She’s not gay, OK?

Actually, the all-too-public discussion about the ought-to-be private topic of Elena Kagan’s sexuality would be easier if the Supreme Court nominee were gay.

From my (straight, married mother) point of view, a gay justice would be a benefit to the country and the court. To the country because it would speed up the inevitable: acceptance of gay Americans in all walks of life. To the court because — as with any additional perspective — an openly gay justice would add to the richness of the court’s understanding of cases, particularly gay rights cases, that come before it.

But Kagan isn’t gay, for all the baseless chatter to the contrary. When this chatter seeped into the mainstream media a few weeks ago, I was reluctant to join in on a topic that seemed unnecessarily intrusive — boiling down, as it does, to the question: So if she’s not gay, then why isn’t she married? Now that she’s the nominee, however, it seems that the subject isn’t going away anytime soon.

The charming picture of Kagan at the bat that The Wall Street Journal ran on its front page the other day has been assailed by some gay rights activists as Rupert Murdoch’s coded warning about Kagan’s sexuality. I thought the picture, from a University of Chicago faculty game, made her look like more of a real person and less of a brainiac. Memo to conspiracy theorists: Straight women, too, can play softball. Sometimes a softball bat is only a softball bat.

Kagan’s law school roommate (and my good friend) Sarah Walzer, went on the record in an interview with Politico: “I’ve known her for most of her adult life and I know she’s straight,” Walzer said. “She dated men when we were in law school, we talked about men — who in our class was cute, who she would like to date, all of those things. She definitely dated when she was in D.C. after law school, when she was in Chicago — and she just didn’t find the right person.”

There are gender-based undertones to the Kagan discussion, but it is more complicated than simple sexism: that we assume an unmarried woman in her 40s or 50s “must be” a lesbian. Truth is, there is much the same gossip about unmarried and never-married men in public life. Imagine a David Souter nomination in the era of unrestrained blogging. Online speculation about the meaning of his bachelor status would have been rampant.

The part where gender enters the discussion involves the underlying reasons. I don’t know any single men of a certain age who would have preferred to have gotten married. I know many single women who would have preferred that their lives had worked out differently.

The brutal fact is that if a never-married man in his 40s or 50s decides, well, better late than never, he’s got options — some of them in their 20s or 30s. A never-married woman tends not to have the same array of choices.

And — here’s the tricky part — what if the never-married woman is, say, the dean of Harvard Law School? Or solicitor general of the United States? Or a Supreme Court justice? Power is the ultimate aphrodisiac, Henry Kissinger famously said, but its magical properties seem to work best on the female sex.

Walzer touched on this in her comments to Politico, describing how, in law school, she and Kagan would discuss ways to be smart and confident without intimidating potential dates. “It’s an ongoing challenge for very smart women — there are not very many men who would choose women who are smarter than they are,” Walzer said.

This may sound at first like an old-fashioned mind-set — more Wellesley in the mid-1950s than Harvard Law School in the mid-1980s. As it happens, I was at Harvard Law School in the mid-1980s, and I don’t think the men there were put off by smart women.

But put off by women smarter than them? Very possibly, even if not consciously. The smarter and more successful the woman, the more complicated the dating dynamic: how to leaven that intellect and competence to make the package a bit less threatening.

As I said, if Kagan were gay, this would be a much easier discussion.

Ruth Marcus’ e-mail address is marcusr(at symbol)

© 2010, Washington Post Writers Group

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