Kagan and the 'Gay Question' Controversy

Indeed, the consensus among gay rights groups is that merely raising the question -– without any substantiated reason to -– feeds stereotypes and prejudices about what it means to be gay. The disparity in who gets asked the questions and who doesn't also reflects a subtle form of discrimination, some say.

"I think there's a double standard," said Rep. Jared Polis, D-Colo., the first openly gay House member elected as a freshman. "There really shouldn't be any pressure one way or the other [on Kagan] because I don't think that, for instance, Justice Roberts or Alito in their confirmation hearings were interrogated about who they dated or who their spouses were."

Neither Justice David Souter nor Justice Sonia Sotomayor, who were also single and childless at the time of their nominations, faced media speculation about their personal lives as heated or voluminous as Kagan now does.

"We don't say, 'Is the fact that you're male or female a reason that you're competent or not competent for a job?" said Kolbe, who came out as a gay man while serving in Congress and continued in his seat for 10 more years.

The very proffering of Kagan rumors through the so-called whisper mill may also be attempts to smear the Democratic nominee and rally a homophobic base.

"This is straight out of the right-wing playbook," said Michael Cole of the Human Rights Campaign, the nation's largest gay-rights group. "Even though the majority of Americans couldn't care less about a nominee's sexual orientation, the far right will continue to be shameless with their whisper campaigns to drum up their base and raise money off of prejudice."

Kagan Statements on Gay Issues Draw Spotlight

Mike Rogers of Blogactive.com, which investigates claims of allegedly closeted gay members of Congress, said, "The only reason they're asking it is because they're homophobic. Did they ask it of John Roberts?"

Some conservatives contend Kagan's public statements on gay issues, particularly her outspoken opposition to the military's "Don't Ask, Don't Tell" policy, raise the relevance of the inquiry into her personal life.

As dean of Harvard Law School in 2005, Kagan called the military's ban on gays and lesbians serving openly a "profound wrong" and "moral injustice of the first order." She supported an attempt to ban military recruiters from campus because of their "discriminatory" policy, a move the Supreme Court later overturned.

During her confirmation as solicitor general in 2009, Kagan was asked in a questionnaire whether she believes there is a federal constitutional right to same-sex marriage.

"There is no federal constitutional right to same-sex marriage," she replied.

Whatever the motivation behind the buzz, it's likely the questions and speculation about Kagan and possibly future nominees will continue until the ice is broken and novelty dispelled with a first openly gay nominee.

"The Supreme Court is a new frontier," former congressman Kolbe said, "the last bastion where this has not ever been raised as an issue, and it's going to be raised."

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