Q: What do Tiger Woods and Elena Kagan have in common?

Posted on May 11th, 2010 by Katherine Franke

A: What we think we know about their sexualities deviates from a narrowly defined and ruthlessly enforced notion of  “healthy adult sexuality.”  He liked/wanted/got too much, she (is assumed to) like/want/get not enough.  

The hub bub surrounding General Kagan’s (I love that title) nomination to the Supreme Court has unfortunately over-focused on her sexuality or lack thereof.  The bad guys have launched a whisper campaign insinuating that she’s a lesbian (not married, short hair, comfortable shoes, and she played softball, nuf said?), while the White House insists she’s straight.

It seems almost obscene to be talking about soon-to-be Justice Kagan and her personal life in these terms, but to be honest, this issue is no longer (if it ever was) really about her since we don’t know anything about her intimate life, nor should we.

Rather than contribute any more than I already have to this craziness about Kagan’s sexual orientation I’d rather shift the focus to what I believe to be the underlying issue here: the narrow band width allowed any public figure when it comes to what is typically regarded as a sexuality that doesn’t deserve comment.

Put another way (with fewer double-negatives), part of the fascination with Kagan’s sexuality lies in the fact that “it,” or what we think we know about “it,” falls outside of what we ordinarily regard as the kind of sex life “normal” people have: the right kind, enough of it, but not too much.  Tiger, as I said above, had too much of it (and maybe some of the wrong kind).  Kagan, on the other hand, seems not to like it enough, in so far as one version of the story is that she sacrificed a personal and intimate life for her career.  This is seen as a bad thing.  (In an odd, if not perverse, way, in some precincts she might have been less suspect had she professed a “normal” lesbian sex life.  But she’d still have some explaining to do.)

Sonia Sotomayor, also unmarried at the time she was nominated to the high court, avoided this craziness because she’d been married and was divorced (and the whole “wise Latina-thing distracted attention well enough).  But other recent nominees Roberts (married with children) and Alito (married with children) have not been grilled about their sex lives because we had no reason to think their sexuality deviated from what we expect of a “normal” adult: monogamous, hopefully resulting in reproduction, and not kinky.  To say that it should remain private would be a mistake.  Respectable public figures, especially ones like Supreme Court nominees, should appear before the cameras with wife and children by their side.  This doesn’t officially count as putting their sexuality on display, but of course it is.  We know this because the absence of a spouse and children triggers a kind of sexual suspicion, as the Kagan case shows.  (And then there’s the awkward problem of who will hold the bible at the swearing in!)

Only two other Supreme Court justices, in recent times, have had their sexuality put into play: David Souter and Clarence Thomas.

Souter, a never-married 51-year old man at the time of his nomination, suffered no small measure of queer-baiting as I’ve previously discussed.  (The bible was held at his swearing in by Erin Rath, a teen-age daughter of Thomas Rath, a longtime friend from New Hampshire.)

And Clarence Thomas was able to cut off inquiry into the kind of sex he liked (at the office, porn, with white women) only by calling it racist and by shifting the attention to Anita Hill’s sexuality.

But of course race is not irrelevant when we consider when and how a person’s sexuality is seen as deviating from the narrow spectrum of normal.  Whether it be Emmet Till or Barak Obama, black men have to be extremely careful not to inadvertently reinforce a notion of hyper-sexuality and threat to white women.  (Tiger seems to have accomplished both, and in so doing became blacker in the aftermath of the sex scandal.)

The unfortunate sex-based aspect of the dust up-kick that surrounds the nomination of General Kagan renders legible the boundaries of “normal sexuality” that ordinarily go unnoticed where the nominee can plausibly and safely situate him or herself on their inside.  We have come to expect advance vetting and later muckraking when it comes to boundary violations of the “wrong kind” sort, but this case introduces something new: a presumption that adults should be having/wanting some sort of sex. Yet why should there be both a floor and a ceiling on what is considered normal when it comes to sex?  As my friend Mary Anne Case, a law professor at the University of Chicago, said to me in an e-mail this morning: “my own interest in all of this remains in making space and providing protections for asexuals, the autoerotically inclined, the Kinsey Xs, and all whose orientation vis a vis the homo/hetero/bi spectrum is ‘none of the above.'”

Like Case, this question interests me much more than determining whether Elena Kagan’s is or isn’t a lesbian.


  1. Brilliant in every aspect.

  2. Heya i’m for the first time here. I found this board
    and I find It really useful & it helped me out much.
    I hope to give something back and aid others like you aided

    Look at my site: Jaylynn McKenna

Add a comment

Comments are subject to moderation and do not necessarily reflect the opinions of
Columbia Law School or Columbia University.



"Homeland" Security Abortion Rights Activism Adoption adultery Advocacy Affordable Care Act Alien Tort Claims Act Amicus Brief Asylum Bankruptcy BDS Bullying Census Politics Children Citizenship Civil Unions Clinic Columbia Law School Compulsory Marriage Condoms Contraception Contraception Mandate Cordoba House Criminal Law Cures for Homosexuality Defense of Marriage Act Disability Rights Discrimination Divorce Domestic Partnership Domestic Violence Domestic Workers Don't Ask Don't Tell Earth Day Economic Justice Education Egypt Elections Employment Discrimination ENDA Estate Planning Events Family Law Fellowships femininity Feminism Free Speech Gender and Technology Gender Identity Discrimination Gendering the Economy Gender Justice GSL Online Haiti Hate Crimes Health Care Hilary Clinton Hillary Clinton Hiring HIV HIV Discrimination Hobby Lobby Homelessness Homophobia Housing Human Rights Identity Politics Illegitimacy (sic) Immigration Reform In-ing Incest India International Law Intersectional Feminism Islamophobia Israel Jobs Justice Sotomayor King & Spalding Labor Trafficking Land Reform Law School Legal Profession Legal Scholarship Lesbian & Gay Parenting LGBT Parenting Marital Status Discrimination Marriage Marriage Equality Masculinity Medicaid Michelle Obama Migration Military National Security Obama Administration Obama Appointments Obergefell Outing OWS Palestine Parenting Pinkwashing Policing Politics of the Veil Polyamory Popular Culture Pornograpy Pregnancy Presidential Politics Prisons Privacy Products Liability Profanity Prop 8 Prosecutorial Discretion Publications Public Rights/Private Conscience Public Rights/Private Conscience Project Queer Theory Queer vs. Gay Rights Race and Racism Racial Stereotyping Rape Religion Religious Accommodation Religious Exemption Religious Exemptions Religious Freedom Restoration Act Religious Fundamentalism Reproductive Rights Reproductive Technology RFRA Romania Rwanda Sartorial Commentary Schools Sex Discrimination Sex Education Sex Stereotyping Sexting Sex Trafficking Sexual Assault Sexual Duplicity Sexual Harassment Sexual Health Sexuality and Gender Law Clinic Sexual Orientation Discrimination Sex Work Silencing of voices SMUG Sodomy Law Reform Solidarity Sports Supreme Court Surrogacy Technology Title IX Trafficking Transgender Uganda Uncategorized Violence Women and Poverty Women of Color Work Zimbabwe

Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.