Softball

My previous post about Elena Kagan was written before I learned that the New York Times and others had begun to question Ms. Kagan's sexuality. It was already known that she was in her early 50s, had never married and had no children. I should have predicted that if her detractors were unable to make much out of the fact that she had not appeared in court very much and was never a judge, they would sink to the bottom like a stone and go after her for the possibility she might be a lesbian. Lots of people love to trot out the Salem Witch Trials when explaining this sort of phenomenon but I think it's a little shopworn at this point.

The reality is there are many, many men and women who are qualified to serve on the U.S. Supreme Court. That should surprise no one. We have a lot of lawyers in this country, many of whom are scholarly, hard-working and are experts in Constitutional law. The interesting question is what disqualifies an otherwise qualified nominee. It's certainly not gender, race or religion any more. Is it sexual orientation, real or perceived? Certainly there are many people who would answer that question in the affirmative. There are also many people who would think that is preposterous. Put me in the latter camp.

It sometimes seems as if there are as many advocacy groups in this country as there are people. Lesbian, Gay, Bisexual and Transgendered (LGBT for those who didn't know where the acronym comes from) people have developed their own advocacy groups - some political and some social. Some focus their attention full equality and try to move the political debate by defining what true equality means or should mean. Even Republicans who advocate on behalf of the LGBT community (Log Cabin Republicans, e.g.) would say that sexual orientation should never play a role in employment decisions.

Call me crazy, but when a woman picks up a bat to play softball, it doesn't necessarily mean that she is a lesbian. Deciding not to marry or working so hard that you never find a suitable mate doesn't necessarily mean someone is gay or lesbian.

Assuming for argument's sake that Ms. Kagan is a lesbian, Senators in a position to vote on whether to confirm her as an Associate Justice should be very careful. If it is obvious that bigotry played a role in her failure to get the job, I predict that more than a few people in Washington, D.C. - many of them in Congress and other very visible positions - will wake up a couple of days after the vote on Ms. Kagan and find out that their name is on a list of closeted lesbian and gay government officials, many of them doing a fine job in their roles. Some will be married. Some will have children. Some will lose a bid for re-election. I don't advocate "outing" anyone but others don't share my views. If there is a mass "outing", it will change politics forever and those who are working hard to keep the LGBT community from achieving equality will have to work a whole lot harder than they are working now.