A gay justice would broaden Supreme Court’s perspective

President Barack Obama has a choice to make in the coming weeks about whom to appoint to replace Associate Justice John Paul Stevens in the United States Supreme Court. Perhaps you have heard the muted rumors around potential nominee Solicitor General of the United States Elena Kagan: Her Harvard schoolmates are pulling out the l-word, and the White House's recess monitors are telling them to stop spreading naughty lies.

First of all, I don't actually support Kagan; she's far too conservative to replace Stevens. And though there is some new energy in the Democratic Party because of the health care victory, it's important that Obama remembers his most dedicated constituency support him as a liberal, progressive leader, not an appeaser of the conservatives with the aim of getting elected again and possibly accomplishing more in his second term. I understand the argument that Obama and his moderate Democrats don't want a hostile Congress, especially with elections coming up in the fall. But here's a solution: Let's revive the Democratic electorate with a progressive choice to replace Stevens.

Appointing a liberal associate justice who is openly gay or lesbian could be the best political decision. An openly gay man or woman with liberal ideals would bring the government's support to one of the most important civil rights movements of our time.

Appointing a gay man or lesbian to one of the highest offices in the country legitimizes the movement and recognizes its importance. Justice Thurgood Marshall could not represent African Americans, Justice Sandra Day O'Connor could not represent women, but their occupation of the office included one lived minority experience; and it was an acknowledgment of their struggles, resistance and voice. Appointing a gay person to office is a step in the direction to political and social equality because his or her personal experience will be, undeniably, embedded in political ideals. Telling the true stories of being gay in our society may open the eyes of the other justices so that they can interpret the Constitution in a fair and compassionate manner. In The Nation, Linda Hirshman relates the story of Associate Justice Lewis Powell, "who cast the deciding vote in Bowers v. Hardwick, the case that kept sodomy a crime and which the Court reversed 17 years later in Lawrence v. Texas. Powell later said he regretted his vote in Bowers; he just never knew any gay people, he said in his defense." So let's give them a qualified gay person to know.

I know that some of the backlash to this idea is not just from Focus on the Family or the American Family Association, conservative organizations that demand employment discrimination based on sexuality; some just don't support choosing a justice based on sexuality at all. I struggle with this as well. However, there is something to be said for the importance of government legitimization of the gay rights movement. Being gay doesn't make a candidate qualified to serve, but it can be a consideration in a pool of qualified candidates. The political and social climate of this nation is still hostile to homosexuals—this is a step towards changing that.

Then we can stop talking about if we can talk about sexuality; we can just talk about it instead. Why is the government "defending" Kagan from being called a lesbian? I have no idea if she is a lesbian or not, but the fact that the blogosphere has stayed tenaciously away from the topic speaks to how dirty we see this issue. I've put my stance out there: I want a liberal, openly gay justice. She is neither liberal, nor openly gay—or gay at all, for all we know—so she is not the right choice. But having a gay justice would mean we would have to talk about sexuality, just like we talk about former President Bill Clinton and Monica Lewinsky, Brad and Angelina, and the multiple sexual scandals going on in Congress at any given time.

The White House is encouraging discrimination by asking CBS to remove their article that rumored her sexuality. Kagan herself can assert her sexuality; the government need not "protect" her from being outed, as there is nothing wrong with being an alleged homosexual. Appointing an out homosexual will combat this untouchability of homosexuality because Obama will be saying to America and to Congress that this person is gay and qualified.

-Meghan Feldmeier '13