Should we ask if Supreme Court nominee is gay?

[May 17, 2010]  BERLIN (AP) -- She plays softball. Huge hint, right?

She's 50, single and has a short haircut. Yup, definitely a lesbian.

Or is she? And if so (though that appears to be a big "if"), so what? Should it matter?

These are questions that have circulated about Elena Kagan for a while. But since President Barack Obama introduced her as his next nominee to the U.S. Supreme Court a week ago, the speculation has never been greater -- or the handling of it more awkward.

It's a sign that, in a nation where gayness is as mainstream as ever, sexual orientation is still a delicate topic for anyone in America, across the spectrum of beliefs and politics.

"Even the leadership of the Democratic party is still uncomfortable handling the issue," says Kenneth Sherrill, a political scientist at New York's Hunter College who specializes in the politics of gay and lesbian rights.

"They don't know how to handle the question with a 'So what if she is?'"

And should we even be asking, anyway?

Polls, after all, show that Americans are increasingly accepting of lesbians and gay men. Popular TV shows like "Modern Family" often have gay characters and plotlines. And these days, it's common for people to say they have a family member or friend who's gay.

Yet this also a country where, for gay public officials, coming out is still often a big deal. And while many Americans are generally more accepting of gay men and lesbians, only 39 percent of adults support the legalization of same-sex marriage, according to a recent poll from the Pew Research Center.

Those are tough issues to ignore when you're talking about the highest court in the land, which may well end up tackling the issue of same-sex marriage at the federal level.

"In a perfect world, we would not be talking about this. However, it is understandable that, at this time, it would be a risk for a Supreme Court nominee to be perceived as a homosexual," says Mark Osler, a professor at Baylor Law School in Waco, Texas, who has argued cases before the Supreme Court.

"It would appear, at least from the Obama administration's reaction, that they don't think the country's ready for that conversation," he says. "And they may well be right."

The irony in all of this is that Kagan may very well be straight.

A White House official told The Associated Press on Friday that Kagan said she was not a lesbian after media reports on the issue first surfaced while Obama was contemplating his choices for the court. The official would provide the statement only on condition of anonymity.

Eliot Spitzer, who attended Princeton with Kagan and who resigned as New York governor over a prostitution scandal, told Politico: "I did not go out with her, but other guys did."

The recent days' eruption of conversation, though, isn't the first. On April 15, four weeks before Obama nominated Kagan, the White House rebuked CBS News for publishing an online column by a Republican blogger who wrote that Kagan could become the "first openly gay justice."

White House spokesman Ben LaBolt publicly criticized the item, saying it made "false charges," a term that upset those who thought the word "charges" made it sound like there would be something wrong if Kagan were a lesbian. LaBolt later said he was referring to the blogger's suggestions that Obama had an ulterior political motive: to please gay rights activists important to his campaign operation.

Then came the announcement last Monday that Kagan was the president's choice. By day's end, "Elena Kagan personal life" was among the top searches on Google, an indication that the public was curious about more than just her stance on the issues.

Some say that posing the sexual orientation question is just another way to undercut powerful women who are routinely held to a different standard for everything from the way they dress to the way they wear their hair, or even their emotions.

"No man (who's nominated for the Supreme Court) would be asked this question," insists Birute Regine, author of the book "Iron Butterflies: Women Transforming Themselves and The World."

Back in 1990, when now retired Justice David Souter was confirmed, his "bachelor" status was noted but his sexual orientation was never questioned, at least not publicly. Gay rumors did, however, regularly circulate about former Attorney General Janet Reno and about Donna Shalala, the former head of the U.S. Health and Human Services.

Shalala responded to claims that she was a lesbian that came not from conservatives, but from a gay organization whose aim was to "out" public officials. "Have I lived an alternative lifestyle? The answer is no," she said in an interview with The Capital Times newspaper in Madison, Wis., in 1993, when she was a nominee for her federal post.

Though no male Supreme Court nominee has faced these questions -- nor have the women on the high court, who have all been married -- the fact is that male public figures, whether politicians, celebrities or sports figures, regularly deal with speculation about their sexual orientation, too.

Rumors that New York Mets catcher Mike Piazza was gay were so persistent, for instance, that he had a press conference in 2002 to make it clear that he was straight. At the time, he said that players would accept an openly gay teammate. "In this day and age, it's irrelevant," he said. "I don't think it would be a problem at all."

It would seem that it's about as "irrelevant" today, though few believe a similar news conference from Kagan is likely.

Even without one, though, this isn't a question members of the mainstream media usually ask. And some think that's the way it should've stayed.

"The press needs to be grown-ups themselves and decide that there is no reason to write about this aspect of a person's private life," says James Gomes, director of the politically oriented Mosakowski Institute of Public Enterprise at Clark University in Worcester, Mass. The media, he says, "should be more dignified."

Regardless, many bloggers from a wide spectrum of viewpoints continue to call for Kagan to declare her sexual orientation.

"It's time we got over the myth that what a public servant does in his private life is of no consequence," wrote Bryan Fischer, who blogs for the conservative American Family Association and doesn't think a lesbian should hold such a powerful post.

Some gay bloggers, meanwhile, implied that Kagan should make a public statement out of respect for herself and the gay community.

"In a free society in the 21st century, it is not illegitimate to ask," wrote Andrew Sullivan, a gay blogger for The Atlantic. "And it is cowardly not to tell."

[Associated Press; By MARTHA IRVINE]

Martha Irvine is an AP national writer. She can be reached at [e-mail] or via http://twitter.com/irvineap.

AP reporters Charles Babington and Julie Pace in Washington contributed to this report.

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