I speculated on the Sexuality of Supreme Court Justices before it was cool

Is Elena Kagan a gay? Thats the question that people all over the nation aren’t asking, but are insinuating to the point of preposterousness. Luckily, Gawker has put together a summary of the insinuations that Kagan is a lesbian:

The Haircut: Its not business short, its lesbian short.

She’s never been married: No even Sotomayor style where she got engaged but it broke apart.

She opposed don’t ask, don’t tell: Because civil liberties are totally gay

She played softball: Also, she played on the Supreme Court clerk’s basketball team

She wears plaid flannel: The only pictures we have of her not in a business suit, or dressed as a judge for her high school yearbook, are her in plaid flannel

She never denies that she’s a lesbian: Because its true

She’s a former student newspaper editor with the nickname “shorty“: Because anyone with those qualities is a total fag.

However, while all this speculation about Kagan’s sexuality is fun and a great way to fill the 24-hour news cycle, its old news. I was doing all this before it was cool, speculating about the sexuality of our first Hispanic Supreme Court Justice, Benjamin N. Cardozo, in the Cardozo Jurist (PDF: cardozo some kind of sexual):

“As the news of Yeshiva University’s appalling attitude towards homosexuality spreads throughout Cardozo, students should be shocked, but not for the reason they may think. Sure, there is the hypocrisy of a historically discriminated demographic attempting to stifle another historically discriminated demographic. Not to mention an attitude towards homosexuality that seems more at home in Iran. But what makes the whole situation so shocking is the sheer irony is that it’s occurring at a university that named its law school after Benjamin N. Cardozo, a man whose own sexual orientation is quite questionable.

Admittedly, it is not academically honest to impose contemporary concepts of sexuality upon other times, cultures or societies. Furthermore, facts about Cardozo’s sexual orientation are limited to what is documented in the historical record, which is unfortunately sparse due to Cardozo’s private nature. However, it is not too much of a stretch to say that Cardozo was some sort of a sexual, and it ain’t hetero.

So while there is no direct evidence proving Cardozo’s sexual orientation, there is hearsay and conjecture, which are kinds of evidence.

As far as the current historical consensus says, Cardozo can join Isaac Newton among history’s famous life-long virgins. However, that does not mean he was never interested in women. In fact, he was very interested in one: his sister, Nellie. According to Richard Polenberg’s book on Cardozo, our namesake judge admitted that he “never could give Nellie the second place” in his life. This sort of sibling devotion would seem out of place in the Osmond family, let alone in an established New York, Jewish aristocracy.

Then again, this devotion to his sister may have been exaggerated by Cardozo’s friends. However, they did not tell these tales to spread rumors about Cardozo’s deviant sexuality. On the contrary, they spread the rumors to create an excuse for his non-traditional sexual habits. These are the very same friends who often described Cardozo as beautiful, exquisite and sensitive. Or as Seinfeld would put it in an outdated reference: thin, single and neat. Not that there is anything wrong with that.

Even as a child, Cardozo was personally tutored by Horatio Alger, who himself was haunted by accusations of homosexuality and pederasty. One might as well say that Cardozo enjoyed spending his salad days drinking wine with the priest from Doubt.

On the other hand, Judge Learned Hand is quoted as saying that Cardozo had “no trace of homosexuality anyway.” But that doesn’t really count because Learned Hand never even made it to the Supreme Court.

Indeed, a smattering of anecdotes does not mean that Cardozo would have been the president of OUTlaw at turn of the century Columbia. However, one must admit that Cardozo’s sexual history does not conform to contemporary standards of heteronormativity. In fact, the best way to describe Cardozo’s personal life would be: queer.

In the end, historical density and Cardozo’s own privacy make his sexuality a question that will never get a definitive answer. But this mysteriousness does not mean it should never be discussed, shoved in a corner because of a perverted sense of “modesty.” Cardozo’s personal history is not something that should be treated in a discreet manner just because it may ruffle some issues of sensitivity. Academic integrity demands that universities leave no stone unturned and no question unasked in the constant adventure of academia. However, if President Joel and Rabbi Reiss have their way, we would halt at the first sense of discomfort, never leaving sight of the intellectual shore. And if that is how the current administration wants to run Yeshiva, and Cardozo, then they should put it in the prospective student paraphernalia, because that is not the sort of law school I signed up for.”

Now, as I have become accustomed to, my column received an angry response the rhetoric of which hints that the author either did not read the entire column or simply didn’t get the point. Given the string of factual rebuttals in the response, this one is probably in the latter category. (PDF: Reject Cardozo sexuality 1, Reject Cardozo Sexuality 2)

Despite the actual titles, I believe a more accurate headline would have been “Response to Evan: Nuh-uh!” Read the whole thing if you want, but it can be summed up with one line:

“With all due respect to Mr. Mintz, to advance such a provocative idea only to then ultimately plead historical inscrutability is an act of intellectual dishonesty.”

Of course it is intellectual dishonesty! I admit to that in my second paragraph:

“Admittedly, it is not academically honest to impose contemporary concepts of sexuality upon other times, cultures or societies.”

Of course its not intellectually honest, but its also lots of fun!

In the end, my column was not an academic paper, it was a column in the student newspaper, with the purpose of making a point and possibly be entertaining. Thus is the essence of punditry (?).

In conclusion, Kagan is just as gay as Cardozo.

EDIT: They’re also both Jewish, which is as close as you can get to being gay without being Asian or French.

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