May 20, 2010 | by Kenneth Jost
What gays want to hear from Kagan

Chairman Leahy, ranking member Sessions, senators:

Thank you for the opportunity to appear before you as President Obama’s nominee to serve as a justice on the Supreme Court of the United States. Before turning to substantive questions, I would like to tell you a little bit about how I got here.

My parents — my father a lawyer and my mother a public school teacher — instilled in me from an early age an interest in public service. In high school, I developed an interest in the law, which eventually took me to Harvard Law School and a legal career.

When I came of age in the 1980s, women in the United States had come to expect that they could realistically hope to “have it all” — career, romance and family. In college and law school, I focused on academics and career but not to the exclusion of those other goals. I dated, but none of the men proved to be Mr. Right. Maybe I’m not the marrying kind, as they used to say.

My non-marital status, if you will, has occasioned questions and speculation about my sexual orientation. Years ago, these questions would not have been asked because same-sex relationships were simply not discussed. Years from now, perhaps these questions will not be asked because there will be greater respect and tolerance for the diversity of personal relationships.

But today the status of gay men and lesbians, in law and in society, is very much an issue. So this most personal characteristic sometimes becomes a subject of public discussion. That is why I volunteered information about my personal life to White House officials when I was being considered for nomination as solicitor general. And why I’m content to put that information on the public record now. I am a straight, female American.

As dean of Harvard Law School, I dealt with one of those issues affecting the status of gays. I opposed the “Don’t Ask, Don’t Tell” law on the ground that it discriminates against gay men and lesbians who wanted to serve our country in the armed forces. For a time, military recruiters were subject to the law school’s policy that required employers using our Office of Career Services to have a nondiscrimination policy.

We changed that policy when the Supreme Court ruled that federal law required us to provide assistance to military recruiters without regard to that policy. Throughout those events, my views and the policies that I followed were not anti-military, as some have suggested, nor pro-gay in a narrow sense but pro-equality.

I respect the Supreme Court’s precedent in that case. I also respect the court’s other precedents on issues particularly affecting gay men and lesbians. In Lawrence v. Texas, the court ruled that the government cannot make the private, consensual sexual conduct of adults a crime. In Romer v. Evans, the court ruled that the government cannot pass a law motivated solely by animosity toward gays or any other segment of society. Those rulings help make this country more free and more just, for gays and straights alike.

With these introductory remarks, I’ll be happy to answer your questions.

Kenneth Jost is Supreme Court editor of CQ Press and author of “The Supreme Court Yearbook and Supreme Court From A to Z.” Reach him via jostonjustice.blogspot.com.

1 Comment
  • This is truly brilliant Kenneth, thank you. I hope that Associate Justice Nominee Kagan or someone close to her will forward this well-written testimony to her.

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