Elena Kagan’s sexual identity: Who cares?

I just read this post (The meme that will not die) at the Moderate Voice referring to questions about the sexual orientation of Obama’s Supreme Court nominee, Elena Kagan, and my reaction is in the title of this post – Who cares?

I don’t. I guess the 24-7 news cycle drives a lot of “news” which is really just curiosity about the private business of famous people. I see it as reporters and pundits playing out their dispositional attributions about the vague or unknown. In social psych class (which is now all over but the shouting – no, wait, I hear shouting), I teach about the fundamental attribution error. By that, social psychologists refer to the tendency among those in individualist societies (read: the U.S.) to assume observed behavior is due to personality traits of the behaving person (dispositional attributions) as opposed to the situation within which the behavior is occurring. So when some learn of a middle aged woman who is not dating a man and is not married, they might make an attribution about her sexuality, rather than her situation or other circumstances of life. Making sense of what others do is one of the fundamental cognitive jobs of humans, even though we are often incorrect, thanks, in part, to the bias toward dispositional attributions. When comes to our own behavior, we are often quick to see the role of the situation (“Lord, it was the woman you gave me”; “if only people knew what I had to put up with”), but when it comes to other people, we are not as likely to cut them situational slack. 

In any case, about Ms. Kagan, I don’t care. Nothing in my theological outlook requires it; I don’t think what excites her neurons will be of overwhelming impact in her legal decision making. I am much more interested in how her neurons conspire to inform her about the role of Supreme Court judge (interpret, not make law). And you know, on the issue of qualifications, conservative Ken Starr thinks she is a pretty bright person. Ken Starr, Baylor University’s incoming president, is no liberal.

Am I wrong?

20 thoughts on “Elena Kagan’s sexual identity: Who cares?”

  1. I’ll avoid the resurrection of the point of contention. There’s nothing to be gained by trotting down that pigtrail again.


    Interesting that you bring up Judge Walker. Oddly enough, I though he was absolutely correct in working to defend the right of the US Olympic Committee to restrict use of its name as it wishes. Even though it was a bigoted decision on their part (everyone except the Gay Olympics was allowed), they should have the right to be biased if they wish.

    (Just as the Boy Scouts should have the right to make decisions that lose them public support, preferential city deals, and United Way funds. And just like the Ancient Order of Hibernians are entitled to restrict the St. Patricks Day Parade to anyone on the planet (be they Irish or anything else) just so long as they are heterosexual. You should always have the right to look and act like a raging hateful loon, so long as you don’t do it with my money or special considerations from my government.)

    And you are right. If Judge Walker sides with Olson/Boies (who clearly made a better case than the rather poor effort by anti-marriage advocates), those opposed to marriage equality will say, “it’s because he’s gay and biased towards their militant homosexual agenda”.

    But absolutely no one made that connection with lesbian Justice Carol Corrigan who did not find for marriage in the CA Supreme Court ruling ruling. Clearly she “wasn’t biased” because she ruled the way they wished.

    Sadly, too often we measure the decisions of others through prisms of our own biases.

  2. There was in the last moths the little discussion about the california judge. He is gay, he had worked as advocate against the Gay Olympics (now Gay Games) and something about marrigae is now his case because of the standard distribution of cases to judges.

    It is good? It is a little problem. When he say yes, the conservative would come out and say: “Clearly. It’s because he is gay. He is in the gay agenda.”

    When it is a yes, then it would be nicer when it is a (liberal?) heterosexual judge. Then this is not an argument after.

    Oh, i have his name: Vaughn R. Walker Walker is one of only two known gay federal judges.

  3. Agreed…

    Morality is a very broad issue and its impact on public policy is important to assess: e.g. freedom in business vs. greed and exploitation.

    “Keeping your morals out of my life” is a popular phrase in these discussions, but with public education, increasing taxation, unfunded federal mandates and so on; a federal set of “morals” are being imposed on all of us. They are less specific that the Christian Right set of morals, but the are morals nonetheless.

    If Kagan’s sexuality (actually she is straight, but for the sake of argument, if she is a lesbian) is an expression of her moral corruption and makes her unqualified…then the morals issue should be invoked on all judges: “have they been unfaithful, did they have sex before marriage, have they been divorced, and so on?” Clarence Thomas might be excluded due to his divorce…but not due to his interracial marriage.

    To resurrect a painful argument: If Henry Hay were being appointed a Supreme Court Justice, we might be concerned with some of his attitudes about intergenerational sex. Intergenerational sex is a moral issue.

  4. ugh…. correction:

    “I certainly am not suggesting that one’s private behaviors NEVER have any impact on anyone else”

  5. Pardon me, but you are seeing this way too melodramatically


    I certainly am not suggesting that one’s private behaviors ever have any impact on anyone else.

    But in the context in which you used the phase, it begins to sounds a lot like Peter LaBarbera:

    “If Kagan is practicing immoral sexual behavior, it reflects on her character as a judicial nominee and her personal bias as potentially one of the most important public officials in America.

  6. @ Brady,

    There is nothing automatic about human beings and their political behavior or values…Kagan can be all sorts of things, Catholic, Jewish, Gay, Straight, Republican or Democrat…without it implying automatic behavior.

    @ Timothy

    That is a dangerous assertion. It is the type of thinking that justifies totalitarianism.

    Pardon me, but you are seeing this way too melodramatically:

    1. If I have a private savings account and become unemployed and can live off my savings (rather than unemployment, food stamps and housing assistance); my personal behavior has had a positive public consequence.

    2. If I have unprotected sex with someone of the opposite sex that I only know their first name and wake up in the morning somewhere else and she is gone; that may have public consequences. Such as, she might be pregnant (she may need public aid to get medical care or to support the child), I may have given her an STD or visa versa.

    3. If I eat healthily and exercise and contribute to social security for my entire life because I am so healthy, my private behavior has a net beneficial effect on the public. Especially as I am able to afford to pay for my own health insurance as a retiree.

    4. If I contribute to HIV hospice care is improves the quality of care for terminal HIV patients (if those contributions are based on my health and vitality and my surplus income—income I don’t spend on expensive vacations and other self-indulgences—that has a positive public benefit).

    As a public policy issue “private behavior between consensual adults” has its limitiations: 40% of the children in LA apparently are raised in fatherless homes.

    We live in a society which indulges the freedoms of private consensual behavior while making the public responsible for the consequences of that private behavior.

  7. Private behavior has public consequences.

    That is a dangerous assertion. It is the type of thinking that justifies totalitarianism.

    If I convince myself that your private adherence to a particular faith will result in negative consequences to me, then I have a very good reason to impose a religious mandate, a state religion so that all people can be safe. If I convince myself that your private political ideals are a threat to the common good, then I can establish one official and approved political ideology. History tells us that these are not good ideas.

    And if I can convince myself that your private sexual behavior has negative public consequences, then I can justify to myself establishing laws against your private sexual behavior, forbidding you from certain types of employment, removing your health care, banning you from adopting, barring you from military service, voiding your personal relationships, taking away your children from you, and declaring you unfit to serve as a Supreme Court justice.

    All of which have been/are being done to gay folk in the United States.

  8. David- I understand that concern. My question is whether if she is a lesbian, then does she automatically have to be an activist for such a “sexual revolution?”

  9. It would be nice to have someone immune to persuasive nonsense or silver-tongued bigotry. Someone who genuinely gets that “all men are created equal” doesn’t come with an asterisk that excludes those kind of people.

    I agree with this.

  10. As a “gay activist”, let me give you my perspective.

    It would be nice to have someone on the Bench who is not persuaded by arguments which dismiss the existence of orientation or who present ex-gays as evidence that homosexuality is voluntary (both of which have been presented in court in the past year in cases which will reach the SCOTUS). Someone who knows upfront that the lies are lies, who knows what it is like to be gay.

    It would be nice to have someone who can say, “Oh, do you mean me?” when outrageous and slanderous accusations are thrown around about the “homosexual agenda” and what “militant activists” believe. To have someone who has experienced discrimination and can laugh at claims that it doesn’t exist.

    It would be nice to have someone immune to persuasive nonsense or silver-tongued bigotry. Someone who genuinely gets that “all men are created equal” doesn’t come with an asterisk that excludes those kind of people.

    HOWEVER, we fully know that orientation doesn’t dictate what one will find in the constitution, particularly on difficult issues. We were, for example, disappointed in California that one of the justices, a lesbian, did not find that our constitution protected her own right to marry.

    My opinions about Elena Kagan comes down to this: does she believe that the constitution should be interpreted to protect only those people and only those rights that were imagined by the founding fathers. In other words, is it a document of principles, or a listing of minor limitations.

    If we argue that it protects only the people that the Founding Fathers imagined it to protect and only the rights that they envisioned, then we give the Justices the role of priests – the sole arbiters of the intentions of people who are not here to clarify for themselves.

  11. David- I think you make a very good point. But to me it seems like a lot on the right are only admitting that it is profoundly personal to candidates on the left, while they claim that candidates on the right aren’t personal–they’re neutral.

    Unfortunately what I see when we are talking about a candidate or politician that is gay is that the attack is almost automatic that this person cannot judge fairly on issues of sexuality, or secondly, that if he/she makes a decision in favor of gay marriage or other gay issues, then he/she is automatically biased.

    Surely someone can be in favor of gay marriage and gay issues on a political level without being biased. But, what I am seenig from the right is that is not the case, even if they have to fry their own at times to prove the point.

  12. @ Brady…

    I think the difficulty ahead is on the issue of transparency…not on the issue of SSA.

    If Dick Cheney were to be nominated for the Supreme Court, would he advocate for SSM because his daughter is lesbian?

    The personal is political on all sides…one couches that in traditional values, the other couches it in issues of fairness and equality.

    But it is all profoundly personal.

  13. Alan- do you mind elaborating on why you care whether she is gay or not?

    Mary mentions that she thinks conservatives might care because if she is gay she may make biased decisions. Do you agree with that?

    If a straight justice voted against gay marriage because of his faith or his dislike of homosexuality, does that make him biased?

    I find it interesting that many conservatives think that if someone does not agree with their view point, then the are automatically “biased.” Especially considering how things actually change over time. Even Scalia would seem fairly liberal if we compare his views to that of his contemporaries 50 or 100 years ago.

  14. Alan – Why do you believe gay activists are finessing this? And what evidence makes it seem she is being dishonest?

    The only thing I can see is that she is a 50 year old single woman. Is there more?

  15. I care. I don’t think I am the only one on either side of this debate who does. I believe that gay activists care a lot and just aren’t saying much as not to kill her chances at a confirmation.

    At the end of the day does it matter whether she is gay or straight? Not as much as it matters that she is honest–that would go for anyone who feels they have something to hide.

    Just my opinion.

  16. And if one must know a post at Politico quotes a friend of hers and outs her as straight:

    “I’ve known her for most of her adult life and I know she’s straight,” said Sarah Walzer, Kagan’s roommate in law school and a close friend since then. “She dated men when we were in law school, we talked about men – who in our class was cute, who she would like to date, all of those things. She definitely dated when she was in D.C. after law school, when she was in Chicago – and she just didn’t find the right person.”

  17. Good find on the Starr quote…

    I am concerned she is a heterosexist.

  18. Warren…… Am I wrong?

    LMqAO!! I see another Peter LaBarbera article in your future.

  19. I think some conservatives are concerned that if she is a lesbian she will make bias legal decisions from the bench that become the law of the land. And the liberals are waiting for the conservatives to throw a bigger fit than they have thus far.

    I really don’t care either way as long as the selected individual shows integrity throughout their career thus far.

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