Kelsey Grammer, Who Do You Think You Are?

I listen to a lot of podcasts every day, and a couple of times a month I get some genealogy-related ones.  Among those is Lisa Louise Cooke’s Genealogy Gems, which I have mentioned previously.  On her most recent episode she featured a (second) interview with Lisa Kudrow, star of Friends, The Comeback, and (for our purposes) an Executive Producer of Who Do You Think You Are.

I would not normally make a second plug for anything so soon after I made the first one, but I was fascinated by the interview.  Kudrow was actually pretty honest about the flaws of the show despite the fact the interview was completely softball and fawning.  In particular, she lamented how similar this season’s celebrity stories have been, and how the ethnic mix for the celebrities has been, especially since the show moved to TLC, nearly completely homogenous (not her words, but that was the gist).  I bring this up, because I made the same complaint last week, so I felt rather gratified to hear the show’s EP make my exact  complaint in a program uploaded to the Internet half a day after I posted my critique.

Another criticism of Kudrow’s was about how rushed this season has been (she effusively praised the hardworking researchers who found stories and crafted coherent and enticing narratives in such a limited time).  She said next season, which starts this coming January, will go a long way to rectifying what she sees as problems with this season.

I bring this up for two reasons.  First I want to give credit where credit is due (and point out that I am not alone in my complaints).  Second, Kudrow’s criticism is especially apt for this week’s episode, which was, frankly, boring.  There is nothing wrong exactly with the episode; the Oregon Trail is a new historical event for the show, but how many pioneer ancestors can we possibly see?  And the ending monologue every week–bravery, blah blah, pride, blah blah, courage.  It all merges into the same story after a while even if the particulars are different.

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Kelsey Grammer was the son of Frank Allen Grammer Jr. and Sally (Cranmer) Grammer.  Kelsey was born in St. Thomas in the Virgin Islands and when he was two, his parents divorced and his mother moved in with her parents Gordon and Evangeline (Dimmick) Cranmer.  Grammer’s life was tinged with tragedy.  His father died at age 38, his grandfather died at 63, two twin half-brothers died in a scuba diving accident, and most horrifying of all, his sister Karen was abducted, raped, and murdered two weeks before her 19th birthday.

In between tragedies, Grammer became very close to his grandmother Evangeline (whom he called Gam).  It is her life he wanted to know about.  She never spoke about her mother–never even said her name–and only mentioned her father once, who walked out on the family when she was little.  Evangeline found him when she was older, and he wanted nothing to do with her.  Evangeline was raised by her aunts, especially her Aunt Lela.  Grammer wanted to know why.

First Grammer met with family historian Jennifer Utley who, via Ancestry (plug 5 minutes in),  found Evangeline in the 1910 Census.  She lived in Alameda, California with her mother Genevieve Dimmick and with Genevieve’s family, including parents, Charles B. and Amelia R. Geddes and sisters Evangeline, Minerva, and Lela (who in 1910 is listed as Delia).  Genevieve had been married for 5 years, but there is no mention of a husband.  On my own perusal of records, what I found particularly interesting is that Evangeline the elder was divorced, which was not mentioned in the episode, but was actually an important piece of information in hindsight with regard to Genevieve’s story.  (Also not noted, Charles, Amelia, and Evangeline the Elder were all naturalized, having been born in Nova Scotia.)

The next stop was the 1920 Census, where Grammer found that his grandmother was living with her Genevieve’s sister Eland Swindell and her family.  Genevieve, Minerva, and Lela lived in the same residence but were a different household.  The historian offered an explanation for that, but I forget now.  Something about a split level home.  In any case, Genevieve is now divorced.

Grammer went to a repository of digitized articles from California and in 1913, he found that Genevieve brought charges that her husband Ellis Dimmick neglected and deserted her.  Apparently they married in Oakland in 1905 and he left her later that year (the implication being that Genevieve was pregnant when they married).  But why wait 8 years before filing for divorce?  Grammer went to the Bay Area to find someone to explain divorce in that era.

And he got a social historian who found the final decree of divorce.  Genevieve Marriott Dimmick filed for divorce against Ellis Loughborough Dimmick, who did not participate in the proceedings.  Why did it take so long?  Grammer and the historian talked about social stigma.  Maybe it was Genevieve who felt the social stigma or maybe her parents pressured her.  (There was already one daughter who was divorced, although again, never mentioned.)  But I wondered–and this was never brought up–if perhaps there was a specific amount of time that had to pass before a woman could get a divorce on the grounds of desertion.

Grammer got more information about Genevieve, specifically her death certificate.  She remarried William Foltz and died at age 52 (in 1924).  The cause was cirrhosis of the liver, meaning that she was probably an alcoholic.  There was some discussion about Prohibition and Genevieve being a victim of her time.  Grammer posited that she was a party girl and Ellis probably knocked got her pregnant, which is why they got married.  And that seemed to answer why Evangeline never spoke about her mother.

With that, Grammer closed the book of Genevieve and turned to Ellis.  He went to Oakland to learn about his great-grandfather.  At this point I notice that typical WDYTYA arc of tragedy and triumph.  We are well into the tragedy part.  Inevitably there will be some family redemption, but I wondered how.  It turned out we would not find it with Ellis.

Ellis Loughborough Dimmick was, how do I put this gently?  From the evidence shown, he appeared to be a rat bastard of a human being.  In 1908 at age 29, three years after his marriage, he joined the Marine.  He waived his marriage so that he kept all his salary rather than send any to his wife and child.  His record notes many absences over leave and one glaring AWOL.  Then Grammer read the comments that (commercial break for drama) he was discharged as undesirable because of habitual use of intoxicants.  He was also labeled as having a bad character.  He spent a lot of time in the brig living on bread and water, and his salary was repeatedly docked.  In 1917, he worked as a night porter at the exclusive Shattuck Hotel in Berkley.  On his World War I Selective Service Card, he listed his daughter Evangeline Lucille Dimmick (address unknown) as his dependent.  Grammer thought it was a showing of decency, but I wonder if it was a way of avoiding the possibility of getting drafted.

It is a cliché of WDYTYA that the celebrity always finds some virtue of him or herself in the ancestor being traced.  It is always, always, always a virtue–never a vice.  The irony is that whereas most celebrities struggle to make these far-fetched connections with ancestors, Kelsey Grammer already has some, granted dubious ones.  Over the years, Grammer has had some very well-publicized battles with his personal demons, specifically alcohol and cocaine addiction.  Substance abuse has a biological/genetic component, and Grammer discovered that two great-grandparents were also substance abusers.  Maybe that is a little heavy for the show, maybe it is just too personal for Grammer to talk about, I don’t know, and I am not going to assume or judge.  But I will say that when I heard about the fates of his great-grandparents, I wondered what went through his mind and if he made any kind of connection.  Grammer may have made a slight allusion to his past, but it went by very quickly.

Grammer got one last piece of evidence about Ellis, his death certificate.  He died at age 60 of arteriosclerosis.  His parents Joseph and Mary (Krichbaum) Dimmick were from the Midwest.

Back to the Census, this time 1880, Grammer found the Dimmicks living in Oakland.  Prodded by the historian, Grammer found that the younger children were born in California, but the eldest two were born in Oregon.  So that led Grammer to go to Portland rather than the places of birth of his 2nd great-grandparents.  Because this show is extremely heavy-handed and obvious.

En route to Portland, Grammer thinks of the Oregon Trail.  I do too, except that my recollections of the Oregon Trail are tinged by that old video game that I played endlessly as a child on the Apple II (as a banker because that gave you the most money to spend).  Also, I killed a lot of pixellated bison even though they weighed 900 pounds and I could only carry 100 pounds back to my wagon.  It was a horrible waste.  I am responsible for the near extinction of computer-generated bison along the Oregon Trail, and I feel horrible about it.  Maybe that is why I am a vegan today.

Grammer met Oregon Historian David Del Mar who told him about Joseph Dimmick, the son of Joseph Dimmick (born in New York) and his wife Comfort (Dean) Dimmick.  The names in this episode are fabulous: Evangeline, Genevieve, Minerva, Lela, Eland, Ellis, Comfort, Lucinda, Ebeneezer, and my personal favorite, Athalinda.  Love it.

Joseph the Younger (Grammer’s 2nd great-grandfather) is one of 14 children.  Or more.  There are multiple sources and the one that is least accurate was on WDYTYA which undercounted.  (I counted from the 1950 Census, and I could tell 12 was too few.)  It appears there may be a few more Dimmicks than were counted on the show.  Not that is matters.  The Dimmicks moved from Rushville, Illinois to Oregon along the Oregon Trail.  Land was cheap, and the scenery was beautiful.  Of course, pre-Transcontinental Railroad, getting to Oregon was exceedingly difficult, and the Dimmicks lost their eldest son Thomas to cholera along the way.  (A nephew of Joseph the Elder kept an account of the trek that history professor Peter Boag showed to Grammar.  According to that account, more people died than just Thomas.  It is very sad.)  But the rest of the family made it.  Joseph and Comfort both got land, and Joseph died on it.  There was a small biographical portrait of him, and he was listed as a pioneer, which is apparently a badge of honor in Oregon.  Thus, we have the triumph part of the requisite tragedy and triumph arc I mentioned above.  The episode ended with Kelsey Grammer waxing poetically about bravery and courage and pride, and I lost focus thinking about this write-up.

Next up: Lauren Graham and the season finale.

Edit:  The Lauren Graham episode is not airing this season if at all.  Instead next week will feature Minnie Driver.  Driver was actually featured on the BBC series, which means that this episode is probably a reedited version of that. 

Valerie Bertinelli, Who Do You Think You Are?

The problem with a genealogy based television show is that if you watch week in and week out, eventually you get a sense of déjà vu.  On its own, the Valerie Bertinelli edition of Who Do You Think You Are is quite good.  But having seen every episode since Season 1 (and some episodes from series outside the US), I felt like I had seen it all before even if some of the details were different.  A trip to Italy?  Susan Sarandon, Brooke Shields, and Marissa Tomei.  Meeting a long-lost relatives.  Tomei and Rita Wilson.  Nobility in the family stretching back through the centuries?  Shields again and Cindy Crawford.  (It was no accident that the repeat episode following tonight’s was Brooke Shields.)  English and/or colonial American ancestry?  That must be at least 75% of the guests.

Perhaps it is an unhappy accident within our celebrity culture that the people we elevate, or at least those with a traceable story, tend to have similar backgrounds.  Personally, I would be interested to see a story that went to places we haven’t really been to: Latin America, the Caribbean, Africa (preferably with a traceable story that doesn’t rely on questionable DNA evidence), anywhere in Asia, Oceania, or a Northern European country that is neither a British Isle nor Germany.  I am not faulting the show–it is not the fault of the researchers if the story is just not there–but I cannot deny having a wish list.

Like I said, tonight’s episode was good, aided by the fact that we have returned to a format in which more than one story is pursued.  It was a nice bit of variety and it releases the claustrophobia that can potentially build up following just one ancestor.  On the other hand, there were a lot of names thrown at us tonight and the spellings were not entirely reviewer friendly.  Please be kind if I misspell a name, and feel confident in the knowledge I am losing potential Google search hits as a result of my errors.

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Valerie Bertinelli, star of One Day at a Time, Cafe Americain, and Hot in Cleveland, and the former Mrs. Eddie Van Halen, is the daughter of Andrew and Nancy (Carvin) Bertinelli.  She was very close to her father’s family, but her mother’s side was a mystery as her mother left home at a very early age and immersed herself in the Bertinelli family.  Nancy’s parents were Lester Carvin and Elizabeth Adams Chambers Carvin, leading Valerie to believe that her mother’s family was originally English.  As such, Valerie’s son Wolfie wanted to know if there was a family crest (spoiler: of course there was).

Before that inevitable reveal though we learned a bit about Andrew Bertinelli’s family.  Valerie was very close to Andrew’s mother, her grandmother Angelina (Croso). Beyond her, Valerie knew almost nothing.  Here, you will have to forgive me, dear reader.  I had a very rough commute home, and then my computer froze so until the first commercial break I had to write my notes rather than type them, so I cannot remember how the following events occurred.  (1.)  Valerie received a picture of Angelina’s mother, Maria standing behind an gelato stand that she ran.  There were other women in the picture and a little girl who might have been Angelina.  (2.)  Maria remarried a man whose last name was Mancia, and lived on a farm in Lackawanna County, Pennsylvania.

Using Ancestry (plug 5 minutes in), Valerie found Maria and her husband Gregrorio  Mancia (spelled Mancha) in the 1920 Census.  They lived in Jefferson in Lackawanna with Maria’s two children Angelina and Giorgio, both were listed as “Manchas” on the Census but were actually Crosos.  Valerie traveled to the Lackawanna Historical Society in Scranton, and bonus points if the theme song from The Office was stuck in your head.

At the Historical Society, Valerie learned that a widowed Maria deeded her farm to her daughter and son-in-law Angelina and Nazzareno Bertinelli, doing so only a week after her husband died in 1931.  How did he die?  By using the Ancestry-owned Newspapers.com (plug 9 minutes in), we get the whole horrible story: Gregorio shot himself in the head after attempting to kill Maria.  She was in bed, and lay still as if dead, pretended that he killed her.  Then he killed himself.  That was traumatic just to listen to.

Valerie was given one last document, an obituary for her great-grandmother (called Mary) dated July 6, 1961.  Her survivors included her two children and a brother Joseph Possio.  The discovery of this maiden name, led Valerie back to Ancestry (15 minutes) to find an immigration record from 1915 for Maria Possio, age 36, and her two children “Maddalena” (Angelina) and Giorgio Croso.  The show never really answered why Maria reverted to her maiden name on the passenger list (although perhaps it has something to do with the fact that she was joining her brother already in the US), as she was a widow when she set sail, but Valerie did learn that Maria came from Lanzo in the Province of Turin (Torino), Valerie’s next stop.

Valerie went to the Lanzo Library where she discovered that Maria Possio married Francesco Croso in 1910 when she was 31.  There had already been a daughter (Maddalena/Angelina) born from “their natural union” which is a very ecclesiastical/political/polite way of saying that the daughter was born out-of-wedlock.  The historian assured Valerie that the marriage was a way to legitimize Angelina, and that the reason they had not married was because church weddings were very expensive and dowry expectations were unrealistically high.  Giorgio was born about a year later and three or four years later, Maria left town.

Francesco Croso died of a heart attack about a year into the marriage, and that was when Maria ran the gelato cart in Valerie’s picture.  Apparently, Maria’s story was uncommon.  The historian helping Valerie said she asked around Lanzo about the Possios and found someone who knew them but would not say anything more, which (of course) meant that the person she found was a relative.  Valerie then gave a little speech about how brave her great-grandmother was, and I would have loved to listen, but I swear I have heard this same speech every single episode this season, and I was desperately trying to figure out how to spell some of these Italian names.

As predicted, the mystery guest was a relative: Pietro Possio who said he was Valerie’s third cousin as his grandfather was Maria’s first cousin.  Actually, the relationship is third cousins once removed, but who’s counting.  Pietro and Valerie are both overjoyed, and he gave her a postcard sent by Maria to her Lanzo family on the eve of her departure, although something confused me.  The postcard appeared to be from Palermo, which is in Sicily, and Maria’s ship left from Genoa in northern Italy, not terribly far from Lanzo.  Did my eyes deceive me?  Pietro also had a letter that his father Francesco wrote to Angelina (although why he had a letter that was presumable mailed and received a continent away is a mystery that remained unaddressed) asking her to ask her children to write him–even in English–and to one day visit.  Valerie said that her visit to Lanzo was the fulfillment of that dream.

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After the happy reunion, Valerie went to London to research her mother’s side of the family.  Her first stop was the Society for Antiquaries.  Valerie talked about how she never thought much about her English ancestry because of her Italian last name, and I am reminded of the Jewish genealogist Arthur Kurzweil, who wrote in his book From Generation to Generation (one of the first important books on Jewish genealogy):

After seven years of research on one of the many branches in my family, I realized that I had made a mistake: I had neglected all of the other branches.  In large part, it was the fact that my last name is Kurzweil which subconsciously made me think that I was more a Kurzweil than a Gottlieb, which is my mother’s maiden name.  For that matter, I was equally an Ennis, which is father’s mother’s maiden name.  I am also just as much a Klein, a Loventhal, a Rath, a Grünberger, and countless other names as well.

It is a lesson that every genealogist needs to learn, and bravo to Valerie for acknowledging it

At the Society for Antiquaries, Valerie received a massive family tree of her mother’s side (which was very New Jersey heavy).  Her grandmother Elizabeth did not have much of a pedigree, but her grandfather Lester had a family tree that traced back many generation.  His parents were Joseph and Ida (Gooden) Carvin.  Ida’s parents were Joseph and Mary Emma (Bishop) Gooden.  Mary’s parents were Benjamin and Mary (Claypoole) Bishop.  And then the genealogist told Valerie that the Claypooles were “gateway ancestors,” ancestors who link seemingly ordinary lineages to nobility or royalty or both (and thus potentially go back dozens of generations).  WDYTYA previously showed one such gateway ancestor in the Cindy Crawford episode, when she learned about Thomas Trowbridge.

The Claypooles in particular are an especially important family because Mary Claypoole Bishop’s 3rd great-grandfather (and Valerie’s 8th) was James Claypoole (b. 1634 in England) who was involved in the birth of the Quakers.  The Quakers, with their beliefs in full equality of souls, men and women, highborn and low (which is why for a long time they adopted the informal “thou” rather than the formal “you.”)  As a result of such heresy, they were imprisoned.  James Claypoole was so significant that Valerie discovered a James Claypoole Letter Book, a compilation of letters he wrote, including one from 1683 to his friend William Penn.  Being a native of Pennsylvania, I knew very well who William Penn was, and I was glad to see that Valerie did also.  James Claypoole wrote to Penn that he wished also to go to Pennsylvania, which was settled as a haven for Quakers (who were not welcome in, among other places, Puritan Massachusetts).  Valerie also got to see a copy of a document written in England, an early constitution written by William Penn to govern the Pennsylvania colony, making it one of the oldest constitutions in the world.  Naturally, one of the signed witnesses was James Claypoole.

At the end of the book of his letters, James Claypoole’s life was summarized.  He was elected to the Provisional Council in Philadelphia, but died shortly thereafter on August 6, 1687.  His wife Helena survived him by only a year, but he left to her, among other things, his coat of arms, which made Valerie very happy to hear, because her son wanted it so badly, and because a coat of arms is apparently a big deal.

Valerie’s next stop was London’s College of Arms where she spoke to the Herald of Arms.  There she saw the Claypoole coat of arms, which was a chevron with three circles around it.  The Herald gave her a little more history of the Claypoole family.  James’s great-grandfather (also James) was a yeoman but made money and became a gentleman, which is how he got his coat of arms.  Although the Claypoole line did not extend much further back, the elder James’s son Adam married Dorothy Wingfield, whose bloodline was very long indeed.  In fact, it is so long and confusing, I will just tell you the punchline–Dorothy Wingfield, and thus young James Claypoole and his descendants, including Valerie, are descended from Edward I “Longshanks” of England, one of the major Plantagenet kings.  I looked up the genealogy (lots of Elizabeths and deBohuns), and it is rough to describe.

The problem that I had here was not the big reveal, but what was left out.  If Valerie is a descendant of Edward I, then she is also a descendant of a host of Plantagenet and Norman monarchs including such famous names as William the Conqueror and Henry II, and infamous ones such as John (think Robin Hood).  And while it is nice to focus on the king who subjugated Wales and grudgingly allowed the beginnings of Parliament, isn’t the Battle of Hastings more interesting?  And then if we can trace back to William the Conqueror, we can almost definitely trace back to Charlemagne, and Valerie and Cousin Cindy Crawford can get together for a family reunion.

Valerie returned home for a family reunion to share her information, which is the first time in a while we’ve seen that.  That is the nice part of this genealogy passion, when the people around us are as amazed as we are by the things we find.

Next week: Kelsey Grammar

Rachel and Kayleen McAdams, Who Do You Guys Think You Are, Eh?

It’s time to talk about that most frustrating part of family tree research; the family.  Genealogy is a less a hobby than an obsession, and as with any obsession, it often mystifies the people around us who just don’t understand.  Sometimes we get a little bit of interest, while other times it seems that we are talking some poor, unwilling soul’s ear off.  We may not understand why our relatives don’t care about their own personal history, but they don’t, and they just want us to shut up.

I have two brothers, and neither of them has ever expressed an interest in even so much as looking at the family tree I have spent years building.  When I offered to show them, they said no.  Which is why tonight’s episode was something of a pleasant surprise for me–two siblings actively explore together.  Who Do You Think You Are almost always features family members, but usually at the beginning of the end of the journey.  This is the first time the show has actually featured two family members taking the entire journey together.  (Perhaps my brothers would be more interested if my research involved international travel.)  And one of said siblings is not even famous.
Speaking of this lack of fame, did this season of WDYTYA have its usual promo tagline of “Some of America’s most beloved celebrities”?  Because while we can joke about whether Valerie Bertinelli fits that bill, it is fair to say that Kayleen McAdams most certainly does not–regardless of how talented a makeup artist she is.

Kayleen is the makeup artist and Rachel McAdams is the star who was fantastic in Mean Girls.  The McAdamses are from the exotic land of Canada, although I believe that both of them live and work in the United States.

Before we get into the details of the show, I want to talk a little about Canada, the Jan Brady of North America.  WDYTYA is a British show, which had many offshoots around the world.  There was a Canadian version, but it did not last beyond a season, which is a shame.  Canadians who want to see their own celebrities’ stories must therefore either embrace either the British version (which originally aired the Kim Cattrall episode) or the American version (Rachel McAdams).  Just as Canadians sports have been incorporated into US leagues (hockey, baseball, soccer), so too are their celebrities incorporated into US television.  This particular episode is a fascinating look at Canadian history.  The episode also offered a glimpse into a fascinating alternative universe, Canada as a mirror image of the US, what would have happened had the 13 colonies not broken away from the mother country but instead remained loyal.  Maybe we in the US would have even had a period of sustained sensible governance and beneficial laws and policy.  Or perhaps as a southern neighbor I will block out what makes Canada great and instead think of Canada as a frostbitten wasteland where everyone pronounces “out” incorrectly, and Toronto is a short jaunt from Vancouver, eh?  (I am reminded of the Onion headline, “Perky ‘Canada’ Has Own Government, Laws.”)

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Rachel and Kayleen, are the daughters of Lance and Sandra (Gale) McAdams.  Their father was from a large, close family, so we can safely ignore them.  Their mother’s side is a mystery because their mother’s parents–Howard Gowen Gale and Eileen Maude (Bell) Gale–died when she was in her early 30’s.

Our intrepid heroines began in the US on the phone with their mother who sent them the Gale/Bell family tree.  Howard, who was a mechanic in the Battle of Britain, was born in Plymouth, England.  Mother McAdams also sent a photo of Howard’s parents, William and Beatrice Maud (Sedgmore) Gale.  William was a mechanic in the Royal Navy.  Mother McAdams suggested that her daughters start their search in Plymouth, and I died a little inside.  No research?  Not even on Ancestry?  (The plug would come 8 minutes in the episode, after they were already in Britain.)  Come on, WDYTYA!  Let’s at least pretend that this is an organic search.

At the Plymouth Central Library, genealogist Paul Blake showed the Sisters McAdams the marriage certificate of William and Beatrice Maud.  William was the son of William Henry Creber Gale (b. 2 Jan 1850) who in turn was the son of William Gale and Elizabeth Creber.  On his son’s birth certificate, William Gale the eldest was listed a servant, and on the 1851 Census, he was listed as a footman, which one of the sisters says was “very Downton Abbey.”  Sure, why not?  (My views of British servants is more informed by Gosford Park than Downton Abbey, so I kind of recoiled.)

William Gale was the footman.  Having no conception of the hierarchy of servants, I will take the show’s word for it when they say it was a big deal.  He was second only to the governess, and the face of the household.  His wife and child however, did not live with him, and his job was 24/7 and very demanding.  It seems like the job’s only redeeming grace was that it lifted his social standing, which was not insignificant, but what a trade-off.

William Gale’s family lived far away, and he barely saw them.  He met Elizabeth Creber because they had both been servants at the same house, but once she had a child she had to leave because while a married servant was acceptable, children of that union were not.  Probably because caring for a child would get in the way of around-the-clock-care for the family of the house.  William died in 1860 from delirium tremens (alcohol withdrawal).  There was some talking head/empathy for the fact that maybe this would not have happened had he had his wife and child near him, but honestly this is hypothetical psychobabble, which I really do not like about WDYTYA.

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The Sisters McAdams headed back to Canada in order to learn about how their family got to Canada, which I interpreted to mean why the Gales immigrated, but no, they were talking about the other side of the family.  Considering that the show focused on one tiny branch, the Grey family, my guess is the others were either not as interesting, impossible to trace, or merely redundant.

The Bell family tree goes back quite far.  So far and so quickly, I did not catch all the names thrown at the audience, although that does not really matter.  Somewhere along the maternal lineage we ended up with Rachel’s and Kayleen’s great-great-great-great-grandparents Alexander and Charlotte (Grey) McDonald.  They were born just around the time the American Revolution broke out.  The show did not care much about Alexander, but Charlotte was significant because in 1824 she petitioned the British crown as the daughter of James Grey of the Johnstown Loyalists for a land grant.  When the American Revolution broke out, James was a Loyalist who fled to Canada where he would eventually join the Loyalist Army.  WDYTYA’s narrator gave us a little history lesson about the Canadian side (or what would become the Canadian side) of the Revolution in the battle of the Loyalists vs. the Patriots.  Kayleen and Rachel discuss a Canadian identity (and hint at a Canadian inferiority complex) and wondered what their Loyalist ancestors would think about them working and living in the US.  I imagine not much, but both countries have changes tremendously in 230-some years, so who knows.  Largest undefended border in the world and all that.

At the City of Ottowa Archives, the Sisters were shown the document where James Grey first appeared in the historical record.  He was quartered at a refugee camp in 1779 at Fort Saint-Jean in Quebec with his wife and two sons.  They had fled from the Lake Champlain area around the New York/Vermont side of the border.  The historian assisting Rachel and Kayleen posited that James Grey was probably a farmer and a new settler because that area was full of new settlers.  After the British were defeated at Saratoga, the Loyalists left their land forever to settle in the harsher conditions of the refugee camp at Saint-Jean.  James Grey served in the Peters Corps in the Crown forces.

The Sisters McAdams went the land that was the site of one of the refugee camps, and looked like they were about to cry.  There were a lot of children housed in the camps and disease ran rampant.  One of James Grey’s sons died at the camp, probably from disease, which killed more than the actual fighting.  And after all that hardship, the American forces beat the British so the Loyalists could never go home.

To find out what happened to the Grey family, the Sisters headed to the Archives of Ontario in Toronto.  What struck me is how beautiful the architecture of Toronto is.  At the Archives, they found records of James Grey.  He was awarded two 200 acre lots of land along the Saint Lawrence River near the new United States.

Afterwards, the Sisters McAdams and their historian friend talked about this being a source of pride for many Canadians because these were the founders of Canada.  Which begs the question, is there a Canadian equivalent of the Daughters of the American Revolution?  It is a shame that there was no connection to the War of 1812, basically a wash for the United States and Great Britain, but a real win for Canada, which forever afterwards became not part of the US.

The Sisters were very excited to find out they had such deep roots in Canada.  One might say like the deep roots of an old maple tree.  Or something like that.  One of the sisters said she wanted to be more like her ancestors.  Here’s how you do it: attack the US.  Impose your universal health care, curling, and Anne Murray.  One of the McAdams sisters also said that ending the journey was like finished a book and she felt sad to leave the characters behind but excited to share the details with their mother.  I totally understand the finishing the book sadness; I felt incredible melancholy when I finished Don Quixote and War and Peace given how much time and effort it took to read them, but I am not sure why this is the end of the McAdams journey.  Genealogy goes on forever.  This is not the end; it is the beginning.  To any newbies out there, don’t listen to the McAdamses.

Next week is… I have no idea.  Wikipedia says Kelsey Grammar.  I missed the promo commercial, but it looked to be either Valerie Bertinelli or Lauren Graham.

Jesse Tyler Ferguson, Who Do You Think You Are

Last week, I discussed at length my disbelief about how the celebrity-of-the-day’s often extremely emotional response to the hardships of distant relatives the celebrity had never known about until a day or two before.  I am glad to see that today’s celebrity, Jesse Tyler Ferguson, has also expressed a similar sentiment.  Ferguson, like Cynthia Nixon, had an alleged murderer ancestor, and like Nixon, his reaction was visceral.  Nevertheless, Ferguson said that had it not been such a recent ancestor, the father of his beloved grandmother, he may not have experienced such strong feelings.

The series began at Ferguson’s home with a domestic scene of Ferguson and his husband Justin, who both advocates for marriage equality, and almost as much so for bow ties.  Ferguson gave a little background about his parents Anne Doyle and Bob Ferguson, and about his happy and stable childhood.  He said he was fortunate to know his maternal grandparents and was especially close to his paternal grandmother Jessie Uppercu Ferguson, whom he was named after.  It was because of his closeness to Jessie that he wanted to explore her side of the family.  Ferguson flew off to his native Albuquerque, New Mexico to discuss the search with his father.

After looking through photos (Ferguson is correct, he was a cute kid), he finds a very classy photo of a young Jessie and another photo of her father Jesse Wheat Uppercu (whom from hereon in will be JW).  JW, who was from Maryland, bears a very strong resemblance to Bob Ferguson.  In the photo, he is a very dapper gentleman.  The back of a photo had a message to his wife Elizabeth (née Quigg).

Starting not on Ancestry, but on Google, they searched for JW, who appeared as Jesse “Uppercue”.  And here I am going to register my first quibble.  Clearly starting on Google was not their idea–a search had already been done for Jesse Uppercue on that computer.  To which I say, if you want the suspension of disbelief, at least have the decency to create a good verisimilitude.

On Google, the Fergusons find that JW, who was 22, a law student, and an “unexceptional individual,” was arrested and tried for the murder of his aunt Amelia Wheat, with whom he lived.*  The newspaper article related that JW’s alibi was a crazy story about a robber.  From my limited perspective it seemed rather shady, but I guess he was more convincing on the stand and from his (many) character witnesses because, as we learn at the Maryland State Archives in Annapolis, he was acquitted.

The story, which Ferguson referred to as “the situation,” was that on July 26th, 1872, Amelia Wheat executed two wills, both written by the same attorney.  The first of those wills, made some charitable donations, but the bulk of the estate was left to nephew JW.  That estate totaled $22,000, or about $400,000 in today’s money.  JW was unhappy with the allotment, so, as the attorney was still there, a second will was drawn up to supersede the first.  The entirety of the estate was then left to JW.  A month later, Amelia was killed.

The first trial, from the September 1872 term, resulted in a hung jury.  The prosecution, believing they could win, retried the case in the January 1873 term, and this time JW was acquitted.  The record did not show whether he actually inherited.

Ferguson next found JW in the 1880 Census, the first census taken after the trials (Ancestry plug 19 minutes in).  To Ferguson’s shock, JW was married to an L.I. (Laura) Uppercu–who was not Ferguson’s great-grandmother.  Not only was he married, he had three children, the eldest of whom must have been born shortly after the trial.  JW and his family also lived in Evanston, Illinois, Ferguson’s next stop.

In Evanston, Ferguson received a timeline of JW’s life through 1897.  After Evanston, JW went to Fargo, then in the Dakota Territory, where, he was put on trial for embezzling $1800 (today’s value $50,000-$60,000) from First National Bank.  JW said he dropped the money and lost it, and apparently was again acquitted.  In 1886, he moved to St. Louis, where he divorced Laura because she complained too much about how horrible St. Louis was (make your own jokes here).  Later that year, he was again charged with embezzlement by the firm where he worked.  This time it was for $200, and he paid it back, so the charges were dropped.

In 1893, he was in Hoboken, New Jersey, and married his second wife Sadie Canta.  In 1897, he was a lawyer in Philadelphia.  Ferguson said he though JW was a bit of a con man; I think that is being polite.  He is every bit the stereotypical, vile, bloodsucker who profanes my profession (a reputation unfortunately often deserved).

After 1897, the timeline ended.  From a newspaper article Ferguson found out JW went to Alaska for the Klondike Gold Rush, the other Gold Rush in American history.  (I think Sarah Jessica Parker’s ancestor and Helen Hunt’s went to California for the earlier one.)  And thus, Ferguson went out to Wrangell, Alaska in the southeast part of the state.

Before Ferguson left, the historian in Evanston promised to do more research on the rest of JW’s life and send it to him in Alaska, and again, this is where the suspension of disbelief is really tested.  Months and months of research is done on the celebrity’s ancestry before the show films.  The deliberate misdirection that (1) they haven’t already done the research; and (2) that they can do all that research in about 3 days is just aggravating.

Ferguson thinks Alaska is beautiful, which having been there, I heartily concur.  He also cops to being “more of an indoor kid” which I also agree with.  Ferguson says he is allergic to clean air, and that line just made me laugh.  I think I may have said the same thing.

From the record, it turned out that JW put the Klondike expedition together.  He was the fundraiser and financial manager, and you could just see the color drain from Ferguson’s face when he heard that, although he said it was inspiring that his 48-year-old great-grandfather would put together an expedition like that.  As it happened, the secretary of the expedition sent reports back to his hometown paper, which were compiled in a book.  JW’s expedition was very large for the time, apparently almost uniquely so–60 men, 40 horses, and 90 tons of gold digging machinery.  The expedition began at Fort Wrangell and was to end in Dawson, which appeared to be in Canada, although the geography went by very quickly, and it was hard to follow especially while taking notes.

The expedition turned out to be a disaster, so much so that any members who desired to leave could do so and keep their interest in the expedition so long as they left their food and supplies.  24 men took that option, one of whom being JW.  His decision to leave was reported rather scathingly by the secretary, who basically called JW out as a terrible leader.  (The expedition was a complete bust for everyone involved.)  Ferguson tried to rationalize his own disappointment away, and the historian with him said that he should feel proud of his murdering, embezzling, family abandoning, expedition fleeing ancestor for getting as far as he did.  You convinced?  Me neither.  I hate, hate, hate when WDYTYA does something like that.  Learning how to live with the disappointments we find is all part of the genealogical experience.  Stop trying to sugarcoat it.

Back at the hotel, Ferguson got his package from the historian in Evanston.  In 1900, JW lived in Brooklyn with Sadie and their daughter Muriel.  He divorced Sadie seven years later.  Beginning in 1900, JW became a speaker for the Republican party for New York City municipal politics.  He also appeared to be a supporter of Teddy Roosevelt, which I guess made him a progressive, although that is never delved into.  In 1914 (aged 64) he married Elizabeth Quigg (a 24-year-old widow) and adopted her two children Grace and Dorothy.  He divorced Elizabeth in 1925.  In 1930, he was living in Rockland County with Grace, Dorothy, and his two new daughters Jessie (Ferguson’s grandmother) and Elizabeth.

This episode ends on a sadder note than most.  Ferguson tried to move past JW’s shady past and was grateful that he raised such a good person in his daughter Jessie.  Ferguson wished he could have shared his discoveries with her.  This is one of the most tragic parts of genealogy–when our loved ones are no longer around, and we can neither ask them questions nor share with them our discoveries.

Next week: Rachel McAdams and her sister Kayleen.

 

Footnotes:

* This past week, I heard an interview with Dan Bucatinsky, the writer/actor/best buddy of Lisa Kudrow/Executive Produce of Who Do You Think You Are.  It’s a fascinating interview from Lisa Louise Cooke who created and runs the Genealogy Gems podcast.  What struck me most from the interview was that Bucatinsky said that if he could do anything with the show, he would not limit it to 42 minutes but take as much time as it needs.  I wish that too because there are so many unanswered questions.  For example, why would JW live with his aunt, and did that help to create the person he would become?  I also think that more time would reveal to an even larger extent the person that JW truly was, including what happened to the children of his first two marriages, something that was completely dropped in the show.

 

Cynthia Nixon , Who Do You Think You Are?

Bear with me for a minute.  My brother is a fan of American Ninja Warrior, an imported Japanese game show in which extremely fit people sate their masochistic impulses by attempting (and failing) to conquer a ridiculously difficult obstacle course.  My brother complained that he preferred the Japanese version because the American version spends too much time on story and pathos of the competitors.  This is an opinion I share, but I have voiced similar complaints about the Olympics.  The focus on back story seems to be a peculiarly American phenomenon, and I often wonder who determines it, the audiences or the networks.  Do they show us the human interest story because we want it, or are we subjected to it because they determine that is what we want to see?

I often feel this way about Who Do You Think You Are.  In order to ensure pathos, authenticity is often needlessly sacrificed.  At its best, WDYTYA follows where the evidence leads.  Take, for example, the episodes in which Christina Applegate and Rita Wilson researched their grandmother and father respectively.  They had no preset agenda other than to learn.  Those are examples of how finely crafted WDYTYA can be.  Each climaxed in terrifically, aching moving resolutions without rewriting the historical record.

The flip side of this is that more often than not, WDYTYA does not let the evidence lead, but rather makes it subservient to a prefabricated story.   Celebrity of the Week knows nothing about his or her family but hopes to find something in particular–usually someone who shares a trait that Celebrity sees in him/herself.  Celebrity is then led to a particular ancestor and does his/her damnedest to find that trait in said ancestor.   Sometimes this is easy, sometimes not.  At its worst, WDYTYA becomes a show about personal vindication of the present rather than an exploration of history.

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Cynthia Nixon is now the third of the four Sex and City stars to have appeared on the show.  Like Sarah Jessica Parker’s episode and especially Kim Cattrall’s, it was a worthwhile watch (your story better be good, Kristin Davis).  Also like her costars, Nixon learns about an ancestor with a less than stellar reputation.  Whereas Parker’s ancestress was an accused witch in colonial Massachusetts and Cattrall’s maternal grandfather was a bigamist reprobate, Nixon’s 3rd great-grandmother, Martha Curnutt Casto, was a convicted killer.

(Side note: Cynthia Nixon is a fantastic actress, and I admire her desire to be outspoken on issues like marriage equality.  I think Nixon may even be the first LGBT celebrity whose activism and same-sex spouse have actually been mentioned on the show.  Who knew that the “gay agenda” spread to genealogy?)

Nixon’s parents (both deceased) divorced when she was young, and as she was much closer to her mother, she chose to research her father’s family.  This is one of those moments where I wondered if “chose” is WDYTYA code for “the producers could not find an interesting story in her mother’s family.”

Even from the beginning, this episode showed signs of the producers’ heavy hand.  The family tree she received at the New York Historical Society has a big question mark next for the maiden name of Nixon’s 2nd great-grandmother Mary M. Nixon.  It’s like a flashing neon sign that screams, “This is where we are headed.”  As it turned out, Joseph Shumway, the genealogist who presented Nixon her family tree, also got Mary Nixon’s death certificate where we discover her birthplace (Missouri), and mother’s maiden name–Martha Curnutt.  Notably, Mary’s father’s name, and, thus presumably her own maiden name, was unknown.  Using a certain genealogical website that sponsors the show (first plug 5 minutes in), Nixon discovered that Martha Curnutt married Noah Casto in Missouri.

(Speaking of that certain genealogy website, my dear reader, do you use it?  And if so, are you aware of the outrage that Ancestry.com has produced by closing down its services like MyCanvas and the Y chromosome and mitochondrial DNA sites?  There is some real (and in my opinion, deserved) fury over the clumsy and unthinking way Ancestry botched the DNA closings.  Given that I have never used any of these services though, I am curious what other people think, especially those who have.  Does this also make you hesitate to try Ancestry’s autosomal test?)

Back to Martha.  Shumway shows Nixon the 1850 Census, the first to list family members instead of just heads of household.  Although there is no Martha Casto, there is a Martha Curnutt who has three children, Sarah (age 6), Noah (age 7), and Mary (age 10), Nixon’s ancestor.  All the children have the surname Curnutt, and Noah Casto is not in the picture.  Seven minutes in, we get our first commercial break and the promise of a shocking secret.

Noah Curnutt served and died in the Civil War.  Nixon went to Washington DC and found his pension record, which Martha, as his mother and therefore survivor, filled out.  The pension file stated that Noah the father died in 1842, when his daughter Mary was only two and his son Noah was not even born.  Which inevitably led to the question of who was Sarah’s father.

Long story short, Noah Casto’s death was not natural, and we find this out, first in a prosecution against Martha and then in a fantastically gossipy newspaper account which contained this description of Noah, “A man whose name our informant had forgotten.”  Martha killed him with an ax to the head while he slept and was found guilty only of manslaughter.  A perusal of a contemporary newspaper showed that Noah was a vile man who abused and possibly raped his wife and threatened to kill her the night she killed him.  This probably explains why she was found guilty of manslaughter rather than murder.  At the time, women were stripped of their rights and privileges once they were married, so even a divorce would not have protected Martha.   Murder, according to WDYTYA, was Martha’s only option, and the jury was sympathetic to an extent.  As it happened, she became only the second female prisoner in the history of the Missouri State Penitentiary, and was the lone female in a prison full of men.

As one would expect of any prison run by private corporations for profit, the prisoners were treated abominably, which was described in a book by a former inmate whose sentence was concurrent with Martha’s.  He wrote about Martha and described the abusive treatment the prison authorities dealt to her and to the child (Sarah) who was born while she was in prison.  Given the timing of Sarah’s birth, it appears that she was indeed not Noah’s daughter, but possibly that of a warden or guard who may have raped Martha.  In fact, Martha’s treatment was so horrible that the petition for her pardon was signed by many people, including prominent politicians.  Indeed, she was pardoned not even two years into her five-year sentence.  It was a pretty awful story, and I have no desire to trigger readers any more than I already may have by recapping it in full.  It certainly hit Nixon pretty hard, although I do wonder from time to time, given that many of these celebrities are actors, are these emotions genuine?  And if so, is it because of story of because of how draining the journey is?  It is one thing to react when a parent or grandparent is involved, but to get so emotional about a distant ancestor who you never knew existed until a few days before–that seems a little different.  Of course, this could also be a natural empathic reaction, and I could be a horrible cynic.

Regardless, the story was pretty powerful, so I will not fault Nixon for her emotion.  Where I believe she is on less solid footing is this supposition, typical of WDYTYA, that Martha helped usher in prison reform (specifically a separate prison for women and the recognition that they too commit crimes).  Two minutes earlier, we were told that so many prominent politicians petitioned the governor for her pardon precisely because they may have been opposed to such reforms.  Additionally, it is hard to see Martha as anything more than a passive figure in whatever prison reform movement may have occurred.  More likely, given the sparseness of the historical record, Martha wanted to move on with her life and get as far removed from that time as possible.

Using FindaGrave.com, a site Ancestry now owns but WDYTYA left unnamed, Nixon discovered Martha’s grave where she was buried with daughter Mary and son-in-law Samuel Nixon.  Nixon visited the graves and left flowers for Martha.  Then she spoke at length about Martha’s strength and she ran up against history and changed it.  Which, honestly seems quite a bit of a stretch, but these are definitely qualities that Cynthia Nixon has in spades.

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Next week, WDYTYA continues its foray into the “gay agenda” with Jesse Tyler Ferguson, the third openly gay celebrity in a row, following Nixon and Jim Parsons.

Misreading Windsor

Ever since the Supreme Court handed down United States v. Windsor last June, law professors and journalists have pondered over what it meant and criticized the majority’s perceived lack of clarity.  There are two major complaints: (1) ambiguous categorization; and (2) whether Windsor‘s holding relied on principles of federalism or Equal Protection.  

The complaint about ambiguous categorization in Windsor is a fair one.  When courts review laws that discriminate against a certain group, courts do so using a certain framework created by the Supreme Court to determine whether those laws violate the Equal Protection Clause of the Constitution’s 14th Amendment.  In most instances, the government–the defending party in such cases is always a governmental body–is given the benefit of the doubt and the law is upheld.  This is called rational basis review.  But when it comes to certain categories of people, the so-called “suspect classes,” the standard the government needs to meet is much higher, and therefore those laws are generally deemed unconstitutional.  This is called “heightened scrutiny.”  The major categorizations for suspect classes are race, gender, and national origin.

Sexual orientation is not one of the suspect classes that I named.  Despite the outcomes in Windsor and its predecessor cases Lawrence v. Texas and Romer v. Evans, the Supreme Court never explicitly said whether sexual orientation is a suspect class.  The judiciary, federal and state, has taken all sorts of approaches absent Supreme Court guidance.  In recent months, some federal courts, most notably the Court of Appeals for the Ninth Circuit, have looked at Windsor and decided that even though the Supreme Court was not explicit, overall jurisprudence indicates that gays and lesbians are indeed a suspect class.  This is the rationale behind the gay juror case that I addressed in my last post.

As I said above, this continued explicit guidance is a fair criticism.  I do not particularly agree with it, because I think the Ninth Circuit read the tea leaves correctly.  Nevertheless, I can understand the frustration and acknowledge its validity.

The other complaint though, I do not understand at all.  It follows as such: the Windsor majority left the judiciary in limbo because the Court did not distinguish whether Windsor was a federalism decision (i.e. whether the federal government unconstitutionally encroached onto states’ rights) or an Equal Protection decision.  This is important because when state bans on same-sex marriage come before courts, those bans will probably fail under an Equal Protection framework but succeed under a federalism one.  On Slate, Dahlia Lithwick and David S. Cohen co-wrote a column suggesting that Windsor is an Equal Protection decision, not because the Supreme Court wrote it that way, but because subsequent state and federal judges have unanimously interpreted it as such.  By Lithwick and Cohen’s count 18 of 18 court decisions (and 32 of 32 judges) have all come to this conclusion.  That unanimity is essential to Lithwick and Cohen’s thesis.  They posit that judges could have interpreted Windsor as a federalism decision, but because they are universally choosing not to do so, eventually nation-wide marriage equality is inevitable.

I don’t disagree with Lithwick and Cohen’s conclusions; Windsor is indeed an Equal Protection decision, and marriage equality is inevitable.  Where I disagree with them–and all the other law professors and journalists who have spilled much ink on this subject–is this misconception that the Windsor majority was unclear.  Windsor is not an Equal Protection decision because subsequent federal judges read it as such; Windsor is an Equal Protection decision because Windsor is an Equal Protection decision.  This is not a tautology; the Court’s methodology is in the text, and it is not hidden.  The reason that 32 of 32 judges have decided the way they did is because they can read.

I believe that the bulk of the Windsor decision comes not from the majority opinion, but from the dissents.  There are two dissents of note in Windsor, one from Chief Justice John Roberts, and the other from Justice Antonin Scalia.  (There was another one from Justice Samuel Alito, which amounts to, “I’m scared of new things because I don’t understand them, and I don’t like them.”  As such this dissent has been forgotten.)  Scalia’s decision is the more famous of the two, because it was written by Justice Scalia.  When he dissents, he fulminates with puffed up, operatic rage.  In his Windsor dissent, Scalia rewrote the majority opinion to apply to state laws.  Perhaps he thought he was being cutting, but to date at least four federal judges who ruled in favor of equality have cited his dissent as a basis for their opinions–classic benchslap.

While Scalia’s opinion is the more significant dissent, Roberts’s opinion is the reason why everyone is confused.  The Roberts dissent tried to limit the scope of Windsor by painting the majority decision as a federalism decision.  Significantly, none of the other dissenting Justices signed on to the Roberts dissent.  Scalia mocked it.  So why have so many law professors, pundits, and journalists wondered whether Windsor is federalism opinion?  Perhaps it is because John Roberts is a very smart man.  Perhaps it is because no one wants to believe that the Chief Justice of the United States deliberately misinterpreted a judicial opinion in a way unworthy of the cheapest political hack.  Perhaps it is because they need something to debate.  I have no idea, but they are wrong.

While at least three or four federal judges have gone toe-to-toe with Scalia, not even one has engaged the Roberts dissent.  Yes, they have heard federalism arguments, and yes, they all held that Windsor is not about federalism, but they have not refuted Roberts’s dissent so much as ignored it.  There is a reason for that, and it is not just that Roberts, whose opinion lacked hysteria, is a far less easy target to mock.

On pages 18 and 19 of the Windsor slip opinion, Justice Anthony Kennedy addresses the question about whether Windsor is a federalism opinion.  (Highlighting is mine, and I removed citations to previous cases, but otherwise kept the citation intact.)

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. ““‘‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’’””

The Federal Government uses this state-defined class for the opposite purpose——to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Kennedy’s language is flowery, as is his wont.  Nevertheless, his meaning is quite clear.  This quoted section is the pivot in the legal reasoning.  Prior to this excerpt, Kennedy wrote in great detail about federalism principles, and how it has historically been the right of the states to define marriage.  Had he stopped there, Windsor would have indeed been a federalism decision.  But in the above excerpt Kennedy writes that it is not principles of federalism that are central to Edie Windsor’s case.  Federalism principles mattered in Windsor only because Congress’ violation of those principles in enacting DOMA signaled a suspicious and insidious ulterior motive.  That something, Kennedy concludes in the next section, was animus toward gays and lesbians, which is unconstitutional under the implied equal protection guarantees of the 5th Amendment.*

Scalia understood all this and would not let it go unchallenged.  He also understood, that if the judicially manufactured equal protection guarantees of the 5th Amendment applies to same-sex couples, then the next logical step is that the actual equal protection guarantees of the 14th Amendment must also apply.  The only possible outcome is for state bans on marriage equality to also fail constitutional scrutiny.  The Windsor majority may not have explicitly stated this, but their inherent message to the federal judiciary was equally loud and clear as Scalia’s overwrought one.  That is why all subsequent decisions have unanimously sided with marriage equality.

Footnotes:  

*  There is no Equal Protection Clause in the 5th Amendment; the Equal Protection Clause is unique to the 14th Amendment.  The 14th Amendment however, applies only to the states and not the federal government, which could have been a source of major embarrassment for a Supreme Court that wanted to combat discrimination.  The most famous use of the manufactured 5th Amendment equal protection guarantees is found in Brown v. Board of Education.  There were actually five cases collectively known as Brown, and one of those cases, Bolling v. Sharpe, came from Washington DC.  As Washington DC is not a state and under federal government control, the 14th Amendment does not apply.  Thus, the Warren Court used the 5th Amendment for the DC case and the 14th Amendment for the state cases .

Marriage Equality Comes To New Jersey

[Editor's Note: This post was written on October 18th, but posted on October 19th.  Every time I say "Today" it refers to the date of writing rather than publication.]

Today the New Jersey Supreme Court handed down an opinion denying a stay in a case called Garden State Equality v. Dow.  This is the first major state high court decision to come down following the US Supreme Court’s Windsor decision.  Not to toot my own horn, but for months I had been telling anyone who would listen exactly how Garden State Equality would be decided and that marriage equality was inevitable.  Even though the case is technically ongoing, today’s decision proves me right.

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To understand Garden State Equality, one must first go back to 2006 and a New Jersey Supreme Court case called Lewis v. Harris, the first time the Court considered marriage equality.  Lewis was both a landmark and a disappointment.  It was a disappointment because the Court, in a 4-3 split, held that although the New Jersey State Constitution required that same-sex couples be treated equal to heterosexual couples, it was the Legislature’s discretion to determine whether that meant marriages or civil unions.  The Legislature opted for the latter.  Yet Lewis was also a landmark because for the first time every Justice on a state high court agreed that same-sex couples deserved equal treatment.  The “dissenters” would have gone further than the majority and mandated full marriage equality.

Lewis, for its flaws, laid the groundwork for future victory.  Civil unions are okay so long as couples are treated equally, but if that were not the case, then the state had to offer marriage.  Almost immediately after Lewis was handed down, LGBT rights groups operating in New Jersey (Garden State Equality, Lambda Legal, etc.) started gathering evidence to prove that civil unions were not equal.  Simultaneously, LGBT organizations lobbied the Legislature to enact a real marriage equality law–first unsuccessfully in the waning days of the Corzine regime and then successfully during this current term, but vetoed by the Governor Chris Christie.   This meant that there were two options left for LGBT rights groups: (1) get enough votes to overturn Christie’s veto (currently ongoing); or (2) convince the New Jersey Supreme Court that civil unions are inherently unequal (or to quote Justice Ruth Bader Ginsburg, “Skim-Milk Marriage“).  Both of those paths however, would take a lot of time and effort, and neither was guaranteed.

And then came Windsor.

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In the near future, I hope to write two posts about the recent gains of the gay rights movement.  The first is about the almost unrealistic nationwide and worldwide progress made in the past year.  The second is specifically about United States v. Windsor, a case that I would argue is not only the most important case in the history of the American LGBT rights movement, but also the most important American civil rights case since Brown v. Board of Education.  The implications of Windsor have only begun to be felt, but its impact has already been tremendous.  The decision in New Jersey today (and others that will follow in state and federal courts over the next couple of years) is solely because of Windsor.  It is not a stretch to say that Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and above all Anthony Kennedy are five of the six people most directly responsible for today’s victory.

The sixth person most directly responsible is Barack Obama.  When Windsor was handed down, Obama ordered all federal agencies to fully comply.  Every same-sex married couple is now treated equally in terms of federal benefits so long as the marriage is valid, i.e., recognized by the state where the marriage took place.  Social security, Medicare, immigration, military and veterans benefits, family medical leave, federal estate tax, joint filing, health insurance for spouses of federal employees–the list of federal benefits goes on and on.

President Obama also made a tremendous and specific impact in New Jersey because he instructed that federal benefits applied only to married couples, not those partnered in civil unions.  Those of us who understood what he was doing rejoiced.  Effectively, he told the courts that in terms of marriage he would not allow or accept “separate but equal.”*  Marriage is marriage and nothing else is adequate for federal purposes.**

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When Garden State Equality came before Judge Mary Jacobson in the New Jersey Superior Court this summer, the legal team for the plaintiffs filed a motion for summary judgment.  Basically, this means that (in a civil trial) one party in the case believes the law and the facts are so overwhelmingly on his/her/their side as to render a trial completely unnecessary.  In Garden State Equality, the plaintiffs argued that the lack of federal benefits to partners in civil unions meant that they would be treated patently unequal and only by offering full marriage equality could New Jersey correct the harm.  Although everyone files motions for summary judgment, granting them, especially in such major cases, is a rarity.  It is practically an invitation for an appellate court to overturn to overturn a trial court, something trial court judges hate.  (Also, judges tend to believe that everyone has a right to argue their day in court.)

Garden State Equality is as close to a perfect case as you can get for granting a motion for summary judgment.  Because of the Lewis demand for equality, the Windsor requirement that the federal government recognize married same-sex couples,*** and the Obama Administration’s refusal to treat marriages and civil unions equally, it was unthinkable that this case could result in anything other than a win for the plaintiffs.  On September 27, 2013, Judge Jacobson granted the motion for summary judgment and held that New Jersey had to offer marriage equality as of October 21.  The Christie Administration asked for a stay in judgment–asked the court to put the decision on hold until the case worked its way through the appellate courts.  Judge Jacobson refused.  Rather than appeal to the next level, the Christie Administration went straight to the top and appealed directly to the State Supreme Court who agreed to hear the case in January.  The Christie Administration also asked the Court for an emergency stay in judgement.  It was not so unusual–or unreasonable–a request.  (For example, in the Prop 8 case, the Court of Appeals put a stay on the trial court’s decision to strike down the law so that it could be litigated up to the US Supreme Court.)

Today the State Supreme Court came down with a ruling, and it was a doozy.  The Court denied the Christie Administration’s request for a stay, which means that same-sex marriages start at 12:01 a.m on October 21 (and there will be City Halls open at 12:01 a.m.)  Frankly, I was a bit surprised; granting a stay is almost routine–again, especially in such a major case with such big implications.  What is more amazing though is that the judicial opinion written by Chief Justice Stuart Rabner, and joined in full by the entire Court, was a decision on the merits of the case, which is almost never done when deciding whether to grant a stay.  Moreover, the Court all but said how it was planning to rule in January: “[T]he State has not shown a reasonable probability that it will succeed on the merits.”  In other words, although the case is not officially over, it’s over.

Everyone knows that the case is over.  Even Chris Christie, rather than fume and rage, has simply said that he disagrees with the decision but has ordered state officials to comply.  The outcome was inevitable.  Windsor made it so, and sooner rather than later all states will have marriage equality.

[Postscript: On Monday October 21, Governor Christie advised the State to withdraw its appeal.  It is theoretically possible but doubtful that a third-party will be allowed to intervene.  Therefore, most likely there will not be an oral argument in January, and undoubtedly marriage equality is now the law of New Jersey from here on out. ]

Footnotes:

* This was not a surprising position from the President.  During the Windsor/Prop 8 arguments, the Justice Department urged the Supreme Court to rule that civil union states must adopt marriage–the so-called “Eight State Solution” (which will dwindle to six as of Monday).  Allegedly, the President was involved in crafting the Eight-State Solution.

** There was an argument put forward that civil unions are a form a marriage and the federal government should recognize them as such.  It’s a rational argument legally but deeply problematic in real world application.  Among those problems is, who would defend civil unions before a court?  A Democrat-led state government won’t do it because they favor marriage equality (the same is true for the vast majority of same-sex couples), and a Republican-led state government won’t do it because that would be a defense of the rights of gays and lesbians.  Although the Christie Administration did argue this position before the New Jersey courts, those courts cannot force the federal government to comply with New Jersey law.  Had the Christie Administration sued the federal government in federal court to demand recognition of civil unions, then I am certain the state case would have been put on hold until the federal case was decided.  It’s a moot point now for New Jersey, but I suspect other courts looking at civil union claims will see that New Jersey’s Supreme Court made the distinction and will subsequently follow.

*** In Windsor, the Supreme Court did not address civil unions because that was not part of the case.  Nevertheless, reading between the lines of the majority opinion, one gets the sense that the majority, if faced with the question, would not find civil unions equal to marriage.