Can Justice be Gay?

Justice is blind. Can she also be gay?

I posted previously about the kerfuffle over rumors of gay candidates for SCOTUS, in What if a Supreme Court Justice be Gay? I also commented acidly on the expectation that only straight white Christian men can be objective. Somehow, it is assumed that a minority, a woman, or a gay person can't see the world apart from their membership in those groups. (Our friend Mike in TX has some examples of how being straight, male Christians can lead to its own judicial perversions.)

Now the American Family Association has updated its comments (H/T RightwingWatch; I will not link to hate sites):

Speculation continues to swirl about the sexual preference of likely Supreme Court nominee Elena Kagan. She is apparently out to her friends and others in her academic and social circles, but not out to the public at large.

The White House has flatly stated that she is not gay, which could prove a tad embarrassing if the open secret of her lesbianism is confirmed at some point. ...It's time we got over the myth that what a public servant does in his private life is of no consequence. ....The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?

I don't care if Kagan is gay or not. (If she were, I wish she were out, but that's another issue). I DO care that rightwingnuts are somehow pretending that orientation is a litmus test. It would be offensive for there to be a test for faith, or race, and it's just as offensive to invoke a test for sexuality. Being GLBT is not illegal.

Sadly, neither is being stupid.

UpdateAndrew Sullivan writes:

And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.

In a word, this is preposterous - a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority - and the right of the huge majority to determine its rights and equality - is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified.....

To put it another way: Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth? In a free society in the 21st Century, it is not illegitimate to ask. And it is cowardly not to tell.

And From Slate:

Whether or not the strategy works politically, the White House's announcement that Kagan isn't gay should end the matter, unless and until someone come up with some real proof to the contrary. The unfounded insistence that Kagan is a lesbian isn't about lies or hypocrisy (shades of, oh, Larry Craig and John Edwards) or even journalistic ethics. It's about making things up. There's simply no evidence that Kagan's pretending to be anything she's not. The underlying lesson may be that the confirmation wars are so completely toxic that we have come to assume every nominee reflexively lies about everything, up to and including his or her sexuality.