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Is She or Isn’t She? Can We Even Ask? On Kagan’s Sexual Orientation

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CREDIT: (Flickr/Harvard Law Record)

In the past few weeks, we’ve learned a lot about Supreme Court nominee Elena Kagan. We know she is Jewish, that she would be the youngest member of the court, that she is neither liberal nor conservative enough for anyone ever interviewed about her, and that her fashion choices are suspect, to say the least.

But there remains an elephant in the room, an issue that the mainstream media seems unable to handle without being, well, awkward. The question that America’s mainstream media is hesitant to bring up – is she a lesbian?

The issue has been handled sloppily from the start. The messiness began on April 15 when CBS News published a column online, now since removed, in which the author claimed Kagan would be the “first openly gay justice.” The White House reacted strongly, criticizing the column for making “false charges.” Naturally, LGBT people were upset that being a lesbian would qualify as a negative “charge.”

From there, speculation has exploded on the blogosphere and on television programs like the Colbert Report. Everyone seems to have evidence that she is — She plays softball! Her haircut! She’s a single, 50-year-old woman! — or that she isn’t —Eliot Spitzer says she dated men in law school, friends say she isn’t gay, and the White House says Kagan herself has told officials she is straight.

But the latest question seems to be whether it’s acceptable to straight up ask the woman. The answers to that one are pretty split.

John Corvino of 365 Gay presents a useful round up of opinions. Interestingly, he finds that some prominent folks on both the right and the left think it’s a perfectly acceptable thing to ask. He cites gay rights activist Andrew Sullivan and über anti-gay Peter LaBarbera of Americans For Truth About Homosexuality as evidence.

Sullivan says that, “[Whether Kagan is gay] is no more of an empirical question than whether she is Jewish. … If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing.”

And LaBarbera chimes in with, “If Kagan is practicing immoral sexual behavior, it reflects on her character as a judicial nominee and her personal bias as potentially one of the most important public officials in America…”

Granted, the motivations behind these messages are entirely different, and others strongly disagree. Columnist Joan Vennochi at The Boston Globe makes a strong case against the question: “It’s a slippery slope if members of the Senate Judiciary Committee start asking Kagan whether she prefers men or women. What’s next? Forcing every job applicant to open their bedroom door? Having gays wear pink badges, as required by the Nazis?”

To ask Kagan if she were a lesbian would be invasive, obnoxious and possibly offensive. It would also be justifiable. This isn’t to say that Kagan should answer it. There’s no imperative for her to come out as gay or straight or anything. In fact, I’d have a lot of respect for her if she made the question-asker feel like a big jerk. But if worded in a certain way and presented as a reaction to the media kerfuffle over the whole thing, I think it would be acceptable.

There are a lot of people who disagree. Some cite a double standard that only a single woman would be asked this question — No one asked David Souter in 1990 and he was a bachelor. Others think it’s simply an offensive invasion of privacy.

What do you think?

Paul Richards is a staff writer for Campus Progress. He attends the University of Pennsylvania.

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