What We Don't Need to Know About Elena Kagan

Elena Kagan, President Obama's nominee for the Supreme Court, may or may not be gay.

But why is her sexuality a topic of conversation in the first place?

Do we know anything, whatsoever, about the sex lives of the other 111 people who have served on the Court? (OK, with the exception of Clarence Thomas, that is.)

It would seem that the Republic has muddled through just fine since George Washington appointed the first justice, James Wilson, in 1789, without asking him, or anybody else as far as we know, about their sexuality.

The obsession with Kagan's own sexual orientation is therefore less than relevant -- it is none of our business.

While simultaneously probed by the right, afraid that a justice with some hidden "homosexual agenda" is about the receive a lifetime appointment of the Court, and progressives, who are delighted by the possibility of a progressive, gay woman joining what has become a Supreme Court tilting to the right, Kagan's sexuality is an issue.

But should it be?

American modern society has walked a long road towards acceptance of gay people. Proposition 8, and its brethren anti-gay measures across the country notwithstanding, the LGBT community is closer today to full participation in the nation's public life than ever before.

Of course, we are more than 40 years past the Stonewall Riots in New York that began to dismantle the web of legal and social restrictions on gay people. We're far away from the stereotype closeted gay man living a secret life while coming home to a "normal" suburban existence with the picket fence, wife, kids and dog.

Yet across this country, people have judged Kagan based on her looks and her lack of a husband to reach a conclusion about her sexuality. There is almost a prurient interest in her love life -- as if we really could have benefited from understanding the "real" sexuality of Antonin Scalia or William Rehnquist before they were confirmed to the Supreme Court.

Andrew Sullivan, the noted author and blogger, recently wrote in the Times of London:

She is unmarried, and apparently has no anecdotes of dates, no ex-boyfriends or girlfriends, no romantic interludes ... nothing. In 4,500 words, we do not find out even where she lives or has lived or if she lives alone. (But we do know what her brothers do for a living -- teaching). The far right has already identified her as a "lesbian homosexual"; and the gay blogosphere openly discussed her alleged lesbianism weeks ago.

But there is no confirmation of that anywhere and the White House reiterated last week that questions about sexual orientation "have no place" in judging a nominee (but her gender most certainly does). Quite how you defend this argument -- from a president whose own criterion for nominees is a real experience of how law can affect ordinary people -- is beyond me. It is also beyond most ordinary people out there.

If you type Elena Kagan into Google, you will get "elena kagan husband" and "elena kagan personal life" among the prompts for the most likely search terms. But my own attempt to inquire in as positive a way as possible last week -- I'd be thrilled to have a gay Supreme Court justice -- was simply ignored by the Obama press operation and smacked down elsewhere as an outrageous and unethical question. She is not only a blank slate as an intellectual and public figure; she is also a blank slate in other respects as well.

While we may think of our current openness towards homosexuality as progress, it is only so in the context of the last, give or take, 150 years. It was around that time that homosexual behavior became stigmatized as separate from "normal" sexuality.

For the thousands of years before, and across human cultures, "homosexual" behavior was an unremarked upon part of human existence. Going back to the Romans and the ancient world, private sexual behavior was separate from social obligations -- you married, procreated and your sexual life was a private matter, as relevant to the rest of society as your choice of wine to accompany a meal.

Only with the Victorian period, and its erection of a prudish society, does homosexuality make it into the legal code. It is at this time that human sexuality becomes a matter of state policy.

With the modern rediscovery that there is a wide variety of completely normal sexual orientations in human kind, we awoke to the diversity in our midst. Acceptance has been halting, but coming nevertheless. But were still far away from the pre-Victorian ideal of private sexual behavior being kept in the private sphere. And the interest in Kagan's sexuality proves our lack or real progress in this regard.

Perhaps her nomination, and the ambiguity about her sexual orientation, gives us the opportunity to finally break from the chains of the Victorian world.

Maybe we can stop speculating about people's sexuality -- and let them live their lives as we wish to live ours, in full enjoyment of our personal liberty, in privacy and without our sexuality being construed as an argument for or against anything other than as an expression of our unique humanity.

Let Kagan be Kagan, whatever she may be or not. Let's respect her privacy. We have plenty of other matters to attend to as we focus on the real challenges facing our country.