Sexual Preference and the U.S. Supreme Court

Solic­i­tor Gen­eral of the United States Elena Kagan, who should be news­wor­thy only because she is cur­rently nom­i­nated to the U.S. Supreme Court, has been deemed news­wor­thy by The Wall Street Jour­nal for play­ing soft­ball in 1993 (Thanks to my friend The Cura­tor for orig­i­nally point­ing this out to me). This has caused a mas­sive stir among some por­tions of the media, pri­mar­ily about Elena Kagan’s sex­ual ori­en­ta­tion. For rea­sons that I do not under­stand, hav­ing played soft­ball in 1993 indi­cates to some that she is gay. If this were not such a seri­ous issue, I could find some amuse­ment in all of the pos­tur­ing. I never real­ized soft­ball is indi­ca­tor of sex­ual ori­en­ta­tion! Truly sur­pris­ing given the num­ber of local Christian-church spon­sored schools cur­rently play­ing in high school soft­ball play­off games in spite of the spon­sor­ing Church’s strong oppo­si­tion to gay and les­bian lifestyles.

I am also very dis­turbed that the same groups that seem to be mak­ing an issue of this “non-issue” are the very ones that, when it suits them, turn to a very strict read­ing of the U.S. Con­sti­tu­tion. But they do not seem to want to do that in this case. What the U.S. Con­sti­tu­tion says about the Supreme Court, which is the only part of our judi­cial sys­tem specif­i­cally called out in the Con­sti­tu­tion, is as follows.

U.S. Con­sti­tu­tion
Arti­cle III
Sec­tion 1.

The judi­cial Power of the United States, shall be vested in one supreme Court, and in such infe­rior Courts as the Con­gress may from time to time ordain and estab­lish. The Judges, both of the supreme and infe­rior Courts, shall hold their Offices dur­ing good Behav­iour, and shall, at stated Times, receive for their Ser­vices, a Com­pen­sa­tion, which shall not be dimin­ished dur­ing their Con­tin­u­ance in Office.

Sec­tion 2.

The judi­cial Power shall extend to all Cases, in Law and Equity, aris­ing under this Con­sti­tu­tion, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affect­ing Ambas­sadors, other pub­lic min­is­ters and Consuls;–to all Cases of admi­ralty and mar­itime Jurisdiction;–to Con­tro­ver­sies to which the United States shall be a Party;–to Con­tro­ver­sies between two or more States;–between a State and Cit­i­zens of another State;–between Cit­i­zens of dif­fer­ent States;–between Cit­i­zens of the same State claim­ing Lands under Grants of dif­fer­ent States, and between a State, or the Cit­i­zens thereof, and for­eign States, Cit­i­zens or Subjects.

In all Cases affect­ing Ambas­sadors, other pub­lic Min­is­ters and Con­suls, and those in which a State shall be Party, the supreme Court shall have orig­i­nal Juris­dic­tion. In all the other Cases before men­tioned, the supreme Court shall have appel­late Juris­dic­tion, both as to Law and Fact, with such Excep­tions, and under such Reg­u­la­tions as the Con­gress shall make.

The Trial of all Crimes, except in Cases of Impeach­ment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been com­mit­ted; but when not com­mit­ted within any State, the Trial shall be at such Place or Places as the Con­gress may by Law have directed.

Sec­tion 3.

Trea­son against the United States, shall con­sist only in levy­ing War against them, or in adher­ing to their Ene­mies, giv­ing them Aid and Com­fort. No Per­son shall be con­victed of Trea­son unless on the Tes­ti­mony of two Wit­nesses to the same overt Act, or on Con­fes­sion in open Court.

The Con­gress shall have Power to declare the Pun­ish­ment of Trea­son, but no Attain­der of Trea­son shall work Cor­rup­tion of Blood, or For­fei­ture except dur­ing the Life of the Per­son attainted.

I find no men­tion of soft­ball or sex­ual ori­en­ta­tion. So if the Sec­ond Amend­ment means the guy down the street can have a semi­au­to­matic strapped to his belt because it does not explic­itly pre­clude it when it allows “arms”, then a U.S. Supreme Court Jus­tice is allowed to have played soft­ball in college.

I sure wish our polit­i­cal sys­tem allowed hon­est debate instead of this insane posturing!

Is Still Here