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Is sexual identity our business, or are we a nation of busybodies?

In 63 to 37 vote, the Senate confirmed U.S. Solicitor General Elena Kagan as the 112th justice to the Supreme Court, making her the fourth woman ever to sit on the high court.

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By Karen Tumulty
Washington Post Staff Writer
Friday, May 14, 2010

As long as there has been gossip about people in public life, there has been a debate about the relevance of a very private matter: sexual orientation. But in an era when the Internet can amplify a whisper to a roar, an arched eyebrow to a slander, the politics that drive such speculation can matter more than the facts themselves.

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So it was that the process of filling the latest Supreme Court vacancy produced a first: The White House declared publicly, even before President Obama nominated Elena Kagan, that she is not a lesbian.

"False charges," White House spokesman Ben LaBolt said after a conservative blogger wrote last month on a CBS News Web site that Kagan would be the "first openly gay justice." LaBolt's description of the rumor as "charges" was itself awkward, coming from a pro-gay-rights Democratic administration. His statement almost begged for a Seinfeld-esque not-that-there's-anything-wrong-with-that qualifier.

Why the White House chose to engage on this question at all is telling of the currency and the potency of the innuendo. In an age when the Internet sometimes ignites the burners of the mainstream media, "a rumor unaddressed becomes fact," said Anita Dunn, a former White House communications director who has reenlisted to advise on the Kagan nomination.

Administration officials asked Kagan directly about her sexual orientation when she was being vetted for her post as solicitor general, Dunn said in response to a question that she protested was inappropriate. But she insisted that it was not a relevant factor in determining who was named to that job or this one. "When there's a gay nominee, there's a gay nominee, which will be a good thing, if they're qualified and should be on the court," Dunn said.

The effort, preemptive though it was, didn't squelch the conversation. In a truly odd convergence of forces that rarely make common cause, some on the right and in the gay community -- for their own reasons -- have continued to push the rumor, and even demand that the nomineecome forward with details of what goes on, or doesn't, in her bedroom. "In a free society in the 21st Century, it is not illegitimate to ask," wrote Daily Dish blogger Andrew Sullivan, who is gay and whose political ideology follows no orthodoxy. "And it is cowardly not to tell."

Outside the military, gays serve openly in just about every arena of public life, and not just on the country's progressive, urbane coasts. In December, for instance, Houston elected as its mayor Annise Parker, who has for two decades been in a committed relationship with another woman with whom she is raising three children.

Yet the buzz about Kagan shows how politically loaded the question of sexual orientation remains in 2010, even as it has been deemed largely out of bounds to suggest that someone's gender, race or religion has any bearing on his qualification for office.

"It's less of an issue than it used to be, but this is a new frontier, the Supreme Court," says former congressman Jim Kolbe (R-Ariz.), who came out of the closet in 1996 after he voted for legislation defining marriage as a legal union between a man and a woman and gay rights groups threatened to force him out.

The "outing" wars aside, Obama suggested that a candidate's life experience has a bearing on what kind of justice he or she might be. Last year, he offered that one of his main criteria was "empathy" -- a much-criticized standard that he has since refined to "a keen understanding of how the law affects the daily lives of the American people." And the White House narrative around his first Supreme Court nomination, Sonia Sotomayor, focused more on her hardscrabble personal story as a Latina from the Bronx than her judicial philosophy.

One reason the rumors won't die, in Kagan's case as in others before it, is that they further the agendas of those who cling to them.

For conservatives who are looking for ammunition against a nominee who has left a scant paper trail, the discussion of her sexual orientation adds kindling to the most controversial episode in Kagan's career.


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