The Wall Street Journal ran this youthful photograph of Supreme Court Nominee Elena Kagan playing softball to question whether or not she is a lesbian.

Is She or Isn’t She?

I am thrilled as we approach the Senate battle over the confirmation of Elena Kagan. I feel the same way I would feel if my sports team were heavily favored on the verge of the championship game. Not just favored, but favored to beat a hated rival. After suffering through Roberts and Alito, I am very, very pleased to be on the winning end of another one of these classic conflicts, and I look forward with relish to the anguish from conservatives as the 50-year-old Kagan takes her seat on the bench.

First things first. Kagan smokes cigars, drinks and the Wall Street Journal ran an old photo of Elena playing softball, but it seems clear that the unmarried brainiac is not gay. Politico ran a piece which cited Kagan’s law school roommate, who recalled nights of chatting about eligible men and said she was posted as a lookout for single guys for Kagan. Even Eliot Spitzer told the press that although he never dated Kagan, he knew other men that did. 

I know, I know. She looks gay, and a lot of us 50-something lesbians dated men in college. But you know what? It doesn’t matter. Although she is brilliant, successful and reportedly funny and nice, she clearly does not have much of a social life for whatever reason. Nor can I uncover any scuttlebutt from friends of friends of friends. Naturally I have tried.

What matters more is that Kagan is on record in support of gay civil rights, and she has a powerful judicial intellect. One theme that has emerged since her nomination was announced on Monday is the notion that Kagan was picked to be the “fifth justice,” not the fourth, meaning that she was selected for her ability to put together a majority on the center left rather than stand on principle in dissent. Presumably, her strong record as a consensus builder at Harvard Law fed into this theme.

In response, pundits have pointed out that the conservatives on the Court are not going to be “convinced” to change their minds on core constitutional issues, regardless of Kagan’s powers of persuasion. But this notion simplifies the role of the Supreme Court. The relatively few cases that reach the justices can be decided on broad or narrow grounds. They can be decided on one or more of several constitutional issues. They can break new ground, reinforce settled law, or carve a nuanced distinction into existing case law. It’s not a question of Kagan convincing Justice Thomas to take a liberal stand. It’s a question of Kagan convincing four justices to follow her down one path or another.

Further, it takes four justices to agree to hear a case to begin with, an area of influence that flies under the radar, but is surely significant. When the Supreme Court denies an appeal, it leaves the underlying appellate ruling intact and in force, the next best thing to ruling in favor of the appellate winner. Convincing Thomas or Alito to duck a cert petition is also not the same as talking them into abandoning their legal philosophies, and it’s an important skill. Ditto, convincing one’s allies to vote in favor of review when appropriate.

As for the confirmation battle itself, there’s really not much for conservatives to sink their teeth into. Kagan’s lack of judicial experience is more than mitigated by her vast legal resume, not to mention all the other famous Supreme Court justices that never wore robes before ascending to the High Court. 

Her scholarship is highly regarded and non-partisan. When last I checked there was no big left/right divide over, say, the extent to which government motive should dominate the analysis in First Amendment cases. 

She was recently vetted for her job as Solicitor General, so presumably she has no skeletons in the closet. 

Her credentials on the left are somewhat under attack for something she said to Lindsey Graham during her earlier confirmation hearings about whether or not a terrorist captured in some neutral part of the world is part of the war on terror. (She said yes.) And she also failed to hire the appropriate numbers of minorities and women to teach at Harvard Law, although the same accusation can be leveled at the deans of all the other top law schools. Nonetheless, these complaints seem unlikely to gain traction. 

It’s expected that some on the right will try and paint Kagan as anti-military due to her opposition to military recruitment on campus at Harvard Law. However, Kagan was joined by virtually every other law school, so her stance was not exactly at the forefront of activism. Moreover, Kagan allowed the recruiters on campus. They were simply not allowed to use Harvard facilities due to their discriminatory hiring practices. 

If that’s all they’ve got, Kagan is in for a smooth sail. Of course, with hundreds of researchers digging through every nook and cranny, we might discover some one-liner she made during a panel discussion in 1997 before a group of 30 grad students in Oklahoma City. Like the “wise Latina” comment, these sorts of things take on a life of their own. Or who knows? Maybe Kagan regaled her young colleagues with descriptions of porn films back in the day. We’ll just have to wait and see.

DOMA Cases Finishing Phase One
Last week, last Thursday to be exact, a federal judge in Massachusetts heard oral arguments in the challenge to the Defense of Marriage Act brought by Gay and Lesbian Advocates and Defenders. 

According to reporter Lisa Keen, Judge Joseph Tauro seemed relatively uninterested in the key question of what level of judicial scrutiny he should apply to the case. That’s not good. 

On the other hand, Judge Tauro, a 79-year-old Nixon appointee, seemed skeptical of Congress’s motive for enacting a federal definition of marriage that excludes gays. When Justice Department attorney W. Scott Simpson explained that the government was only acting to “preserve the status quo,” GLAD’s Mary Bonauto pointed out that the status quo was “upended” by the passage of DOMA, which allowed the federal government to ignore state definitions of marriage for the first time in history. Judge Tauro seemed inclined to agree with Bonauto according to Keen’s piece.

Getting back to the level of scrutiny. Let’s put it this way. When the level of scrutiny is high, we win, period. When the level of scrutiny is low, we sometimes win, but can also lose. When this threshold question is answered in our favor, that’s game, set and match.

Higher scrutiny from the court is justified when a fundamental right is at stake, or when a law targets a suspect class of people, minorities who have faced a history of discrimination for reasons that have no connection with their ability to contribute to society. Less important factors in determining a suspect class include lack of political power and an innate characteristic.

Marriage is a fundamental right and gays and lesbians should be considered a suspect class, so from our perspective, heightened scrutiny is doubly justified in a marriage case. It’s so obvious that men like David Boies and Ted Olson believe that our case for marriage is a slam-dunk.

But time after time, nitpicking courts that don’t want to be boxed into delivering a gay rights victory manage to deconstruct the arguments in our favor and apply the lowest standard of judicial review to our cases. Some courts manage to have their cake and eat it too, by ruling in our favor using the lowest standard. This allows them to follow their consciences, while not setting the precedent of using heightened scrutiny. Romer v Evans, Lawrence v Texas, and the Massachusetts marriage case are three notable examples. 

In other words, no gay rights case is a slam dunk and anyone who thinks so underestimates the reluctance of federal courts to open the flood gates to gay litigants by opining that gays are a suspect class and/or that marriage is a fundamental right for gay and straight couples alike. Looks like Judge Tauro is lining up to avoid the tough question of scrutiny, doesn’t it?

Meanwhile, a related DOMA challenge, filed by the state of Massachusetts, is scheduled for oral arguments before Judge Tauro on May 26. Despite my pessimistic comments above regarding gay civil rights litigation, both these challenges are rock solid, narrowly framed, and I would think, favored to win under any level of scrutiny.

Last And Probably Least
In other exciting news of the week, I read that the Kill the Gays bill in Uganda might not pass. That’s interesting. Back in the day when the subject first hit the press, it was expected to pass easily.

Also, as predicted, the Argentine lower house passed marriage equality, although the senate is reportedly more conservative.

That just about exhausts my off the cuff memory of recent events, except for a poll in Maryland that says a majority favors gay marriage rights. That’s nice. So now, I can either go back and dig up more fascinating tidbits, or I can just relax and meander along my stream of consciousness skipping stones across its gently flowing waters.
 
I think I’ll have a Heineken.
Speaking of Heineken, don’t you hate the commercial about the “most interesting man in the world”? Actually, I think that’s Dos Equis, but the ad is annoying regardless. The man doesn’t sound interesting, he sounds like an arrogant fool, and I will have nothing to do with his beer. That’s why I’m drinking Heineken. 

Oh. I know what we can talk about for the rest of our time together. Dr. George Rekers and the rent boy! 

You remember from last week that crazoid antigay Baptist minister George Rekers was caught hiring a gay male escort to “carry his luggage” during a trip to Europe. When confronted, Rekers added that he selected a young stud from rentboys.com in order to counsel him about scripture and coming out of homosexuality. Uh huh.

Our rentboy has since emerged from the shadows and spoken to the reporters at the Miami New Times that broke the story, as well as to Joemygod.com and others.

His name is Jo-Vanni Roman, and according to him, there was no counseling during the vacation, where the twosome stayed in cheap hotels and spent much of their time in churches and museums. Every afternoon, Dr. Rekers enjoyed a nude sexual massage compliments of Roman, although no sex apparently took place. However, Jo-Vanni confirmed that his companion was “rock hard” after the languorous rubdowns, which focused on the nether regions. 

Rekers, in turn, has been forced to resign from the board of the National Association for Research and Therapy for Homosexuality (or whatever NARTH stands for). He insists he is not gay, and is threatening to sue someone for defamation. 

I find it interesting that the man tiptoed around sex, as if perhaps he could convince himself that he wasn’t gay as long as he limited his activities to sensual encounters. Somehow, that’s even more sad and twisted than having a full-blown affair with his escort. 

I don’t know about you, but I’m looking forward to the defamation suit! Let’s get it on court TV. 

-arostow@aol.com