Mything the Story

By Kerry Eleveld

Originally published on Advocate.com May 12 2010 5:35 PM ET

Rarely have I been more journalistically frustrated by a story than that of Elena Kagan’s sexuality this week. And rarely have I felt more grateful to another journalist, Politico’s Ben Smith, for finding a credible source to settle the question and put me out of my misery.

First off, as a reporter, I like nothing less than engaging in wild speculation, especially in my writing, about things for which I have no evidence.

Heading into this week, based on informal conversations I’d had about Kagan and background interviews with the White House, I had no reason to believe Kagan is a lesbian. So on Monday we at The Advocate focused our reporting on the substantive matter of whether her potential recusals from critical LGBT cases could adversely affect the outcomes of those lawsuits were she to be confirmed.

Yet people wanted answers. Advocate.com readers were as anxious as anyone for confirmation or denial of the rumors about Kagan. One reader on our website actually scolded, “Hey, Advocate, is it too much to ask that your reporters actually compose an article informing the GLBT community on something important like this?”

Plenty of mainstream reporters chatted me up about Kagan — some wondering what I actually knew about her sexuality, even if they felt sheepish for asking, and others looking for advice on how to cover the issue.

This is not the first time. In last year’s lead-up to President Obama’s first Supreme Court nomination, one mainstream reporter who was wrestling with how to approach the sexuality of nominees who had not yet been identified as openly gay, sent me an e-mail wondering, “How are you dealing with the fact that a bunch of the front-runners for SCOTUS are gay, but not exactly out?”

I sympathize with my mainstream brethren here in Washington. Outing people or trying to determine their sexuality has never been something that drives me as a reporter. It can also take an extraordinary amount of time unless someone just stumbles into coverage like Family Research Council cofounder George Alan Rekers did last week.With critical equality legislation like employment nondiscrimination and
repeal of “don’t ask, don’t tell” pending, and with a spate of LGBT
protests taking place at the foot of the White House, I prefer to devote
my time to the tangibles. Sexuality is often anything but black and
white — it’s sometimes in between or, in some cases, a matter people
shove completely out of their life on the way to other destinations.

Having
said that, I am inclined to believe Smith’s source — a close friend of
Kagan’s since law school — when she says that the Supreme Court nominee
is not gay. That narrative jibes with my initial reporting, which
yielded not a shred of solid evidence that led me to believe the lesbian
rumors. Unfortunately, no one who knew Kagan well was willing to speak
to me on the record or even on background about a matter they considered
highly sensitive. Since when did it become a bad thing to declare
someone straight?

Of course, the administration’s initial
response didn’t necessarily help quell debate when the prospect of her
being the "first openly gay justice" was raised by a reckless CBS blog
post. The White House response was quick but clumsy — immediately
pushing back with one spokesman saying the blogger was making “false
charges.”

Apparently, being gay is still seen as an accusatory
claim rather than a simple statement of fact, no different than the fact
that someone is straight.

This week, administration officials
tried to steer clear of the subject when asked about Kagan’s sexuality
during a Monday morning press gaggle at the White House. I was not
present, but according to The Washington Post, “Asked whether questions
about [Kagan’s] sexuality would be off-limits during the confirmation
process, White House press secretary Robert Gibbs replied, ‘It's not
anything I'm going to get into.’”

But
with people like Andrew Sullivan wondering aloud, ‘So is she gay?’ and
no one who was informed enough willing to derail the runaway train, the
blogosphere went on a predictable and entertaining —  yet no less vexing — self-indulgent tear while reporters scrambled to catch up.What
is fascinating is that LGBT people seemed equally as desperate
to cast Kagan as our gay hero as the far right did to cast her as their
gay villain.


A reader on our website, Terry of Havasu, enthused,
“Gay people are used to being controlled by the fact they are
outnumbered by straight people. At least now there could be an ‘inside’
voter.” Wink, wink.


Meanwhile, the American Family Association
charged, “We cannot afford to have another sexually abnormal individual
in a position of important civic responsibility. ... The stakes are too
high. Social conservatives must rise up as one and say no lesbian is
qualified to sit on the Supreme Court.”


Look around and it’s
easy to see why LGBT people long for role models in high positions.
Perhaps because gays and lesbians know what it’s like to love behind
closed doors, it’s all too easy for us to imagine someone as
ambitious and successful as Elena Kagan doing just that. And certainly,
just because people who know her don’t believe she’s gay, it doesn’t
prove she isn’t. But by the same token, neither is her decision
against declaring her sexuality, marrying, or raising children
dispositive.


Just before
Obama nominated the unmarried Sonia Sotomayor to the Supreme Court, Slate writers Dahlia Lithwick and Hanna Rosin looked at the conundrum of
being a single woman of a certain age — and successful. For a woman,
being eligible to fill elite positions such as solicitor general often
means prioritizing profession over personal life. But once you
approach that glass ceiling without the trappings of “womanhood” (i.e. a
husband and kids), everyone thinks it’s weird — or “unnatural,” as the
Slate headline suggested — and starts asking inadvertent, intrusive,
and frankly, irrelevant questions.


Andrew Sullivan argued that
knowing Kagan’s sexuality is relevant to discerning what type of
conclusions she might draw on the bench. I disagree. I have always found
that people’s historical patterns and approaches are far more
predictive of their future actions than ascribing stereotypes based on
whether they are black or white, gay or straight, male or female. The
fact that Kagan has played softball in the past, for instance, is much
more telling about her propensity to play softball in the future than
whether she is gay or straight would be.


In
terms of LGBT issues, the juxtaposition of Kagan’s declaration that the
military’s gay ban is “a moral injustice of the first order” with her
assertion, during her confirmation hearing for solicitor general, that
there’s “no federal constitutional right to same-sex marriage” is worthy
of debate.


Kagan’s capacity to judge should be based on the
merits — her accomplishments, her writings, her judicial philosophy, and
what kind of a contribution she could make to American jurisprudence
and society at large.


I, for one, am glad to get back to
covering the substance while hoping that one day, knowing the truth
about someone’s sexuality — gay, straight, bi or whatever — will cease
to be a diversion from more consequential considerations.