Elena Kagan and the Equations of Discrimination

By Hayne Barnwell

The rumor mill quickly started churning when President Obama announced his nomination of Elena Kagan for the United States Supreme Court.  A simple, inevitable equation emerged: childless + single + hard-working and ambitious = GAY.  Obama should have called the media’s bluff and asked “So what?”.  Instead, the White House treated the result of this equation as an accusation.  Their response was ironic at a time when Obama and Americans are patting themselves on the back for sending another woman to the Supreme Court.  It only took 220 years to find four women capable of serving on our nation’s highest court!  But even when we proudly send these women there, the media follows their ascent with whispers and rumors seemingly aimed at dragging them back down.  Words like “childless” and “gay” may pack no punch in and of themselves – but underneath these terms are clear discriminatory judgments of the particular woman’s worth in society.

During her own nomination process, Sonia Sotomayor had to endure only a few whispers about her sexual orientation.  These rumors followed the same equation: another childless, single woman known for her career achievements and ambitions.  Unlike Kagan, however, Sotomayor once was married to a man for a brief time and thus was largely spared the “smear” of homosexuality.  Of course, Kagan’s defenders will find plenty of examples of this brand of vitriol in the attacks directed at Justice Sotomayor.  In a speech given at the University of California, Berkely, in 2001, Sotomayor had the temerity to suggest that as a “wise, Latina woman,” she might have a more nuanced understanding of the plight of oppressed people than a white man would.  Instead of highlighting Justice Sotomayor’s meteoric rise from the projects in Brooklyn to a seat on the Supreme Court, public dialogue devolved into a whining refrain:  “Why do Latina women always get the attention?  Why do they think they are better than white men?”

If you are a female living in America today, the coverage of these women’s momentous achievements should confirm that marriage and motherhood are your only acceptable life goals.  By society’s standards, women who do not shape their lives around men and children are uncaring and dangerous.  If you dare call yourself a feminist, you may as well give up on a meaningful life and lock yourself in your solitary home.  Which probably has a basement full of dead cats.

If you are gay, then this process will confirm what you already know – that being gay is still something to hide in America.  Obama may have promised to rescind the “Don’t Ask, Don’t Tell” policy, but he apparently still views homosexuality as a disability.

If you are both, then God help you.

The nomination process behind our new Supreme Court Justices also confirms that sexism remains the best partner of homophobia.  The butchered logic behind both types of discrimination develops into an equation sold as a plausible truth by newspapers and politicians: you are gay because you are not feminine enough to be a real woman (or masculine enough to be a real man).  You are a childless, single woman doing a pitiful job at hiding your homosexuality.

In a 2001 interview with Oprah Magazine, Justice Ruth Bader Ginsburg told the following story to her interviewer: “The National Association of Women Judges, with great foresight it turns out, had a little celebration at the Court when I took my seat. They presented T-shirts to Sandra and to me.  Hers read I’m Sandra, not Ruth and mine was I’m Ruth, not Sandra.  I went through the entire last term, which was my seventh year on the Court, with no one calling me Justice O’Connor.  It took six years!  But to me that was a sign we’ve really made it, that they know there are two women.”  She is right, of course.  The American public has come a long way in its treatment of women and, for the most part, no longer views us as interchangeable non-entities.  Perhaps someday when we consider another woman to serve on the highest court in the nation, we will not see her as fodder for a rumor mill mucked up with discrimination.  Optimism predicts that we will focus on the qualifications that actually matter: her jurisprudence, her ability to interpret the law, and her empathy toward all who seek redress for injustice – whether gay or straight, Latina or white, woman or man.

The NLG recently issued a position paper on appropriate qualifications for a U. S. Supreme Court Justice nominee.  Read the statement, authored by Prof. Zachary Wolfe, at www.nlg.org/news/announcements/nlg-issues-position-paper-exploring-qualifications-for-judicial-nominee/

Hayne Barnwell is a member of the NLG Mass Defense Committee and a criminal defense attorney in Salem.