May 12, 2010 at 9:05 am EST | by Chris Johnson
Kagan’s record, sexual orientation draw scrutiny

Solicitor General Elena Kagan, a U.S. Supreme Court nominee, could be asked to address past comments on ‘Don’t Ask, Don’t Tell’ and same-sex marriage during her confirmation hearings. (Photo by Lawrence Jackson; courtesy of White House)

President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court is inspiring varied reactions, ranging from excitement to caution, as questions linger about her record on LGBT issues.

Many LGBT advocacy groups are pleased that Kagan opposed military recruitment on Harvard’s campus because “Don’t Ask, Don’t Tell” violates university non-discrimination policies, but others are waiting for her to clarify her positions on LGBT issues in congressional testimony before the Senate.

Meanwhile, questions about Kagan’s sexual orientation distracted attention from her record this week, as some anti-gay conservatives — along with more than a few LGBT bloggers — speculated that she is a lesbian.

Obama nominated Kagan to fill the seat that will be vacated at the end of the term by retiring Associate Justice John Paul Stevens. If the Senate confirms her to the position, there would be three women sitting on the Supreme Court, the most women the bench has seen in its history.

Prior to her tenure as solicitor general, in which she defended federal law before the Supreme Court, Kagan was a clerk for former Associate Justice Thurgood Marshall, an associate White House counsel for former President Bill Clinton and dean of Harvard law school.

In a statement, Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, said the Senate would consider Kagan’s nomination this summer and should confirm her nomination before the August recess.

Joe Solmonese, president of the Human Rights Campaign, in a statement, praised Obama for selecting Kagan to serve on the bench.

“We applaud President Obama for choosing Elena Kagan to become our nation’s next U.S. Supreme Court Justice,” Solmonese said. “We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans.”

Doug NeJaime, a gay associate law professor at Loyola Law School, expressed similar excitement over the nomination of Kagan, whom he called a “fantastic” choice to serve on the bench.

In 2008, NeJaime said he attended a Harvard gay and lesbian caucus conference where Kagan moderated a panel with sexual orientation law scholars. He noted that Kagan “was clearly really knowledgeable about these issues.”

“I think she’ll do a good job in dealing with them and hopefully having conversations with other justices — getting them more on board with what LGBT legal issues entail,” NeJaime said.

But Hayley Gorenberg, deputy legal director for Lambda Legal, was more cautious about embracing Kagan’s nomination and said she was awaiting the Senate confirmation process.

“She’s just been nominated, and we are studying everything that we can on her,” she said. “We’re looking toward the confirmation hearings so that we can learn more about her positions on legal areas that are core to the right of LGBT people and people with HIV.”

In particular, Gorenberg said she’s looking to see whether Kagan will separate herself from the Justice Department’s legal briefs defending challenges to the Defense of Marriage Act and “Don’t Ask, Don’t Tell,” which occurred under her watch during the Obama administration.

“Those briefings give us concern, and we certainly voiced it with the Obama administration,” Gorenberg said. “So, what we need to see now is her views apart from an institutional position, and that’s what we’re looking toward in confirmation hearings.”

‘Don’t Ask’ stance
could be obstacle

One potential obstacle that Kagan may encounter on her path to confirmation — despite the favor it may win her among LGBT supporters — is her opposition as dean of Harvard law school to military recruiting on campus because of “Don’t Ask, Don’t Tell.”

In October 2003, Kagan wrote in an e-mail to students that military recruiting on campus caused her “deep distress” and that she “abhor[s] the military discriminatory recruitment policy,” according to a recent report in the Washington Post.

She was quoted as calling the recruitment policy in the U.S. military “a profound wrong — a moral injustice of the first order.”

In 2005, Kagan was also one of 40 Harvard professors who signed a friend-of-the-court brief in favor of an appellate court ruling overturning the Solomon Amendment, which would have allowed colleges to limit the military’s presence at campus recruiting events. The Supreme Court unanimously disagreed with the lower court ruling.

Conservative senators could pounce on Kagan’s views on military recruitment on campus as dean of Harvard law school as reason to vote against her confirmation.

Sen. Jeff Sessions (R-Ala.), ranking Republican on the Senate Judiciary Committee, said in a statement published shortly after her nomination that Kagan’s position is “deserving review.”

“This is a significant issue for me since I worked hard for the passage of the Solomon Amendment,” Sessions said. “Her actions in this case, along with other issues, will need to be addressed, and Ms. Kagan will be given a fair opportunity to respond.”

Sen. James Inhofe (R-Okla.) said Monday he plans to vote against Kagan’s confirmation — making him the first senator to commit to a “no” vote — because of her position on campus military recruitment.

But NeJaime said he didn’t think Kagan’s position would be problematic because it’s “very much in the mainstream of the legal academic community,” and other law schools besides Harvard have challenged the constitutionality of the Solomon Amendment in court.

“It’s not like she was even completely out in front on that issue,” NeJaime said. “I also think public sentiment against ‘Don’t Ask, Don’t Tell’ is pretty high, and so it’s not a non-mainstream position.”

But Gorenberg said Senate opposition to Kagan’s confirmation because of her position on military recruitment is already apparent.

“We can already see that the positions that she promoted as dean that were targeted against discrimination against LGBT people — that those positions are already the subject of potshots from anti-gay extremists,” Gorenberg said. “We saw that instantly upon her nomination, if not before.”

Kagan’s views on military recruitment also raise the question of whether she would be asked to recuse herself in the event a “Don’t Ask, Don’t Tell” case came before the Supreme Court while she’s on the bench.

Gorenberg said “it’s not clear” that Kagan would need to seek recusal in such a situation based on her comments as dean of Harvard law.

The Servicemembers Legal Defense Network didn’t immediately respond to the Blade’s request to comment on Kagan’s statements on military recruitment or whether she would have to recuse herself if a “Don’t Ask, Don’t Tell” case reached the high court.

Same-sex marriage
a potential issue

Another topic that may come up during Kagan’s confirmation hearings is her position on same-sex marriage and whether she thinks the U.S. Constitution provides for marriage rights for same-sex couples. Such a position would be especially important for LGBT people because cases on same-sex marriage could be on their way to the Supreme Court.

Kagan previously denied that the U.S. Constitution grants a right to same-sex marriage in a questionnaire answer prior to her confirmation hearings to become solicitor general.

“There is no federal constitutional right to same-sex marriage,” she wrote in a response to a question on the issue.

In response to a subsequent question, she added that she doesn’t believe she expressed an opinion on the question before that time.

Kagan’s response could be troubling for organizations behind federal lawsuits seeking to overturn the Defense of Marriage Act or bans on same-sex marriage within states.

The American Federation for Equal Rights, the organization behind the Perry v. Schwarzenegger case seeking to overturn California’s Proposition 8, didn’t respond to the Blade’s request to comment on the Kagan nomination.

A spokesperson for the Gay & Lesbian Advocates & Defenders — which is behind Gill v. Office of Personnel Management, a case seeking to overturn part of DOMA that prohibits federal recognition same-sex marriage — said her organization isn’t commenting on the Kagan nomination because the lawsuit could go to the Supreme Court.

On the Perry case, NeJaime said Kagan’s comment on same-sex marriage could be relevant depending on whether the court takes up the case as a broad question about constitutional rights to same-sex marriage or, more simply, California’s legitimate interest in passing Proposition 8.

“I also think we don’t really know what her position will be on an issue like that until the issue is briefed and until it’s actually at the court,” he said. “I’m pretty confident that she is at least open-minded to LGBT claims under the federal Constitution.”

Gorenberg said she’s “not sure” whether Kagan’s comments would be a predictor of how the nominee would rule if marriage cases came before the Supreme Court.

She said the remarks raise the question of what Kagan meant in her questionnaire answer, but noted that it’s unknown whether Kagan’s position would become more clear during confirmation hearings.

“We would always like to know what would happen in the future on a specific issue, but it’s not surprising to us — for any nominee — that we don’t get a specific forecast on a case because it’s just not standard that the nominees ever give them to us,” Gorenberg said.

Still another issue surrounding the nomination is whether Kagan, who’s unmarried, is a lesbian.

In a deleted CBS News posting published prior to the announcement of Kagan’s nomination, conservative blogger Ben Domenech wrote that confirmation of Kagan would make her the “first openly gay justice.”

The White House disputed Domenech’s characterization of Kagan as an out lesbian and said he was making false charges. After the posting was deleted, Domenech maintained that he heard discussion about her sexual orientation.

In a later posting on the Huffington Post, Domenech wrote that he “erroneously believed” Kagan was an out lesbian because “it had been mentioned casually on multiple occasions by friends and colleagues — including students at Harvard, Hill staffers, and in the sphere of legal academia — who know Kagan personally.”

Sessions’ office didn’t respond to the Blade’s request to comment on whether the matter was of concern to the senator or whether he would expect questions on the issue to come up during the confirmation hearings.

NeJaime said he didn’t anticipate discussions of Kagan’s sexual orientation to arise during her confirmation hearings, but said it would be “sad commentary” if the matter became a stumbling block for her.

“We don’t know about her sexual orientation one way or the other, and I don’t really anticipate it being an issue that anyone takes up,” he said.

Gorenberg said she didn’t have any information on Kagan’s sexual orientation and didn’t know how lawmakers would respond to speculation that she’s a lesbian.

“There are a lot of senators out there and I don’t know [who] may or may not be inclined to go after any nominee based on their sexual orientation,” Gorenberg said.

She said one of Lambda’s central tenets is that people shouldn’t face discrimination based on sexual orientation and noted that principle could be applied in Senate confirmation hearings.

A friend of Kagan’s told Politico this week that Kagan is not a lesbian.

“I’ve known her for most of her adult life and I know she’s straight,” Sarah Walzer, Kagan’s law school roommate, told Politico. “She dated men when we were in law school, we talked about men … She definitely dated when she was in D.C. after law school … and she just didn’t find the right person.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • As terrible as it sounds, I don’t trust her, and assurances from the Obama administration about her being a Progressive who will work for equality doesn’t help. If anything, Obama’s (our fierce advocate) endorsement makes me distrust her motives more. I am very concerned about her comments against same-sex marriage, and a perceived support for the repeal of Don’t Ask Don’t Tell isn’t sufficient to remove my fears.

  • Yeah, so, she’s str8 (and likes to “play around”?), like all the other “str8” men she’s required to emulate and be chummy with and be “one of da guys” with. They’re not “gay”, she’s not “gay”, nobody’s “gay”, I got it, ok, fine. Like Towleroad maybe, only “homosexual tendencies” haha. Still, people who “only play around” always feel it necessary to “butch up” and declare that out and proud authentic americans are only 3/5th of a full citizen. Will that be Obama’s Supreme Court legacy? Hope not.

  • If Elena Kagan’s sexual orientation becomes an issue in her Supreme Court nomination, I, for one will be very interested in who makes it an issue.

    Former Justice David Souter had been rumored for decades to be gay because he had never married.

    Yet it was Souter — nominated by President George H.W. Bush — who ruled with the majority in two landmark LGBT rights rulings handed down by the Supreme Court: Romer v. Evans (1996), that struck down Colorado’s infamous anti-gay Amendment 2; and Lawrence v. Texas (2003), which overturned its infamous 1986 Bowers v. Hardwick decision and fully decriminalized homosexual relations.

    With confirmation hearings scheduled to begin on June 28 — the day after the big “Stonewall Weekend” Pride celebrations around the world — it will be interesting to see how those hearings turn out.

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