Kagan and the 'Gay Question' Controversy

WASHINGTON, May 13, 2010— -- When Elena Kagan goes before the Senate Judiciary Committee this summer, she'll be asked dozens of questions by probing senators eager to understand the influence her education, career path, family life and personal views would have on her judicial philosophy.

What she almost certainly won't be asked, based on decades of precedent and confirmation hearings, are questions about her sexuality. But that hasn't stopped a mixed cast of gay and conservative bloggers from doing it instead, sparking a boisterous debate about a nominee's personal life never seen before.

No evidence has proven that Kagan herself is gay, which both her college friends and administration supporters have flatly denied. Before the nomination, White House consultant Anita Dunn said assertions by a conservative blogger for CBS News that Kagan is gay amounted to "people posting lies," while White House spokesman Ben LaBolt called them "false charges."

Moreover, it's clear from a recent ABCNews/Washington Post poll that most Americans -– 71 percent -- would find a nominee's sexual orientation irrelevant in determining his or her suitability for the Supreme Court.

Senior White House adviser David Axelrod told reporters earlier this week that he and President Obama agree. A nominee's sexuality "has no place in this process," he said. "It wasn't … an avenue of inquiry on our part and it shouldn't be on anybody else's' part."

Still, in the hours after Obama named his second high-court nominee, thousands of Internet users took to Google searching for reports or evidence that Kagan is gay, and others joined the speculation on chat rooms and message boards.

The Atlantic's Andrew Sullivan, an openly gay and conservative blogger, was among the first to prominently pose the question about Kagan after her nomination. "So, is she gay?" he wrote in a headline just minutes after Obama announced his pick Monday.

"We have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively," Sullivan said. "In a free society in the 21st century, it is not illegitimate to ask."

Sullivan, who does not substantiate who the "many" are, insisted that he's not trying to slander or "expose" Kagan, but said his question is a fair one that ought to be a matter of record.

Questions of Kagan Cross Line, Groups Say

Kagan's former roommates and close friends have told Politico's Ben Smith stories of date nights, girl gossip and a career woman who never met the right guy. In Sullivan's world, however, Kagan should answer to the cameras and address the rumors herself, regardless of how they were started, putting them to rest once and for all.

But for much of the political world, including many Republican circles, and the broader gay community, the deeply personal questions of Kagan are not only misplaced but cross a line.

"They're certainly not relevant to whether she could do the job or not," said former Arizona Republican Rep. Jim Kolbe, who is gay. "It's not appropriate to ask unless there's a reason to do so, and the only reason to do so would be if it reflects on a person's character or if somebody, a legislator, takes a consistently hostile position towards gays and lesbians and is known to be a closeted gay."

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."