HRC Blog

Kagan: A Nominee that Knows LGBT Issues

Elena Kagan’s record indicates she may be more familiar with how laws and policies affect the LGBT community than any individual previously nominated to serve on the Supreme Court.  Her record shows she has worked on LGBT issues during many phases of her career. As Dean of Harvard Law School (HLS), Kagan described the “Don’t Ask, Don’t Tell” law as “a profound wrong – a moral injustice of the first order” and went on to block military recruiters from using the HLS Office of Career Services because of the military’s prohibition on lesbians and gays serving openly.  In addition, as both a professor and dean of HLS, Kagan participated in numerous events with HLS Lambda, HLS’s LGBT student organization, as well as Harvard University’s Gay & Lesbian Alumni and HLS’s Gay & Lesbian Alumni.  On multiple occasions, she welcomed attendees and moderated panel discussions at Lambda conferences.  When being introduced as a moderator for a panel discussion on “Don’t Ask, Don’t Tell,” an organizer of the event noted:

“She has been a staunch critic of the Solomon Amendment, and in the months leading up to and following the Supreme Court's decision in FAIR v. Rumsfeld, she met regularly with students to discuss ways in which the Law School could help to ameliorate the harmful discriminatory effects of the Solomon Amendment and ‘Don't Ask, Don't Tell’ generally. This conference would not have been possible without the tremendous support HLS Lambda received from Dean Kagan and her office.”

By working to make Harvard and HLS welcoming to LGBT students and alumni, Kagan demonstrated that she considered LGBT individuals a vital part of the Harvard and HLS community. Kagan was also involved in the discussions of LGBT issues during her time in the Clinton Administration.  It is clear by the records released by the William J. Clinton Presidential Library that Kagan has had experience with how numerous issues affect the LGBT community:  lack of domestic partner workplace benefits; the number of gays and lesbians discharged under “Don’t Ask, Don’t Tell”; employment discrimination suffered by lesbian and gay individuals; the importance of needle exchange programs to prevent the spread of HIV/AIDS; the need for an Executive Order to prevent employment discrimination by the federal government based on sexual orientation; discrimination suffered by lesbian and gay medical patients; legislative attempts to block same-sex parent adoption; difficulties the White House had in confirming gay Presidential nominees;  and state litigation on same-sex relationship recognition (particularly in Hawaii and Vermont). In addition, Kagan played a key role in the Clinton Administration’s support of expanded hate crimes legislation.  She was a primary organizer of a 1997 White House Hate Crimes Conference designed to call national attention to the problem of hate crimes.  At the conference, the Clinton Administration called for the 105th Congress to pass an expanded federal hate crimes law that would criminalize hate crimes based on several new factors, including sexual orientation.  Following the conference, President Clinton instructed all U.S. Attorney's offices to set up hate crimes working groups that would work with the community to prevent and prosecute hate crimes.  Kagan played an integral role in advocating for the President to get involved in this Department of Justice initiative.  Moreover, after the 105th Congress failed to pass expanded hate crimes legislation, Kagan was involved in an April 6, 1999 press conference by President Clinton urging the 106th Congress to pass the law.  From these actions, we can conclude that Kagan understood the impact of hate crimes on the lesbian and gay community and the importance of a federal law prohibiting such crimes. Additionally, as Deputy Director of the Domestic Policy Council (DPC), Kagan appears to have been deeply involved in domestic policy initiatives to prevent and treat HIV/AIDS.  During her time as Deputy Director, the DPC worked to increase funding for HIV/AIDS programs, including those under the Ryan White CARE Act.  It also established a working group on HIV/AIDS prevention and treatment and promoted a study on the standard of services and care needed by people living with HIV.   Finally, it advocated that the President create a new grant program for HIV/AIDS vaccine research.  HIV/AIDS continues to be a critical issue for the LGBT community, and Kagan’s understanding of this critical issue could serve her well as a justice on the Supreme Court. During her hearing to become Solicitor General, Kagan identified among the “moral injustices” of our society “the exclusion of individuals from basic economic, civic, and political opportunities . . . on the basis of race, nationality, sex, religion, and sexual orientation.”  With her hearing to be the next justice of Supreme Court only three days away, we await to hear more from Kagan about her experience, beliefs and judicial philosophy. Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page. Partial Contribution by Jessica Singleton, Legal Assistant.

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