Wednesday, May 12, 2010

Don't Ask Don't Tell is a Bad Policy for our military, and a Bad Policy for our Supreme Court Nominees. Elena Kagan, are you a Lesbian?

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I wish we didn't have to ask.

But the sphere of public influence has changed, and there's not much that's private about private lives anymore.

A month or so ago, when Elena Kagan's name first floated up as a possible nominee for this Nation's highest court, talk flew about her being a lesbian. The White House was swift to condemn the rumors. I wasn't sure how offended to be by that. I mean, really, who cares if she's a lesbian? And why the presumption of horrible offense/slander for her to be called one? Haven't we moved past that knee-jerk reaction?

Sadly, no. There are plenty of people out there reminding us just how tough it is to be out and proud and still try to achieve great heights.

The American Family Association's Bryan Fischer said on his blog that:

Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court.

Wow. No lesbian? Really? No matter how qualified?

That's as stark a statement of discrimination as I can imagine.

And that's what we're up against. That mentality of the extreme right that shrieks in anger (which is really their fear) if anyone not part of their club gets close to their power.

Hate-mongers aside, I agree with Andrew Sullivan, who said on his blog that knowing if Elena Kagan is Gay is as material as her being Jewish. If she hid being Jewish, it would be weird and offensive, right? Same deal here.

I'm sure she'll be asked. And I hope she'll answer proudly either:

Yes, I'm a member of the queer community.


No, but I'm a straight Ally of the queer community, even more so from this experience of the prejudice they face.

But I hope she doesn't take the 5th and avoid the question. Because at the end of the day, we need to change things so one's sexual orientation is NOTHING to hide. But instead, something to celebrate.

I don't really care if Elena Kagan is a lesbian (though the sense of representation I'd feel if there was an openly queer justice sitting on the high court would be a nice thing.) But you just have to look back in the news a couple of days to be reminded that just having same-sex passions doesn't necessarily make you a friend, or even an ally, of the Gay (GLBTQ) community. (George Rekers, anyone?)

I don't care if Elena Kagan is a lesbian or a straight woman of a certain age who's never been married. All I care about is knowing if she'll be a fair justice, and an Ally to our Queer community, as we fight for equality in the decades ahead.

I'm sure there's some people who feel, like with actors, or sports figures, that a supreme court justice coming out is something to be done from the safety of retirement or after one is sitting with a lifetime appointment to the highest court in the land.

And that may very well be the Obama Administration's strategy.

And I may be naive in what I'm about to say, but I'm going to write it anyway:

Hiding sucks. If teenagers can find the strength to be real and fight for the right to attend their Prom with their same-sex girlfriends (like Constance McMillen), then by golly Adults in power should find that strength, too.

If Elena Kagan, US Solicitor General and nominee to the US Supreme Court is a lesbian, let her come out. Let liberals and fair-minded conservatives rally to her side and her cause, and let's have the WAR on the merits of her qualifications.

Let's shame those little-minded bigots who say that "no lesbian is fit to serve" and out-vote them and prove them wrong.

Let's stand up for ourselves, our community, and the teens coming after us.

Come on, Elena Kagan. The truth.

To add to the mix, as Dean of the Harvard Law School Elena Kagan rallied against "Don't Ask Don't Tell," and fought the military's recruitment on her campus.

In an email to students and faculty at the time, Kagan responded to the "Don't Ask, Don't Tell" policy, stating: "I abhor the military's discriminatory recruitment policy."

But then there's this report, that in answer to a questionnaire regarding her appointment to U.S. Solicitor General, she said:

There is no Federal constitutional right to same-sex marriage.

It's corroborated by CBS news:

If Kagan is confirmed, "The hope of a nationally recognized right to gay marriage is over," writes William Jacobson, associate clinical professor of law at Cornell Law School.

Jacobson notes that in a questionnaire she filled out as a nominee for solicitor general, Kagan unequivocally wrote, "There is no federal constitutional right to same-sex marriage."

The issue may come before the High Court because of a challenge that has been filed against California's Proposition 8, which bans gay marriage.

Huh. That's disappointing.

So, what do you think? Should Elena Kagan come out as whatever she is? And I know it shouldn't matter, but would it matter to you either way?


Anonymous said...

I couldn't care less what her sexual orientation is.

And correct me if I'm wrong, but I think that stating, "There is no federal Constitutional right to gay marriage" is not the same thing as saying that gays shouldn't be allowed to marry. Since we don't know what the question was, it's hard to interpret her answer. She may, for example, view marriage as a state (not federal) issue. Also, I think one could hold the view that marriage in general--any marriage--is not a Constitutional right, but that if a government grants marriage licenses at all, then it must not discriminate in its issuance of those licenses. (This is just some amateur speculation. I'm not a lawyer.)

But it's interesting that this question is being raised at all--because for the last several nominees, abortion has been the litmus test. Will it now be gay marriage?

Lee Wind, M.Ed. said...

Anonymous may 12, 2010 3:49pm:

you make a very good point about the subtleties of how her marriage quote might be interpreted. Thank you for that.

And yes, it is interesting that the litmus test seems to have shifted...

but does that mean the religious right is giving up on the anti-abortion fight, or just that they feel that fighting gay marriage energizes their base and donors more effectively? I'm sure there have been studies done in which they analyze which issues are more incendiary (and profitable) for them to exploit.

Good stuff to consider.

Thank you for joining the conversation,

Colleen said...

What bothers me about this is the main reason why her sexuality is being questioned is because she is a 50 year old unmmarried woman. If she was a man would this be an issue at all?