Sexual Orientation and the Supremes

Who cares whether potential high court pick Elena Kagan is gay or not? Linda Hirshman on the stigma of calling someone a lesbian—and why it’s time to appoint an openly gay justice.

Alex Brandon / AP Photo; Yuri Gripas, AFP / Getty Images

Who cares whether potential high-court pick Elena Kagan is gay or not? Linda Hirshman on the stigma of calling someone a lesbian—and why it’s time to appoint an openly gay justice.

The blogosphere is alight with chatter about conservative scribe Ben Domenech's description of Solicitor General and potential Supreme Court nominee Elena Kagan as the "first openly gay justice." Leakers revealed that the White House press office had pushed back, of all things, stating that Kagan is not gay (or, more appropriately, lesbian). The CBS website, which had relayed the rumor, took the post down. Of course, that simply means we're all talking about whether we should be talking about Kagan's sexual orientation instead of talking about Kagan's sexual orientation.

The conventional wisdom, immediately produced by the Establishment gay Human Rights Campaign and Parents, Family and Friends of Lesbians and Gays, is that while being gay should not disqualify a person, it might have that effect, so such rumors should not be spread.

There is nothing wrong with being gay (or lesbian). What hurts is the assumption that it hurts.

This reaction is so last year—better yet, so last movement. Back in the day, when feminism was the big social-change movement, accusing an authoritative and accomplished woman with short hair of being a lesbian was the equivalent of sexual blackmail. Call it Lesbian Lite, a synonym for someone who doesn't get to have sex with men.

Women who did not bother with time-consuming hair maintenance and hobbling high heels when they could be running America's State Department would surely be punished by not getting laid. Or at least never fantasized about as MILFs. Remember the Hillary nutcracker? If someone was outed as a lesbian, it went without saying they could not serve in high office. But little of the lesbian talk actually resulted in revealing a real lesbian. You had to conclude that the lesbian gambit was mostly about thwarting the ambition of women who didn't spend enough time worrying about whether these jeans made them look fat. People should have—and did—call out the "lesbian" accusers for their misogyny.

Boy, have things changed. Now, the suggestion that someone is gay is usually taken as a direct accusation of homosexuality. Only being gay is not automatically a disqualification for office anymore. Indeed, many places have laws prohibiting discrimination based on sexual orientation, and there are an increasing number of gay and lesbian officeholders at all levels of elected government. So why do we still think it’s bad to call someone a lesbian?

Peter Beinart: Elena Kagan’s Achilles HeelBut the fact that lesbian is still considered a fighting word in the context of a Supreme Court nomination in 2010 is a sign of how far we’ve come. Recently, some gays and lesbians reared up and started demanding full equality, by bringing a traditional civil rights action in federal court to strike down California's anti-gay marriage law, as unconstitutional. As gays and lesbians organize to demand their rights as American citizens, they have the honor of being treated like people who are actually a threat. The battle is joined: Recently, Focus on the Family, one of the chief organs of the religious right, announced that they would oppose any nominee simply because they were gay. This is an actual reversal of their position when the last Supreme Court battle was fought.

As the situation has changed, so, too, should the response. There is nothing wrong with being gay (or lesbian). For the record, I don’t know anything about Elena Kagan’s sexual orientation, and I don’t care. What hurts is the assumption that it hurts. So PFLAG and the Human Rights Campaign are wrong. They should be saying: Bring on the rumors. For six months, the media has been wallowing in the sexual scandals of private citizen Tiger Woods, to say nothing of the blanket coverage of the actions of his fellow fornicators, Eliot Spitzer, Mark Sanford, John Edwards, and the rumors about French President Sarkozy, and the perennial favorite, the post-Monica Bill Clinton. Although Woods, Spitzer, Sanford and Edwards doubtless did not want their sex lives publicized, few hesitated before running to their blogs. Yet when the Kagan rumors started, pretty much everyone in the mainstream media agreed smugly that they shouldn't be outing anyone. The only explanation for the hands-off policy is that the media paladins think there's something more disgraceful about being gay than cheating on your wife with a prostitute. It's not protective, it's the soft bigotry of low prurient expectations: The media treat same-sex orientation as so awful you cannot reveal it. Treat same-sex orientation as a liability, and, guess what, it becomes a liability.

Former Republican staffer Domenech was right about one thing. The president should nominate someone openly gay to the Supreme Court. My personal choice is the legendary Supreme Court litigator and co-chair of the board of the Lambda Legal Defense Fund, Paul M. Smith, but there are plenty of incredibly qualified gay and lesbian candidates out there. As another Supreme Court litigator and former solicitor general, Ted Olson, put it, equality for gays and lesbians is "the culmination of our nation's commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation." Just as Thurgood Marshall's presence on the court enabled the institution to recognize the lived experience of African-Americans, and Sandra Day O'Connor of women, so the presence of an acknowledged gay justice would open the closeted precincts of the United States Supreme Court to the lived existence of the members of the last major civil-rights movement.

Finally, and here's a real dirty little secret, President Obama appointing an openly gay candidate for the Supreme Court would be political genius. Think about the prospect of watching the married Senator Ensign—who is under investigation for allegedly seeking lobbying work for the husband of his mistress—arguing that the high court nominee is "sinful" or "lacking in personal morality," as the Focus on the Family suggests. The polls are clear: Regardless of their views on same sex marriage, most Americans do not think gays and lesbians should be discriminated against, and the numbers for gays on all issues are sky high among young voters. The Republicans don't want to be caught in a Pat Buchanan-style culture war just as the mid-term elections loom, just like enough of them wanted to avoid the anti-Hispanic trap to confirm Justice Sotomayor. It's a no-lose nomination.

Linda Hirshman is a retired professor of philosophy. She is the author of Get to Work: A Manifesto for Women of the World. She is writing a book about the gay revolution.