I have no idea. Until last night the idea hadn't, honestly, occurred to me; but, apparently, it's been kind of discussed, or known about... or something, while Kagan was at Harvard as Dean of the Law School. In a blog post about top candidates for Supreme Court Justice, Ben Domenech included Kagan - the current Solicitor General (and the first woman in that post) - as one of his examples, and lauded the fact that she'd be an openly gay Justice. The post was picked up by CBS News, which has been using Domenech as a blogger (more on that in a moment). And then, apparently, all hell broke loose.
The White House had a spokesperson come out and complain that Kagan was facing "false charges" of being a lesbian. CBS asked Domenech what evidence he had for the claim. Domenech, it turned out, had none... but didn't realize it was an issue. And he was backed up, in terms of this being sort of understood, by Julian Sanchez and Matt Yglesias, two bloggers not generally sympathetic to Domenech or his conservativism.
Like I said... I have no idea. Kagan's 50, unmarried, no one's ever mentioned a man or a potential husband, she certainly seems to have pursued a professional career with no interest in marriage or children... but I'm loath to draw conclusions. In one sense, of course, it hardly matters. Lesbian or not, Kagan seems like an interesting choice for the Court, and I'm among those who'd be pretty well pleased if she were nominated (Bill Clinton nominated her for the DC Circuit Judge slot that eventually went to John Roberts, on his way to Chief Justice).
What interests me is this official "we shouldn't care if she's a lesbian... so don't say she is" approach to dealing with the discussion.
The thinking behind this logic has been rolling along for a while; it drives some of the discussion of gay progress, and gay anger, in these Obama-led times, issues that I discussed, as others did, during the primaries and the election season. Barack Obama, clearly, was a better choice for gay people than John McCain. I'm not sure, then or now, that he was a better choice than Hillary Clinton... but that's not the point, not now anyway. However, I think the larger problem for gay people is this illusion, often perpetuated these days, that gays have somehow made more progress than has actually occurred, only to discover, in unpleasant moments, that things are as bad, or worse, then they've ever been.
Gay marriage and "Don't Ask Don't Tell" are obvious, hot button examples... but this goes to, I think, some of the depression that followed the prom story in recent weeks, and underscores what's not happening with Kagan. There's this notion that people are out, that gays are accepted, that our society is more accepting and tolerant... as long as we don't push it too far. It doesn't matter if Elena Kagan's a lesbian... just don't suggest that she is one.
We forget, really, that despite suggestions of progress... many prominent people are not out. Still. We ignore that people who are out, in government, still face surprisingly high hurdles in, say, the confirmation process for appointed offices. The illusion is filled in, I think, because, being out, in small ways, and in many places, isn't a big deal, and gay people quietly live within certain limits. That, and we convince ourselves that a couple of reality shows about hairdressers and fashion designers amounts to progress.
My friend J likes to point out, whenever a new sex scandal pops up, that there's an unspoken double standard in politics that never gets brought up: all these stories about married men who are discovered with mistresses and hookers tend to underline the fact that single men, in fact, can't get elected to high office. Yet we never mention it, never even to point out that, for many of the men caught in the scandal, wouldn't face social rejection or ridicule if they were not married. Sleeping around, being somewhat promiscuous... no big deal. Just don't wear a ring... but if you don't, people will be wondering about when you run for office.
If the Kagan story has legs - and I suspect it does - we are bound to be told that there's a "double standard" when it comes to gay people, or women... or something. But there's not a double standard; there's a lack of any "standard" at all. There's a conviction, in the culture, that there's this acceptance of gay people, when in fact, there really isn't. It's an illusion. And into our clouds of illusion and fantasies that it's all better now, Elena Kagan's possibly being a lesbian challeges two things: the debate over what information is public or private, which shifts like sand... and the illusion that being gay is no big deal... unless, you know, you're actually gay.
That all of this will come from Ben Domenech, of course, is no help at all; Domenech's credibility has been shot since it was revealed in 2006 that he had an extensive history of plagiarism, having fallen upwards as a "prominent conservative" into a position at the Washington Post, and the resulting scandal forced him out of that job. Domenech has toiled since, quietly but determinedly, in reestablishing some bona fides, and restoring at least his reputation as a capable writer. This won't help; it's a Journalism 101 error that CBS should have seen coming, a reminder that "hiring paid bloggers" is often shorthand for "getting journalism on the cheap" often by reducing the presence of editors, whose function is to help catch things, like unsupported assertions in posts. Like I said... I have no idea if Kagan's a lesbian or not, and really, I couldn't care less. It'd be nice if she were, nice to know that we were, as a nation, capable of acknowledging appointing a lesbian to the Supreme Court. But my standard is not the national standard... because we don't have one of those. And let's not pretend that we do.