The Alleged Sexuality of a Supreme Court Nominee STRIKES Out

[The above photo of Elena Kagan playing softball, while an assistant law professor at the University of Chicago in 1993, touched off a firestorm of lies in the media.]

It began, seemingly innocently enough, with a grainy black and white photograph of a woman smiling broadly and preparing to swing a bat in a game of softball. The picture was placed on the front page of Tuesday's Wall Street Journal and featured Elena Kagan, who the day before had been nominated by Barack Obama to join America's top court.

But from that single photograph, combined with a two-line caption, has sprung a welter of debate this week about Kagan's sexuality, and the specific question: Is she gay? The debate has been sadly revealing about the status of lesbians in U.S. public life in 2010.

Senior White House adviser David Axelrod told reporters earlier this week that he and President Obama agree. A nominee's sexuality "has no place in this process," he said. "It wasn't an avenue of inquiry on our part and it shouldn't be on anybody else's' part."

Senior White House officials told the media today that the chatter about Kagan's sexual orientation is bizarre for any number of reasons, primarily because her friends and colleagues say she's heterosexual.

Even the conservative media agree: “Let's move this debate off Kagan entirely. That issue remains closed here. She's straight,” wrote blogger Andrew Sullivan, who is gay, today.

But within hours of the Journal publishing the photograph, issues had been raised by gay bloggers and the mainstream media alike and continue to be raised.

Why was the respected newspaper putting a 17-year-old photograph of Kagan, currently the solicitor general and the nominee to replace John Stevens, who is retiring from the U.S. Supreme Court, on its front page?

And was it seeking to imply anything other than that she once played a game of softball?

Gay commentators suggested an ulterior motive, pointing out that there was some historical link in less tolerant times between the sport of softball and the lesbian community in America, who saw it as a welcoming social activity in a largely hostile world. "It clearly is an allusion to her being gay. It's just too easy a punchline," said Cathy Renna, a former official with the Gay and Lesbian Alliance Against Defamation.

The Journal's front page gave the New York Post, itself no stranger to intruding on the private lives of public figures, the excuse to rerun the photo across a double-page spread with the headline: "Does this photo suggest high court nominee Elena Kagan is a lesbian?"

Michael Wolff, a blogger with the Newswer website, wrote: "To say the obvious: it's the hair. She sure looks gay."

The Journal has responded to suggestions that it was playing a nudge-nudge-wink-wink game with derision.

"If you turn the photo upside down, reverse the pixilation and simultaneously listen to Abbey Road backwards, while reading Roland Barthes, you will indeed find a very subtle hidden message," was the sardonic comment of the paper's spokeswoman.

But Sarah Ellison, author of the new book War at the Wall Street Journal and a former reporter on the paper, said: "This is not a paper that is above visual gags. Journal editors should not be surprised or outraged that people question the photo."

The swirl of conjecture around Kagan's sexuality has been gathering pace for several weeks, and has come partly from the right, which has an obvious interest in implying, however surreptitiously, that Kagan has a personal agenda in her approach to the law ahead of what could be a testing confirmation process.

Ben Domenech, a former Bush aide, was one of the first to float the idea on a CBS News blog, although he later apologized for running a rumor.

The rightwing Fox News commentator Bill O'Reilly also went on air saying: "Americans have a right to know if their supreme court justice has an orientation that may or may not dictate which way she votes on a vital issue."

Sadly complicating matters, similar points have been raised by commentators on the gay and lesbian side of the argument. Gay activists expressed dismay at the fact that the White House responded to Domenech with a flat denial that Kagan was gay, which they said implied that there was something to be ashamed about if she were.

Earlier Sullivan wrote that "this is preposterous – a function of liberal cowardice and conservative discomfort.

"Since it would be bizarre to argue that a justice's sexual orientation will not in some way affect his or her judgment [on gay rights], it is only logical that this question should be clarified."

So, let me understand. By all accounts a straight woman, very distinguished in her career and currently the Solicitor General, has been accused by innuendo and gossip of being a lesbian because she played softball 17 years ago! And, the gay community has attacked spokesmen for telling the truth: She is NOT gay. They claim that being gay is something she should be proud of and not ashamed. But...she is NOT gay!

What a shining moment in the history of yellow journalism.

According to conservatives and again some gay rights activists, the supposed sexuality of Ms. Kagan is “pertinent” to explore because gay marriage and associated issues may be addressed in the future by the Supreme Court. This of course, means that no heterosexual justice already sitting on the court has an orientation that would dictate the way they vote!

Ridiculous? Yes. Insulting to heterosexuals and homosexuals? Yes. Have they besmirched the stellar reputation of a talented woman? Yes. Have we learned anything of value from this whole mess other than lesbians are still geneally loathed and feared in our culture? Not one damn thing.

— The Curator