IGF CultureWatch

I haven't been following much of the continuing debate over Elena Kagan, which seems (mercifully) to be petering out. It'll come back to life when her hearings begin, but if we're lucky, the worst is over.

Still, I have to get two final points on the record. First, the rumors about her sexual orientation demonstrate one thing above all else: how utterly reliant the speculation is on stereotypes. Softball. Cigars. Haircut. Build. Yes, some women who look and act like Elena Kagan are lesbians. And some women aren't. We should all be very proud of our keen senses of intuition in so definitively being able to sort out, in public, this most personal of matters.

The biggest factor in the speculation, though, is that Kagan is single. Or, as Maureen Dowd astutely notes this morning, less flatteringly "unmarried." I confess I was a little miffed that her editors stole the headline I'd planned to use, "All the Single Ladies," but the point is rich enough to warrant a bit of elaboration.

The debate over Kagan's sexual orientation may say more about the importance of marriage in our culture than homosexuality. This foolish skirmish is exactly what drives closeted lesbians and gay men into sham marriages with someone of the opposite sex -- and is exactly why heterosexuals have such a direct and personal interest in ridding the culture of homophobia, including the internalized kind that fuels the closet. As long as marriage is viewed as a marker - in fact the marker - for heterosexuality, lesbians and gay men who are ashamed or even just nervous about being homosexual will have an incentive to marry defensively. Whatever the many social advantages of marriage, it is ultimately between two individuals, and the cultural interference of homophobia has taken an enormous toll on far too many of those personal relationships.

More to the point, even heterosexuals who are cognizant of anti-gay sentiment in their environment will feel the pressure to marry, whether they want to or are inclined to, or not. Maybe Elena Kagan has been unfortunate in love. Or maybe she doesn't want to get married, or feel the need to. Yet the spectacle of this debate over her sexual orientation must be at least an embarrassment for her, if not a full measure of sheer emotional torture.

And all because she is not married.

In an ideal world without homophobia, we might have been able to have a discussion about the importance of marriage and the equal importance of individual liberty in making that choice. But we don't live in that world, and Elena Kagan has had to suffer the needless indignity of our salacious speculations about a subject that is alluring to us, but about which we know absolutely nothing.

John Aravosis has a nice timeline of the stonewalling -- an apt term here in multiple ways -- from the heavily Democratic Congress on the Employment Non-Discrimination Act. First, there was going to be a vote in the House last fall. Then there was going to be a vote in January or February. Then there would be a vote in April. Now there will be a vote sometime before January. Maybe. Nobody's even talking about the Senate. Let's just say that time is not on ENDA's side. If it does not pass this year, it is unlikely to pass before 2013.

Recall that in 2007 the House voted in favor of ENDA but the Senate never scheduled a vote because, among other things, Democrats told us the mean Republican president would veto it. So there was no point in passing it. Now with stronger Democratic majorities in the House and in the Senate, and with a Democratic president in the White House, we still aren't even getting a vote on the bill.

But something besides the usual political timidity is involved here, as the Washington Post reports. Gay-rights advocates are once again insisting, this time with the support of every gay group and the openly gay House members, on including protection for transgendered workers in the bill. After a furor over expanding ENDA, such protection was deleted from the House version last time to guarantee passage.

Almost nobody wants to talk about it now, but the renewed insistence on including "gender identity" is killing any prospects the bill might have. Says the Post:

The legislation is unnerving moderate and conservative Democrats who face brutal reelection battles this fall, and its prospects of passing the Senate are somewhere between slim and none. . . .

[Rep. Barney] Frank has lost at least a few supporters this time around. Rep. John Campbell (R-Calif.), for one, feels that "if the transgender language is included, that's just too far," according to his spokesman.

Frank says he understands why moderate Republicans and politically vulnerable Democrats have "some uneasiness" about the issue. He has addressed two of the bigger concerns: workplace bathroom use and the appearance of transgender employees. . . .

None of these efforts seem to be swaying Blue Dogs [Democrats who are moderate and conservative, especially on fiscal issues].

[Rep. Heath] Shuler (D-NC), who serves as chief whip for the Blue Dog Coalition, said moderates have "walked the plank a lot around here on things that never go anywhere in the Senate" and that asking them to vote on a transgender bill in this year's political climate would be "a mistake." Asked whether he thought the bill would ever reach the floor, he said, "I can't imagine that it would."

We can protect gay employees from private employment discrimination now, this year, 2010. Or we can insist on also protecting transgender employees, who already have some protection under other federal law, and wait indefinitely for any protection. We cannot both insist on transgender-inclusion and get a bill passed for the foreseeable future. Maybe that's a price gay-rights leaders are willing to pay, but we should at least be honest about the cost.

ENDA was one of the two things (the other was the symbolic hate crimes law) that even skeptics like me believed Democrats would achieve. Now half of even that modest expectation is slipping away.

Andrew Sullivan and Glenn Greenwald want to know more about Elena Kagan. For my purposes, I think I've got most of what I need. I'll wait for the hearings, of course, and there's no telling what the opposition researchers, tabloid gold diggers and data miners will turn up, but what we already know about Kagan suggests to me she has what it takes to be a fine Supreme Court Justice.

Because the process is at its political zenith, the discussion right now is political. But the glaringly obvious fact very few among the commentariat bring up is that the most important characteristic of a judge - and particularly a Supreme Court justice - is their judgment. And chief among the issues they must exercise judgment upon is the question of what is a political issue and what is a constitutional one.

That distinction has become so muddied in recent decades - by politics - that it is hard to recognize any line at all.

But in my opinion, Kagan has done a fine job of understanding the difference with respect to DADT. At Harvard, she was required to obey the law, which in this case included the Solomon amendment withholding federal funds from any college that tried to frustrate the anti-gay policy of DADT. When an appeals court ruled that the amendment was invalid, Harvard followed the law as it was then interpreted, and when that opinion was appealed, Kagan signed an amicus brief challenging the law's validity - which was well within her rights, along with those of every American on any issue. And when the Supreme Court ruled the amendment was valid, she enforced the law as it was finally adjuged. She stated her personal opinion that it was an unfair and unjust law (which it is), but she implemented it.

It is easy to characterize this as flip-flopping, or in any number of other politically unpalatable ways, and it will be. But it shows that Kagan respects the rule of law while also holding her own moral opinions about laws she views as unjust - and knows the difference. In this, she has shown an understanding of politics that is rare among the political classes who will be judging her.

As a Supreme Court justice, of course, she will have the ability to decide which laws should be subject to the ordinary rules of politics and which to the constitution's more rigorous limitations set out to manage politics. That is an eternal question judges must face, and even the most rigidly conservative among them do enforce the constitution's limits on politics when, in their judgment, that is necessary.

But every constitutional question comes up in a specific case with its own unique facts. That is where judgment comes in, and where nominated judges should not be required to put themselves on the political record in advance. Kagan may or may not know how she would rule on the constitutionality of DADT or DOMA, just as Clarence Thomas may or may not have known how he would rule on the continuing validity of Roe v. Wade. But those questions do not come to the court without complicating facts, and those facts may make all the difference. Nor is "the law" - especially constitutional law -- something that is always self-evident. There is an absolute constitutional right to free speech that Congress may not abridge. Except in some cases. . .

Kagan's sexual orientation - or lack of one - may or may not be important in her thinking. But then, as IGF demonstrates, I hope, even being openly gay doesn't lead inevitably to any particular way of thinking, much less some specific result. The same is true of religion, which the high court illustrates for us every day. If anyone can find any commonality in reasoning among the court's six Catholic justices, I'd love to hear about it. So, in answer to Dale's question below, I'd say her sexual orientation doesn't matter a lot. He may disagree with me -- but wouldn't that make my point?

Judgment is not something that is objectively identifiable. And no biography can predict its presence or isolate it. But I think Kagan has already given us a record of sound and prudent judgment in a hard political case. That's what good judges need, and we need as many people who have it as we can possibly get.

I don't think so. But I'm curious what others think, especially those who think it does matter. If you do think it matters, how far would you take the inquiry?

(1) Should Elena Kagan or the White House disclose her sexual orientation in a public statement?

(2) If she (or the WH) doesn't, should a Senator ask about it at her confirmation hearing?

(3) If she says that is not a matter she will discuss, or says that she has no defined sexual orientation, should the Senate seek evidence (testimony of former partners, appearance at bars, magazine subscriptions, etc) to produce evidence of what it might be?

(4) Should her refusal to discuss it be a consideration in whether a Senator should vote to confirm or reject her nomination?

(5) Is sexual orientation, per se, relevant to a nominee's duties as a justice?

I'm not sure what position, if any, David or Steve would take on these questions. But their posts did get me thinking about them.

It's hard, these days, figuring out what you can and can't say about homosexuality. This is a problem I never imagined the gay rights movement would lead us to.

David Axelrod described the new world order most succinctly on behalf of the White House. Discussion of Supreme Court nominee Elena Kagan's sexual orientation "has no place in this process. It wasn't … an avenue of inquiry on our part and it shouldn't be on anybody else's' part." Printing an old photo of Kagan playing softball goes too far. If you think I'm overstating the case, even Andrew Sullivan has agreed to shut up about it. This is serious.

Ramin Setoodeh from Newsweek also learned -- the hard way -- the current preference for avoiding The Subject unless you're clear on the party line. His misbegotten essay about gay actors portraying heterosexual characters was not well received, but it did have a point, which Dan Savage distilled in one sentence on Joy Behar's show better than Setoodeh's whole article: American audiences still retain some powerful notions about sexual orientation that they carry with them into the theater, and that can affect their view of how convincing an actor's performance is. That is as unfortunate as it is inarguable. Setoodeh tripped over his own argument (as who among us has not), but it doesn't seem to me Newsweek needs to apologize for publishing it in the first place, as GLAAD demands. The excellent responses are well worth the provocation.

But it's not just Democrats and the gay left who want to stifle discussion of sexual orientation. George Rekers is all set (he keeps saying) to file a defamation suit because people have the nerve to infer he might be a little light in the loafers after his excellent adventure with a young man not his husband in Europe.

What all of these stories have in common is that none of the participants actually wants to fully shut off discussion about homosexuality. Axelrod, Setoodeh, GLAAD and Rekers all have track records, and with the exception of Setoodeh, leverage the subject when it suits their purposes (which, for GLAAD and Rekers is nearly all the time). What the politically inclined among them are trying to do is corral us into having only the discussion they want us to have.

I confess there are plenty of times I'd like that, too. But I try to keep a bit of humility about the limits of my own knowledge and opinions, and if I'm provably wrong, accept the correction as generously as I can, accounting for my disappointment.

This has always been the fundamental problem with Don't Ask, Don't Tell and its fountainhead, the closet. Such regimes cannot succeed unless everyone is properly coerced and follows the rules with precision. If anyone says what they're not supposed to, the whole edifice trembles. Which is to say both ideas embody human folly.

This is, and has always been, exactly the antithesis of the first amendment. Americans (and we're not the only ones) can only ignore something for so long before somebody will speak up or out. And that is true whether the White House or GLAAD or the military establishment or George Rekers is trying to enforce a narrow view - and it's true whether what's being said is good or bad for any particular party.

Eugene Volokh discusses the new liberal line being taken by Elena Kagan advocates, i.e., "She can't be lesbian, she's dated men." Says Volokh,

seems to me pretty odd to see assertions...that she must be straight because she has dated men.... As I understand it, the great majority of women who are not purely heterosexual are actually to some degree bisexual.

That's certainly what the surveys, and everyday observation, seem to suggest (not to mention lessons learned from TV's Grey's Anatomy).

But the Obama administration and its fellow travelers-including, it seems, the Gay & Lesbian Alliance Against Defamation, as quoted here-have decreed that questions about Kagan's personal relationships are out of bounds (unlike, say, for relationship questions about nominees who are unquestionable straight), and any suggestion she might not be exclusively heterosexual is a smear. (Reminds me of how so many feminists joined with liberal men to argue that it was a terrible thing Sarah Palin wasn't staying at home, where she belonged, to raise her children.)

More. In response to the disbelieving commenter, here's one example (hat tip: Bobby)-the Washington Post's Sally Quinn, as recounted by Politico: " 'Her first priority has to be her children,' Quinn wrote. 'When the phone rings at 3 in the morning and one of her children is really sick what choice will she make?' "

But I grant you, liberal men were far more likely to engage in this sort of thing, and worse.

Leaving aside the brouhaha over whether Supreme Court nominee Elena Kagan is in the closet-and the Obama administration's contention that even to ask is a "slur"-there is a bigger gay-related issue with the nominee. As dean of Harvard Law School, Kagan barred military recruitment on campus because the military discriminates against gay people. She reversed herself when it looked like mega-endowment-rich Harvard Law would otherwise lose funds that the government takes from Joe Taxpayer and gives to the elite university.

As former New Republic editor Peter Beinart, himself a liberal, writes at The Daily Beast:

The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can't alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It's more than a statement of criticism; it's a statement of national estrangement.

At the conservative National Review, Ed Whelan blogs:

It's also worth emphasizing that what Kagan mischaracterized as the "military's policy" is in fact the Clinton administration's implementation of a provision of the defense-appropriations law that a Democratic-controlled Congress enacted in 1993 (with Clinton's signature). Instead of taking potshots at military recruiters who were merely complying with the law, did Kagan ever exclude from campus any of the politicians responsible for the law? Of course not. Indeed, whatever moral opposition Kagan had to the law when it was adopted didn't deter her from seeking and obtaining employment in the Clinton White House. Nor will it keep her from palling around with the many senators who voted for it, such as Vice President Biden.

Let's be clear: I abhor "don't ask, don't tell" as much as Elena Kagan. But something is very wrong about Harvard faculty and students taking the view, during a time of war, that the military's gay ban means that they need not consider serving in the armed force.

Working to keep the military from recruiting Harvard's "best and the brightest"-the soon-to-be power elite-was never the way to oppose the congressionally imposed military gay ban. But it sure gave Harvard elitists the perfect excuse for leaving the fighting, and the dying, to those with calloused hands.

More on Kagan. Politico reports that the Gay & Lesbian Alliance Against Defamation is complaining about a Wall Street Journal photo showing Kagan playing softball, whining it implies she's a lesbian (sadly, I'm not making this up). Chris Barron of the conservative gay group GOProud comments to Politico, "I fully expect the White House to push back and claim Kagan never played softball and that it's a smear to insinuate she did."