Once upon a time, a lesbian walked into a bridal shop…
“Elena Kagan, are you a lesbian?”
I can’t imagine that question being asked directly by any of the Senators at her confirmation hearing, but how would she respond if it were? In that context, of course, the only appropriate response would be something like:
“I don’t see how that’s relevant to my qualifications to sit on the Supreme Court.”
“Bold” isn’t the first word that comes to mind in describing Kagan. Indeed, her stance on DADT – which stemmed as much from enforcing Harvard’s policy against discrimination as anything else – is notable precisely because it appears to be the only time she took a strong position on an important issue of the day….
How can someone have achieved success on this level while letting so little of herself, or her views be known? David Brooks, writing in the Times, finds Kagan’s ultra-cautious path and “her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.”
So do I. In response to [a questionnaire she completed when under consideration for the Solicitor General job], Kagan stated that she didn’t recall ever discussing whether the Constitution should be read to confer a right to same-sex marriage. Do you believe that? Isn’t it likelier that she didn’t discuss it in a setting where it might come back at her?
This level of caution seems very odd. A person reaches her 50th birthday without coming out of a careful cage – one that may or may include a lesbian sexual orientation. (I have no inside information here, but there’s plenty of speculation flying around; more than usual in these kinds of cases.)
Why not be bolder, sooner? It seems that Kagan – tenured law professor at University of Chicago, Dean of Harvard Law School, and now Solicitor General of the U.S. would have by now achieved enough to come out, in every sense of that word.
I had this very conversation with a friend last week, and we joked that she might have planned her entire life for the possibility of becoming a Supreme Court Justice. But now our joke isn’t funny: This profile of the nominee shows her wearing a judicial robe, and quoting Justice Felix Frankfurter, in her high school yearbook photo! It also states that at least one classmate recalls Kagan’s stating that becoming a Supreme Court Justice was her goal.
Now what? If she gets through the Kabuki-like nomination process, will she feel liberated enough to make bold, progressive decisions?…
Will she feel comfortable and secure enough to come out, if in fact she is a lesbian?
I have doubts on both counts. Having spent one’s whole life in a carefully crafted, protective bubble, it might be hard to leave its safe casing now. I hope I’m wrong.
In a way, then, I agree with Andrew Sullivan that the public is legitimately interested in a candidate’s emotional life. The law — especially constitutional law — isn’t math, and I, for one, am interested in learning how the candidate sees the world. Someone whose entire life has been guarded, both in terms of emotional and sexual affinity and in the legal context, raises some concern.
So Sullivan has the better of the exchange here. As he notes, when someone is heterosexual, the public part of that orientation is relentlessly on display, in a way so pervasive yet mundane that it becomes wallpaper. (And when it’s no longer boring, sparks fly: See, e.g., the Clarence Thomas hearings.) Yet it “doesn’t matter” when the candidate is gay? Translation: Keep it in the closet.
The back-and-forth between Sullivan Benjamin Sarlin of the Daily Beast did raise another issue, and here I think we might have the start of an interesting, productive and ultimately irresolvable debate about the role and responsibility of the blogger. Is it just to “think out loud,” and not “to report stories,” as Sullivan maintains? I think that’s a false dichotomy. Like it or not, Sullivan is so widely read and cited (he’s prolific, smart, and conveys a clear sense of self) that his thinking out loud, when it presents statements like “we have been told by many that she is gay”, is just more likely to make people think he has some inside information than such a statement would coming from, say, me. It’s not presented as reporting, but might be taken that way. A short statement like, “I have no inside information” would be a helpful disclaimer in this kind of case, even though it’s kind of implied by the way the sentence is structured. (“We have been told” is different, in an important way, from “I have been told.”
I’m not sure what Kagan should do about this issue (if anything) at this point. Expect more thinking out loud on that issue, soon.
According to this seemingly reliable story, coming out as a lesbian in parts of South Africa carries substantial risks. They have been subjected to “corrective rape” and, at least in one case documented in the story, disregard (and worse) by officials when they report what’s happened.
A group of women are shouted at as they walk through Soweto.
The misconduct by officials, at least, is in clear defiance of South Africa’s post-apartheid constitution, which broke ground by including sexual orientation as a category protected against “unfair discrimination.” I (Bill of Rights, Section 9 (Equality), ¶ 3.) And the national legal system, at least, takes this anti-discrimination promise seriously: In 2006, acting after the Constitutional Court had required marriage equality, the Parliament enacted a conforming law. But matters on the ground, as we like to say these days, are obviously quite different.
Why? The long-term oppression of apartheid is surely one reason. Don’t expect sudden respect for the rule of law when the legal system itself, through an elaborate and ruthlessly enforced set of rules, ensured oppression. Then there’s religion: One man in the story at the top of this post attempts to justify these horrific acts by saying that “There is no mention of lesbians in the Bible.”
But there’s more to it than that. The story is based on events in a black township outside of Cape Town, and — at the risk of unwarranted generality — this isn’t the only instance of “traditional” views impeding progress and public health. Another chilling example is the rape of young girls — even babies — by HIV-infected men, on the “theory” that sex with a virgin will rid them of the disease. This post gathers these cases and others into an informative story, which links to discussion of a study by South African’s own Medical Research Council.
According to the professor who carried out the research:
We have a very, very high prevalence of rape in South Africa. I think it is down to ideas about masculinity based on gender hierarchy and the sexual entitlement of men. It’s rooted in an African ideal of manhood.
If this is the (or even a) notion of “masculinity” still at work in South Africa, we should at least put aside any impulse toward cultural relativism long enough to denounce it, loudly.
Does this make national law and policy irrelevant? In the short term, maybe; but constitutional rulings aren’t for the short term. The court gets it; and both the national legislature and public health officials understand the need for change, too. But marriage equality in (at least parts of ) such a nation is legal formalism, nothing more. What same-sex couple will marry when violence can be expected to follow? Only those much more courageous than I’d ever be.
I had a great time on NPR affiliate WYPR‘s Midday Show today, discussing the indefensible “don’t ask, don’t tell policy” with host Dan Rodricks and Alex Nicholson (whom I profiled here, and who was discharged under DADT).
You can listen to the broadcast here. I wanted to add a quick note to what was said on the radio, though. During one of the breaks, I explained to Rodricks that the policy’s cost went far beyond the gays and lesbians kicked out of the service (or who don’t reenlist). He then asked me to say this on the air, but the chance didn’t arise.
In a point I elaborated from Nathaniel Frank‘s excellent book “Unfriendly Fire,” this policy creates a weird, sexually perilous, atmosphere for gays and straights alike. If “gay” is grounds for discharge — and, really, it is, despite the initial and now abandoned effort to separate “status” from “conduct” — then many men are forced to act like self-conscious incarnations, sometimes bordering on parody, of the Hyper Masculine Male. In one laugh-or-cry story detailed in the book, a guy who was suspected of being gay because of his metrosexuality made it a point to stink up the joint with bad breath: poor hygiene is apparently a buffer against both intimacy and the accusation of homosexuality.
Less amusing are the grisly stories of women either harassed, beaten, or sexually assaulted who are then afraid to come forward for fear — sometimes justified, unfortunately — that by complaining they’ll be seen as lesbians. And once someone has the idea that you might be a lesbian, then any and all “evidence” from musical taste (yes, k.d. laing) to sports interests (do not follow the Dinah Shore golf tournament), to taste in art (I give up, here) can and has been used in the witch hunts that DADT has accelerated rather than stopped.
Until DADT receives its long-overdue legislative interment, the Department of Defense must issue memoranda (and regulations, although these take longer) moving the policy back toward its less vicious intent. (Here‘s a small reason to hope.) Stop asking, stop investigating, take complaints of harassment seriously, train officers and troops alike about respect for all. Enough, already.