against some innocent target. It was an exposure of hypocrisy, just as it was with Larry Craig. George Rekers has spent his life, it seems, trying to kill off that which he despises most in himself by hurting others who share that characteristic and yet are not tormented by it. Moreover, the movement for LGBT equality is not “built on cruelty to others,” and isn’t even primarily devoted to outing public figures who work against us. It happens with a certain frequency, because the self-loathing of the (usually religious) closet is so complete and malignant that, I believe, they can’t keep themselves from hurting gay people in whatever way they can. For your average Joe Homophobe in Georgia, that often manifests as an intense, irrational hatred of gay people, which sometimes leads to gay bashing, etc. For a political/religious public figure like George Rekers, it seems to have involved building a career on a mountain of wholly made-up pseudo-science cloaked in religiosity. But again, that has not ever been the focus of the LGBT rights movement. That being said, there is nothing wrong with holding those sorts of people accountable. The politically active gay community has never, to my knowledge, intentionally outed someone who had not participated in activities meant to hurt LGBT people.

That being said, Elena Kagan doesn’t have a long record of hurting gay people, so her sexual orientation is absolutely irrelevant. Who she goes home to at night, if such a person exists, is irrelevant. Yes, the world has changed in the past twenty years, and millions of Americans are now firm supporters of the gay community, while untold millions more greet it with little more than a shrug. I grant Sully’s point there. But they haven’t changed so much that it wouldn’t be, as Andrew said, “impossible for her to be confirmed.” I highly doubt that an openly gay Supreme Court nomination would be “impossible” to confirm, but there is still a significant segment of our political realm that has absolutely no qualms about using a nominee’s sexual orientation, actual or perceived, in order to smear and (they hope) destroy her.

These days, it’s decidedly out of fashion to openly go after public figures based on racism. If it weren’t, the Tea-Tards* wouldn’t be pulling their hair out trying to assure everybody that they’re totally not a racist movement, and that the pictures they carry of Obama with a bone through his nose are meant to signify something else entirely. (Or whatever it is they say.)

But such is not the case with gay people. It’s useful to remember right now how exactly the subject of Kagan’s sexuality came to be a part of the public discourse. It was only two weeks ago. Ben Domenech, a conservative pundit who was fired from the Washington Post when he was caught plagiarizing red-handed, used a wad of toilet paper and showed it to his new employers at CBS:

The White House ripped CBS News on Thursday for publishing an online column by a blogger who made assertions about the sexual orientation of Solicitor General Elena Kagan, widely viewed as a leading candidate for the Supreme Court.

Ben Domenech, a former Bush administration aide and Republican Senate staffer, wrote that President Obama would “please” much of his base by picking the “first openly gay justice.” An administration official, who asked not to be identified discussing personal matters, said Kagan is not a lesbian.


The network deleted the posting Thursday night after Domenech said he was merely repeating a rumor. The flare-up underscores how quickly the battle over a Supreme Court nominee — or even a potential nominee — can turn searingly personal. Most major news organizations have policies against “outing” gays or reporting on the sex lives of public officials unless they are related to their public duties.

Ben Domenech is of course now playing the “I was just reporting!” card and swearing that he personally doesn’t think it should be an issue. But here’s the thing! We Already Know That Ben Domenech Is A Lying Wing Nut! Don’t think for one minute that he didn’t intentionally tee this up for the purpose of giving the social conservative wingnuts a chance to make a scene. As Digby said on the subject, again, two weeks ago:

Despite his unctuous, insincere defense of gay rights, he knows very well that this will hugely gin up the fundraising and activism against her from the far right and make it more difficult to confirm her. I hope he extracted a big payment from his wingnut benefactors. He earned it.

And any gay activists who are buying into this are simply playing into the hands of the Right Wing Smear Machine. Additionally, Andrew Sullivan’s suggestion that because sexuality is “urgently discussed” and has “shaped our politics in church and state,” Kagan’s sexuality is somehow crucial to the debate, plays into the related Religious Right talking point that a gay Supreme Court justice would be unduly “biased” against “tradishnul murge.” This is, of course, a talking point akin to suggesting that we shouldn’t have blacks on the Court because they’ll rule against the poor, downtrodden white people, or that Justice Sotomayor will henceforth only consider the needs of fellow Wise Latinas in her opinions. It’s straight-up bigotry, plain and simple.

Is Elena Kagan a lesbian? Who knows? Who cares? There are decent reasons to question her fitness for the Court, but her sexuality, or her desire to keep that part of her life private if she so chooses, is not one of them. I understand that, for many gay people, the prospect of having a fellow gay person on the Court would be momentous. I get it. I feel the same way. But, seeing as Elena Kagan has never made it her business to hurt the LGBT community, it’s really none of anyone’s business, despite Andrew Sullivan’s protestations to the contrary.** Maybe she’s gay. Maybe she’s straight. Whatever.

Among real legal scholars, a consensus is building that there’s a lot of Constitutional support for the idea of LGBT equality, because as their understanding of the science merges with their understanding of the law, more and more of them are figuring out that yes, LGBT people are a “suspect class,” entitled to equal protection. The majority of these legal scholars, like the majority of the population, are straight. And let’s also remember that the presence of a minority on the bench does not necessarily mean they’re looking out for others like them. *coughClarenceThomascough* (And by “others like them,” I mean sentient human beings, as opposed to corporations.)

To sum all of this up, I’ll leave you with TBogg’s take, which just serendipitously came through my Twitter feed:


That, Politico, is how you Win The Morning.

(h/t Sadly, No!)

*They don’t like “teabagger,” so I’m taking up Ed’s call.

**Is he still looking for Trig’s birth certificate? It’s useful to remember that Sully sort of, um, does this from time to time.