Does It Matter If Elena Kagan Is Gay?

Elena Kagan’s friends assure us that she’s not gay. “I’ve known her for most of her adult life and I know she’s straight,” Kagan’s roommate in law school told Politico. And former New York Governor Eliot Spitzer, who knew her at Princeton, says she certainly dated men while in college. Even the White House has hit back at rumors that she is gay. All of which begs the question, who cares?

The rumor that Kagan is gay is based on little more than gossip and innuendo. No girlfriends have emerged with the details of their relationships with her. The fact that Kagan never married—or that she plays softball—doesn’t mean much. Nor does the fact that she opposed allowing military recruiters at Harvard on the grounds that “Don’t Ask, Don’t Tell” goes against Harvard’s policy against discrimination say anything about her sexual orientation. Many straight people—myself included—agree with Kagan that barring gays who want to serve their country from joining the military is “a moral injustice of the first order.”

Nor would it say anything about her fundamental qualifications for the Supreme Court if she actually were gay. Whether she is attracted to men or women is about as interesting to me as whether she is attracted to people with light or dark hair. Even a number of Republican senators have said that it doesn’t matter. I’m personally a great deal more interested in what she thinks about President Obama’s broad use of the state secrets privilege. I am also interested, of course, in whether or not she believes a right to marry whomever we choose is protected by the Constitution. It’s probably fair to suppose that if she were gay, she would be more likely to sympathize with the idea that gays have a constitutional right to marry. But Kagan, when asked point blank before her confirmation hearings for solicitor general, already told the Senate Judiciary Committee that in her view “There is no federal constitutional right to same-sex marriage.”

Nevertheless, if Kagan were gay—and if she openly admitted she were gay—it would mean a great deal to many people. There have been whispers about other justices before, of course. And it would be surprising if none of the 111 justices in our history had been secretly gay. But there has never been an openly gay justice. Having an openly lesbian woman on the court would be a sign that homosexuals can rise to one of the most important and respected positions in the country. And many in the gay community would be glad to have someone on the bench who had some of the same experiences as they had had, who knows firsthand how the law is applied to gays in America.

But if Kagan were to come out as gay, the fact is she might have trouble getting nominated. Even though a number of senators have already said her sexual orientation is irrelevant, it might still affect the way their constituents see her and change they way they vote. We’ve never had an openly gay nominee, so we don’t really know. If she were gay, and hid the fact, that would matter too. Many would see it as a betrayal and act of cowardice for her to deny her sexuality—no different than it would be for to someone to deny that they were Jewish at a time when Jews were treated as second-class citizens. That’s why, as Andrew Sullivan says, whether she’s gay may be a fair question.

But it may also be fair for Kagan to choose not to answer it. As William Saletan says, anyone who comes out of the closet—as Sullivan himself well knows—is potentially subject to discrimination and abuse. That’s something that Kagan—gay or straight—doesn’t deserve. Ultimately a person’s private sexual life should be none of anyone else’s business. Even answering the question concedes in a way that it matters in a way it shouldn’t. Sullivan has since let it drop, saying he respects her right to decide what she chooses to say about herself. From my perspective, what matters is that—gay or straight—Kagan fights for the rights of everyone, no matter what their sexual orientation.