Why force an issue that distracts from the important details facing Elena Kagan's Supreme Court nomination ... like her qualifications and strengths?

Elena Kagan’s sexual orientation: Do we need to know?

Andrew Sullivan is the loudest voice among many in our community who is demanding to know the sexual orientation of Elena Kagan, President Obama’s most recent appointee to the Supreme Court of the United States.  He is fueling speculation and turning on the heat usually reserved for people like anti-gay George Rekers and other enemies of our community whom people speculate may be closeted.  This is not the case in regards to Kagan, but even so the LGBT community with the rest of America is playing the “Is she or isn’t she?” game.

We know what fuels our enemies desire to know: a deep-seated belief that no gay or lesbian person should be nominated to the SCOTUS. Furthermore, their incendiary language and accusations are expressed with the intent to send the message to the rest of us that the closet must be where LGBT people remain (ironically, while demanding Kagan be out). This double standard is nothing new, but it is losing its power except in positions of immense power, prestige or visibility.

By demanding to know her sexuality, are we playing in to the Religious Right’s hand?  I think so.  In our community two of the most important values that often conflict are pride versus prejudice. The values pride reinforces are inherent worth and value — particularly in religious term. Taking back religion is crucial because religion has been used as one of the greatest weapons to shame us.

Just as important though, is privacy.  Not privacy because we are ashamed of who we are (though sometimes that does contribute) but because we deserve the right to make safe or even sometimes savvy choices. In a heterosexist world, there are those who choose the closet (even momentarily) to survive or to thrive.  Demanding Kagan to reveal her sexual orientation takes away her privacy and let’s face it, makes the statement that it does matter when in so many other ways we say it doesn’t.  Furthermore, will anyone be happy if she admits to be straight? Instead, the speculation will continue — why participate in this tabloidization of our culture?

There are those who may wring their hands and say that is selling out, as I was wont to do earlier in my life, but I believe that unless we are in someone else’s shoes and they are not harming us let them make that choice.  As a Jew, I take tremendous pride in my cultural affiliation with Kagan who is brilliant, charismatic and engaging and so I understand why we would want to affiliate with her if she were a lesbian. But until that is confirmed to be true, why force an issue that distracts from the important details facing her nomination like her qualifications and strengths?

We should not forget that there are costs in choosing either pride or privacy and that we each should have the privilege to choose for ourselves. When I was 23, a burgeoning gay activist who recognized that change was not only political but spiritual, I decided to apply for rabbinical school.  I told myself if accepted, I needed to be out in every facet of my life to attain my understanding of spiritual integrity.  Revealing that I was gay to a mentor (who unbeknownst to me was closeted),  he told me that I would never achieve my professional potential if I was out; the best and most prestigious pulpits would be out of my capable reach — if I could get any pulpit at all. I treasure that I knew so young not to take his advice. No prestige was worth it, if I needed to stay in hiding.  I would never reach my human potential in the closet.  Making this hard choice at first caused me to condemn others.

I was quietly furious with friends who were closeted Catholic priests and the rabbinical students at Jewish Theological Seminary who would call me wrestling with their choice to remain in the closet and judging me for being too out. I once saw everyone else’s choice to remain in the closet as an affront to the choice I made. Many activists will hold this position when it comes to Kagan. Determining prematurely that “she is,” they will and have condemned her for being closeted and hypocritical. And they will do this without examining that their conclusion is based on speculation.

I no longer feel the need to have other people’s choices bolster my own. While I prefer people’s choice of pride over privacy, we cannot ignore the irony that if she were publicly out, if indeed she is, then she would not be in this position in the first place.  Her privacy has been an asset to her, but only if she is.

Rather than continue to erode the right to privacy that I believe we all deserve, if we LGBT folks are concerned about people living in the closet then we need to continue the work that will allow anyone to be nominated to the SCOTUS or the presidency without the worry that one’s orientation is a factor or seen as a “smear.” To mislabel our invasive curiosity as a political right to know is to deny a spiritual sickness of labeling and stereotyping that infects our community like every other community.

While many of us love to play the “Is She or Isn’t She” game, it ceases to be a game when playing it supports the very people who seek to harm us.



Joshua Lesser has served as the Rabbi at Congregation Bet Haverim in Atlanta, Georgia for ten years.  As an LGBT civil rights activist and as a life long learner, he is proud to be one of the editors of  Torah Queeries: Weekly Commentaries on the Hebrew Bible. He is the founder of The Rainbow Center, an organization to help address gay, lesbian, bisexual and transgender inclusion in the Jewish and greater community.  An interfaith bridge-builder he is a past president of The Faith Alliance of Metro Atlanta.