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Jami FloydBack to OpinionJami Floyd

For Kagan, don’t ask, don’t tell, don’t need to know

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.


  • jss

    My only concern is that she is fair and can handle the job.

    I’m of the belief that neither one’s gender or sexual orientation has no bearing on job performance.

  • darcy miller

    why does everyone think that someones sexuality will interfere with the way they do their job.All because of 1 picture rumors started flying about her.i ignore the ignorance of people that judge others because of there race ,sexuality etc.As long as the person can get the job done i do not care if they are purple with pink polka dots or who their partner is..

  • d parish

    Agreed…. It matters not. The very mention of it by the GLBTT community, of which I am a member, only serves to belittle us. Ms. Kagan is where she is today because of the work that she has put in. The gossip regarding her sexual orientation is quite frankly, embarassing. It shows how sadly small our minds can be and how quickly we are lead astray of the path we are meant to be on, for the socially acceptable ‘gossip of the day’. The members of my GLBTT community need to stop worrying about another potential respectable person ‘coming out’ to further our cause. We will get there when we get there and with those who choose to join us. For Ms. Kagan, I wish her a quick and smooth confirmation.

  • Jacqueline Edwards



    You’re right – it doesn’t really matter personally. It may matter professionally though. If she is gay and if she stereotypically is sympathetic to gay rights – would she interpret marriage a different way. Gay marriage is certainly to keep coming before the Supreme Court in the near future – will she be sympathetic to such cases? It’s a very fair question to ask. It involves multiple billions of tax breaks and a loss to the tax base – tax payers have a right to question it.

  • Minal

    With all due respect, I disagree with the premise that Kagan’s sexuality is a non-issue, *only* because it’s likely that the issue of same-sex marriage will be put before the Supreme Court sometime in the near future. Appointing a gay individual to the Supreme Court at this time is akin to appointing an African-American to the court before Brown v. the Board of Ed. Now, I would support either appointment as I’m unequivocally for de-segregation and gay marriage. But for someone who believes differently, it’s legitimate for them to question Kagan’s sexual orientation as it’s likely to influence her decision on this controversial issue.

    That said, the ridiculous “evidence” that’s being purported (She plays softball! She didn’t have a date to a wedding!) needs to be put to bed. Kagan should be asked the question directly, in the context of understanding her possible ruling on gay marriage, and then let her answer stand as the final word. It’s the rumor-mongering and ridiculous stereotypes that are offensive, not the actual discussion of sexual orientation.

  • Mike

    The reason the question of Kagan’s sexuality matters is because homosexuals have made it matter. Legal questions regarding marriage, adoption, education, and military service (to name just a few areas where gays are demanding advocacy) may all come before the court in the next few years. What really needs to be discovered is whether Kagan has a bias.

  • Paul in NYC

    I don’t think it matters at all what Elena Kagan’s sexual orientation is—well no, actually I think it would be a good thing to have a Gay Supreme Court Justice. We have African-American, Hispanics, Jewish judges, white hetero males. Perhaps it would bring another perspective to the table if she were gay.

    U.S. District Judge Vaughn Walker who presided over the recent Federal trial on the constitutionality of CA’s Prop 8 happens to be a gay man. That fact was not a show stopper excusing him from presiding over that case—nor should it be. We expect him to put his role as Judge above his personal choices–as we do ALL judges.

    I’m much more concerned with how well versed Kagan is in the Constitution and what kind of job she will do upholding it as she and the other penguins suss out it’s implications in their various rulings. She seems infinitely qualified in that regard. If she does happen to be gay there’s no need for an apologist argument or even a covert “don’t ask don’t tell”. Should be her call entirely how open she want to be about that kind of personal information.

    BTW, I was encouraged to see Sotomajor voice a well articulated dissent on the latest SCOTUS ruling which further beats down an already crippled Miranda. I haven’t known quite what to expect from her but she’s off to a good start–IMO.

  • Rebecca

    As a midwestern, Christian female who surprisingly happens to be rather liberal, I say, “Don’t ask, don’t tell.” Being gay matters if it impacts how she votes. The public needs to know if she is more likely to vote for the rights of gays. The problem I see is that being gay is still NOT acceptable in the majority of this country. So, don’t say anything, Ms. Kagan. You must work covertly. (My gay daughter, on the other hand, would probably say to speak up.)