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

By Karen Tumulty
Washington Post Staff Writer
Friday, May 14, 2010; C01

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.

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.

As dean of Harvard Law School, she briefly barred the military from its recruitment office. Kagan argued that the "don't ask, don't tell" policy violated Harvard's anti-discrimination rules.

Some of her more strident conservative critics now see that decision through the prism of innuendo. "It doesn't seem like Ms. Kagan is live and let live on these issues," said Austin Hill, who hosts an early morning radio show on WMAL (630 AM). "It seems as though, for her, sexual identity, sexual orientation trumps everything. And we damn well have a right to know about that!"

Meanwhile, some gay rights advocates -- and many others -- are anxious to banish the idea that homosexuality might still be, in itself, a stigma and a disqualifier. "Objective interest in Kagan's sexual orientation has very little, or even nothing, to do with what she does behind closed doors. . . . Without being able to discuss Kagan's sexual orientation, we cannot know macro issues (like whether she's experienced a certain type of discrimination and thus knows first-hand the importance of eradicating it) or micro issues (like whether her partner is an oil company executive, or someone who could stand to benefit from an upcoming ruling)," wrote a blogger on Queerty.com, a gay-themed gossip and news site.

As the rumors have persisted, a number of Kagan's friends have come forward, presumably with White House acquiescence, to attest that she is a heterosexual. One of those sexuality character witnesses was former New York governor Eliot Spitzer, who had to resign when he was caught patronizing prostitutes. "I did not go out with her, but other guys did," Spitzer wrote in an e-mail to the news organization Politico, recalling his days with Kagan at Princeton.

If confirmed, Kagan would be only the seventh never-married justice of the 112 who have sat on the Supreme Court. Yet she is far from the first middle-aged, unmarried, childless woman of accomplishment to grapple with gay rumors.

After Janet Reno was nominated to be the first female attorney general in 1993, the gay rights group Queer Nation called a news conference to declare that the 54-year-old Dade County prosecutor was "more likely than not" a homosexual. That put Reno in the position of having to assert: "I am not a lesbian."

Nor are women the only ones to face such a situation, as pretty much any male public figure who reaches midlife without a wife, children or a louche, Charlie-Wilson-like reputation.

Shortly after his confirmation to the Supreme Court in 1990, the 51-year-old bachelor David Souter reflected on the invasive process in an interview with the Boston Globe. "When someone who has lived as privately as I have is suddenly subjected to the kind of scrutiny that's getting quotations from old girlfriends and so on of 20 years ago," he lamented, "you really do wonder how relevant that is to the issues of the day."

Staff researcher Alice Crites and staff writer Garance Franke-Ruta contributed to this report.

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