Joan Vennochi

The effort to ‘out’ Kagan

Supreme Court Nominee Elena Kagan in 1993. Supreme Court Nominee Elena Kagan in 1993. (University of Chicago Law School/ File 1993)
By Joan Vennochi
Globe Columnist / May 16, 2010

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WHY DOES a single career woman with short hair always have to answer the is-she-gay question?

The effort to out Elena Kagan as a lesbian plays to the most stereotypical thinking. It also distracts from legitimate questions about President Obama’s Supreme Court nominee.

Grill Kagan on her connections to the real world, which, by the way, are as tenuous for her as they are for most of the country’s ruling elite, liberal and conservative. Ask her to explain her thinking on matters of executive authority.

But, stay out of the private issue of sexuality. And please, don’t use softball as a metaphor for homosexual life.

The political forces seeking to derail Kagan are doing so by making sexual preference part of the conversation.

That’s the true reason for the intense focus on Kagan’s decision as dean of Harvard Law School to stop on-campus military recruitment because of the “don’t ask, don’t tell’’ policy. It’s a way to hide the smirking behind the charge that she is “anti-military.’’

At Harvard, Kagan criticized the military’s ban against gays and lesbians serving openly as “wrong — both unwise and unjust.’’

But even if the policy is changed, openly declaring one’s sexuality still remains a choice. No one in the military or on the Supreme Court should be forced to walk around with the label, gay or straight.

It’s a slippery slope if members of the Senate Judiciary Committee start asking Kagan whether she prefers men or women. What’s next? Forcing every job applicant to open their bedroom door? Having gays wear pink badges, as required by the Nazis?

For those who say sexual preference affects a jurist’s objectivity, so do a host of other defining factors. Some are more obvious than others, such as gender, ethnicity, religious upbringing, educational background, and marital status.

For men and especially for women, being unmarried is viewed as a sign of possible homosexuality. In her latest book, author Kitty Kelley speculates about Oprah Winfrey’s sexuality because she never married longtime partner Stedman Graham and hangs out regularly with a gal pal.

There were rumors about the unmarried and now retired Justice David Souter, but no one demanded that he address them. Maybe that’s because he was nominated in 1990, before bloggers were able to flood the Internet with poisonous speculation that then gets picked up by the mainstream media.

During the administration of George W. Bush, the unmarried Secretary of State Condoleezza Rice was mentioned in a 2007 National Enquirer article headlined “Who’s Gay and Who’s Not.’’ The London Sunday Times used it as an excuse to write about other “salacious and often thinly sourced sex-related stories’’ fueled by the Internet and tabloid press.

Rumors about the unmarried Sonia Sotomayor were also flogged when Obama nominated her last year to the Supreme Court.

Under the headline “Is Sonia Sotomayor gay?’’ Vanity Fair writer Michael Wolff exulted, “Well there, I asked the question. It might as well be asked. It is being asked.’’ He then dragged out the usual “evidence’’: “No children. Vagueness about an early marriage. A lot of pictures with nieces and nephews . . .’’

Wolff, who was criticized for a piece he said was supposed to be playful, has reprised it under the headline “Is Elena Kagan gay?’’

“It could, I suppose, be my fault that my mildly sardonic question has now graduated to a mainstream political accusation,’’ Wolff now exults.

He’s right when he says the mainstream media love its new freedom to rail about the rumors about Kagan’s sexual orientation, while eagerly regurgitating them. The word “lesbian’’ is bound to get more hits on the Web than the word “liberties,’’ as in civil liberties.

From that perspective, Kagan may be secretly pleased to have the focus on her short hair rather than the short paper trail of her legal philosophy.

It lets her off the hook on the really tough questions that she should answer.

While everyone scrutinizes the photo of her playing softball, who will scrutinize her attitude toward the separation of powers?

Joan Vennochi can be reached at

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