Here is what you absolutely do not “Need to Know” about Elena Kagan: whether or not she is gay. Yet everyone, it seems, is talking about just that in the run-up to next month’s confirmation hearings. Indeed, within hours of her nomination to the U.S. Supreme Court, the speculation had begun, on the right – and left.
Gay activist and prominent political blogger for The Atlantic Andrew Sullivan posed the question almost immediately: “So is she gay?” It’s fair to say that he’s been on something of a crusade ever since. And he’s not alone: One reader of The New Yorker – not exactly known for its Tea Party subscription base – actually had the temerity to ask staff writer Jeffrey Toobin, in a comment to Toobin’s first column about the Kagan nomination, whether his former classmate had brought a date to his wedding.
Well, so what if she hadn’t?
In 2010, is America still a place that requires a woman to attend a wedding accompanied by a male escort? Can we not accept a woman of 50 years who is single, for whatever reason:
- Because she has been too engaged in the extraordinary demands of a career theretofore open, at the highest levels, only to men;
- Because most men she knows find her intellectually intimidating or simply cannot meet her mind halfway over a cup of coffee, let alone for a life-long commitment;
- Because in most states, she did not (and does not) enjoy the right to marry a partner of the same gender, even had she chosen to do so;
- Or because, she simply has not yet met a partner (of either gender) with whom she cares to build a life?
The public fact of this private matter is that Elena Kagan is a single woman. And, for these purposes, it doesn’t matter one bit that she is – or why she is – that way.
Kagan’s single status matters not any more than the fact that Justice Scalia has fathered nine children; or the fact that Justice Sotomayor is a divorcee; or that Justice Souter was, at the time of his confirmation, and throughout his tenure on the Supreme Court, a single man.
None of these private matters arose at confirmation, nor should they have. That is because what matters in law – and no place more so than on the Supreme Court – is the judge’s ability to make a calm, cool-headed, intellectual assessment of the legal precedents as applied to the facts of a particular case, and separate from any personal bias. Elena’s Kagan’s sexual orientation, therefore, is wholly irrelevant in this context.
I have met Elena Kagan (first in my days as a White House fellow and several times since as a reporter). I don’t know her well. I certainly don’t know if she is gay. (Even those who know a person best – parents, children, spouses – while they may pretend to know, do not always.) But here is what matters most: I do not care; it is none of my business. And it is none of our collective business, as a nation.
First and foremost, the subject of whether Elena Kagan is homosexual impresses me as idle chatter for idle minds. It really is no different from conversations about the private lives of Tom Cruise or Oprah Winfrey or Ryan Seacrest. The fact that the conversation is not about a Hollywood celebrity but instead about a nominee to the nation’s highest court does not move the dialogue to a loftier plane. It is still gossip, nothing more.
Second, the court to which Kagan aspires has long recognized a right to privacy in this very arena, going back to at least 1965, when the nominee was 5 years old. That case, Griswold v. Connecticut is settled law and gives Elena Kagan – and the rest of us – a reasonable expectation of privacy as to choices regarding love and marriage.
Third and finally, I do not think, even as a political matter, it would behoove Kagan (or the Obama administration) to make any further comment about her sexuality (the White House has once denied that she is gay, a mistake in my view). Simply put, Elena’s Kagan’s decision not to marry – her singlehood, which is the only public fact – is a matter of personal and private choice. It does not mean that she is gay (any more, quite frankly, than married status necessarily means that a person is straight).
Kagan’s sexual identity/marital status is not relevant to her capacity as a legal thinker. That should be the end of the discussion for the confirmation process – and for the country.
Jami Floyd is a lawyer, an award-winning journalist and a nationally renowned news anchor.