A fact-free diet may be healthy for post-Kagan sexual tolerance

It’s sometimes remarkable how little facts matter to larger currents of opinion. Consider the 1992 interview in which then-candidate Bill Clinton said he had tried marijuana a couple of times but “didn’t inhale.” Now, nobody over the age of nine took his denial seriously. It seemed ridiculous, but reporters didn’t poke too hard into his collegiate pastimes, voters didn’t have to overlook hard evidence of illegality and they elected him.

And ever since, prior marijuana use—which only five years earlier had been enough to cost Douglas Ginsburg, a well-regarded judge, a Supreme Court seat—has been finished as a disqualifier for high office. Candidates don’t even have to fudge nowadays; they’re not asked.

I wonder whether the nomination of Solicitor General Elena Kagan to the Supreme Court will have the same effect on the idea that homosexuality has bearing on a candidate’s fitness for a position of public trust. Maybe, from now on nobody will care. And that may actually owe something to the absence of facts in today’s don’t-ask-don’t-tell discussion.

For the past month, since a blogger raised the matter on a CBS website, commentators on the political right have been jabbering about how the ex-Harvard law dean might be a lesbian. The speculation crested when The Wall Street Journal, now controlled by the high priest of fairness & balance, Rupert Murdoch, ran a front-page photo of Kagan, taken 17 years ago, gripping a bat and playing ball.

That, apparently, was code. As Fox News luminary Sean Hannity helpfully explained, “a softball bat symbolizes a certain lifestyle.” On MSNBC conservative stalwart Pat Buchanan observed that “women’s softball has been associated with lesbians and being gay for a long time…. I think the Wall Street Journal was sending a message.” (The newspaper denies that.)

Now, outing gays has a sordid pedigree in the political world, and the prospect of being exposed as homosexual was traditionally a calamity. In the 1959 Washington best-seller (and Pulitzer Prize-winner) Advise and Consent, a key senator, confronted with a decades-old photo of himself with a special pal, commits suicide rather than endure scandal.  Being gay was an invitation to extortion. Homophobia was presumed.

In recent years, as gays mobilized politically, exposure took a sharp turn. Now it was called outing. No longer was it a tool of shakedown artists and homophobes. Instead, it became a righteous weapon of gays themselves. Their targets were right-wingers who publicly deplored homosexuality and opposed policies dear to gays—civil unions, shared partner benefits, anti-discrimination protections—but who were, in their private lives, closeted gays.

The beef was with hypocrisy, that these officials publicly acted one way and privately lived another.

Were they entitled to shield their most intimate sexual activities from public exposure? The implication was they were not. Thus did Idaho’s principal newspaper, The Statesman, conduct 300 interviews over five months in 2007 to determine if Sen.  Larry Craig, an anti-gay rights lawmaker arrested for supposedly soliciting sex in a bathroom, had ever had sex with men.

But suppose there is no hypocrisy. What if the closeted officeholder takes pro-gay positions publicly? Wouldn’t opponents still argue for investigating her personal life, now in order to expose the hidden agenda she was furtively trying to advance?

Either way, you’ve got a rationale for a journalism that has no regard for personal privacy, as some commentators seem to be demanding with Kagan. The normally lucid Andrew Sullivan, while firmly opposed to “coercive exposure,” a felicitous phrase,  offered this puzzling formulation to a Poynter institute columnist: “I think they [news media] mistake invading someone’s privacy with noting their public identity,” as if one’s most intimate doings constituted a public persona.

The columnist, Mallary Jean Tenore, suggested the media have failed to respond to intense public interest, as reflected in the volume of Kagan-related chatter and speculation on the Internet. Fine. Except that if journalists heeded the so-called Fifth Estate, our news would be even more sodden than it is with sex of all kinds, celebrity bustups and fascinating foolishness. The Fourth Estate would indeed be hip and responsive, also thoroughly dysfunctional.

To me, the media have done about as much as they should with this nonsense. Ironically, without ever being confirmed, lesbianism may now have been laid to rest as an issue.

The photo of Kagan at the plate, even if published to harm her, was an image of female homosexuality that to straights was familiar, playful and nonthreatening. That’s it? That’s the big deal—a smiling, chunky girl in blue jeans waiting for her pitch? Seems like it’s safe to inhale now.

-30-