THE BLOG
05/25/2010 12:30 pm ET Updated May 25, 2011

The Swing Vote

The limited view of Elena Kagan's sexuality is disheartening -- especially for queer rights.

Even before Kagan was nominated to the Supreme Court, bloggers and journalists were frantically vetting rumors about her sexuality. As early as mid-April, Ben Domenech floated the possibility that Kagan might be the "first openly gay justice," prompting a swift and forceful rebuke from the Obama Administration and the removal of the post by CBS. Prominent bloggers like Andrew Sullivan, Richard Kim, and Marc Ambinder have revived the perennial controversy about outing and openness, unsubstantiated rumors have spread like wildfire, and right-wing groups have gone ballistic over the idea that a lesbian justice might stealthily slip onto the Supreme Court.

In response, Politico ran a story -- "Elena Kagan's Friends: She's Not Gay" -- which made vague references to Kagan's past liaisons as proof of her heterosexuality. In the piece, the nominee's former roommate attested that they "talked about men -- who in our class was cute, who she would like to date, all of those things" and Eliot Spitzer recalled that he "did not go out with her, but other guys did." And with that, juridically speaking, the prosecution rested.

The discussion of Kagan's sexuality has been disheartening -- and not just because it's not our business or because her sexuality shouldn't matter. Most of all, the discussion has been troubling because it makes it painfully obvious just how retrograde our sexual politics actually are.

Decades after the sexual revolution and lesbian feminism and the advent of queer theory, the is-she-or-isn't-she debate revolves around a profoundly false dichotomy. With little meaningful information on either side, the media points to Kagan's interest in men during law school as evidence that she's straight, just as bloggers use her alleged partnership with a woman as evidence that she's a lesbian. The idea that she might be bisexual or have relationships with different people without needing to identify as queer has been stunningly absent from the discussion, even by well-meaning LGBT bloggers and LGBT organizations who ought to know better.

It doesn't take a queer theorist to point out that the relationships you have in college don't indelibly and permanently mark your sexual orientation, nor should it take a queer theorist to suggest that some people might have satisfying relationships with men and women -- or not find those terms useful at all. What's troubling about the treatment of Kagan's nomination isn't just the homophobic and anti-feminist bent of a lot of it, but how it makes our static, unimaginative views on sexuality so glaringly apparent. The ubiquity of the is-she-or-isn't-she debate is a depressing indication of how narrowly we conceptualize gender and sexuality after all the visibility of the LGBT movement, revealing an obsession with categories without a hint of was-she-or-has-she-ever-been.

The implicit assumptions and false dichotomies of the discussion thus far have revealed a troubling inability of the media, the intelligentsia, and many queer commentators to think realistically and progressively about sex and sexuality. In the past week, the media struggled to make sense of anti-gay George Rekers, who went on vacation with a male sex worker, or Queen Latifah, who just bought a house with her female personal trainer, using "gay" and "straight" uncritically and unconvincingly to make sense of situations that seem to defy those categories.

And while Kagan's romantic and sexual histories make headlines, virtually nobody is making the far more important connection to what this says about our sexual politics and how they shape our nation's laws and policy. As LGBT groups and commentators celebrate the prominence of gay, lesbian, and (increasingly) transgender politicos, they don't seem particularly concerned about how bisexuals and queer people fare in the political arena - and indeed, how frantically they themselves try to pin folks down as soon as they enter it. As a result, any kind of fluid or queer sexuality -- including bisexuality -- is largely relegated to the realm of pop culture, hardly making the kinds of inroads that definite and "respectable" gayness is making in politics and the law. The most telling thing about Kagan's nomination could be whether someone can ascend through the morass of sexual politics in the US without defining her sexuality at all.

Indeed, to the extent that Kagan's sexuality does matter, it may not be because she's gay or straight. The law's views of sexuality are notoriously reductive and rigid, and much of the battle for the rights of queer people in the US has been predicated on the innateness and stability of sexuality. If a lesbian on the court might perceive some things differently, it would mean that much more to appoint someone who understands firsthand how retrograde the law's understanding of diverse, fluid, and complex sexualities can be. A bolder sexual politics might raise questions that gay and lesbian advocates have been unwilling -- often for good reason -- to raise. To what extent does equal protection depend on the immutability of sexuality - and what does it mean for marginalized groups if their sexuality is more complex than that? How do "separate but equal" arrangements affect those who might be impossible to separate? In what ways are race or gender analogous to sexuality, and to what extent might persistent but potentially mutable characteristics like religion, ability, or political affiliation matter more? What's relevant in considering the gender or sexuality of people under the law - and who makes that call? And do marriage, Don't Ask, Don't Tell, non-discrimination laws, and other pressing issues depend on plaintiffs being wholly and solely gay?

Of course, that is not to say that Kagan will bring that critical perspective to the bench. But it does suggest that the pundits and politicians who have spilled ink and wasted time fighting about her sexuality are missing a much larger point. The fact that the idea of a queer or bisexual justice seems so far from the realm of possibility that it hasn't merited debate should be worrying -- not least of all to those progressives who want the law to reflect the experiences of a diverse constituency and have applicability in people's own lives. Pundits from all corners might consider taking a moment to give Kagan a break and think instead about the sexual politics of the judiciary itself -- to use this opportunity to think of how justice, rather than justices, might be at stake.