New Hampshire And Same-Sex Marriage: The Times, They Are A Changin’

In the future, when historians of the LGBT rights movement write their books about American same-sex marriage, they will look to March 21, 2012 as the point of no return, the Gettysburg of the war over LGBT rights.  It was the day that the New Hampshire House of Representatives voted against repealing the state’s same-sex marriage law.

Not repealing a law may not seem like an astounding victory, especially when compared to how much effort it took to get the law enacted not quite three years ago—too-close-for-comfort passages in the New Hampshire House and Senate and then the uncertainty over whether (Democratic) Governor John Lynch would even sign it.  Unlike neighboring Vermont when it passed its same-sex marriage law, New Hampshire’s legislature did not have anywhere near enough votes to overcome a veto.  Lynch, despite a professed personal objection to same-sex marriage, relented and signed the bill into law.  On January 1, 2010, New Hampshire began sanctioning same-sex marriages, which replaced an earlier civil unions law.

Also in 2010, the American public overwhelmingly voted Republican in national and state elections, and New Hampshire’s legislature, which was majority Democrat, became overwhelmingly Republican–so much so that Republicans had enough votes to overcome any gubernatorial veto.  All eyes were fixed on New Hampshire’s same-sex marriage law.  Same-sex marriage advocates were particularly worried given that in the past two years voters in Maine and California took away marriage rights from gay and lesbian couples.  Losing New Hampshire would be extremely painful.  Maybe more so.

It is tempting to paint all of New England as bright azure on the political map, but that is not the case.  Political opinion in New England indeed skews Democrat, but New Hampshire is more purple than blue.  Fitting for a state whose motto is “Live Free or Die,” there is a very strong libertarian streak in the New Hampshire ethos.  There is a suspicion of big government (ironic given that the New Hampshire legislature, the General Court, is the second largest in the country behind Congress and the fourth largest English-speaking legislature in the world) but there is also a “live and let live” attitude.  In other words, New Hampshire libertarians are closer to true libertarianism rather than Ron Paul acolytes.  Paul is less a libertarian than an isolationist, social conservative who hates the Drug War and the Federal Reserve.  New Hampshire is many things, but Mississippi or Texas it is not.

As expected, there were indeed efforts in New Hampshire to strip same-sex couples of the right to marry.  At first the General Court did not want to take it up, and for a year they successfully avoided it.  But pressure from within (an effort spearheaded by Representative David Bates) and without (groups such as the National Organization for Marriage) eventually brought the issue to a boil.  Governor Lynch vowed to veto any attempt to repeal the same-sex marriage law.  Although the Republicans theoretically hold enough votes to override a veto, a good number of legislators from the very substantial libertarian wing of the party said they would vote against an override–enough of them stood up that proponents of repeal were positive they would not have enough votes to overcome the veto.

Rep. David Bates thought he found a solution, abolish same-sex marriage and in its place reinstate the old civil unions law.  All same-sex marriages would retroactively become civil unions (unlike in California where the marriages that took place prior to Prop 8 remained marriages), which in Bates’s mind, and the mind of some other legislators, was the same thing except for the word.  Abolishing all same-sex couples’ protection was so unlikely that even the bigots at NOM and the state’s branch of the Catholic Church backed the civil unions bill–something they never do.  To Bates and his allies putting forth civil unions was the only way to get the libertarians on his side.  There was some blowback; one Republican legislator, Seth Cohn, was so angry at the attempt to repeal same-sex marriage, that he proposed an amendment to the bill that would ban marriage between left-handed people.  I am not privy to the internal workings of the New Hampshire legislature or pro-marriage forces in New England, but my sense was that the general feeling was that passage of the repeal by the House was inevitable and the real battle would be to garner enough support to prevent an override of the veto–or in the longer term, if the override attempt failed this year, to ensure that the General Court would not be able to pass the bill under a future Republican governor who would sign it.

On March 21, 2012 though the House essentially ended the debate for good.  Not only did the repeal attempt fail, it failed by a substantial margin, 211 to 116.  There are only 103 Democrats in the House.  118 Republicans voted not to repeal the law.  In practical terms that means more Republicans voted against the repeal than for it.  When the law initially passed in 2009, only seven House Republicans voted in favor.

It is very easy for the LGBT community to tar Republicans as homophobic bigots, and this is in large part because the national Republican party does this to itself.  The GOP gladly aligned itself with the so-called Moral Majority in the 1970’s and 80’s, and today any person who seriously wishes to be considered for the Republican Presidential nomination must burnish impressive homophobic credentials.  Why else could Rick Santorum, who offers nothing but a vision for theocracy, do so well?  Mitt Romney’s SuperPAC donated $10,000 to NOM for its efforts to repeal Prop 8.  The homophobia has gotten worse since the Tea Party took over and the party has been steadily driving out anyone who is not ideologically “pure,” especially on matters of abortion and same-sex marriage (remember Dede Scozzafava?)  It’s the opposite side of the coin from the 1960’s and 70’s when the Southern Democrats, who were once part of the New Deal coalition, became Republicans following the passage of civil rights laws and the end of Jim Crow.  They have now driven out liberal and moderate Republicans with their intransigence.

That is why the victory in New Hampshire was so stunning.  It was Republicans who made a gay rights victory possible.  Not just a handful like in Washington, Maryland, or New York.  A majority of voting Republicans–well over 100–turned their backs on the homophobia in their party.  This is the first real indication that LGBT rights is transcending political party and becoming solely a matter of fundamental fairness and human dignity.

Again, New Hampshire is not Mississippi, and I do not expect to see a same-sex marriage bill come out of Jackson any time soon (let alone one with Republican votes), but this is the point of no return.  Some Republicans have started to realize that they can no longer stand athwart history and yell, “Stop.”  Because the Republicans now see their gay siblings, friends, cousins, parents, neighbors, children, grandchildren, coworkers, nieces, and nephews, they are finally able to start looking at the rest of us and see us as humans rather than sexual organs.  Because of that, they would not–could not–take rights away from us.

This is the momentum the LGBT rights movement needed.  There is so much work to be done and very quickly in time for November.  New Hampshire Republicans proved that the work is not in vain.

Rita Wilson, Who Do You Think You Are?

When the guest list was announced, I raised an eyebrow in curiosity when I saw that Rita Wilson was one of the celebrity guests.  I know that Wilson is an actress and has appeared on stage and screen, but because of her marriage to Tom Hanks, she is eternally overshadowed by her husband’s fame.  The conceit of Who Do You Think You Are is that the guests are “some of America’s most beloved celebrities,” and I am not sure that Rita Wilson really qualifies for that title.

Having said that, this past week I was extremely excited about her episode.  The promotional teaser looked amazing, and Wilson, being of Greek/Ottoman/Bulgarian heritage (her birth name is Margarita Ibrahimoff), brings a new geographic sphere to the show.  This episode was unique in the Who Do You Think You Are canon, because the search was entirely unlike any other in the show’s run.  I have written before about the two types of episodes in this series: the general “trace the family tree” episode and the specific “follow one ancestor” episode.  Both types of episodes have their benefits, but the common theme that both share is that the celebrity knows almost nothing about that family or the individual in question.  Wilson however knew the man whose history she was researching; it was her beloved and recently-deceased father, Allan.  Because she knew him well and loved him so much, each fact she learned about him was not about discovering a picture of him but rather reconciling the one she already had with facts he never told her.  Is it any wonder that she was emotional throughout her entire journey?*

Allan Wilson was born Hassan Halilov Ibrahimoff in Oraion, Xanthi, Greece.  Wilson found the name of his birth town on her parents’ marriage certificate which she located online.  (This was this week’s Ancestry plug.  One might ask why Wilson’s mother didn’t have it, but I suspect it had more to do with getting the plug in as all the research in this week’s episode is outside the scope of Ancestry’s holdings.)  I looked for the certificate, but I could not find it online; it’s a bait and switch that Ancestry did with the Martin Sheen episode too.  I did find the information from Rita Wilson’s birth certificate though which lists her first name as “Margarit.”

When Hassan Halilov was born, Oraio was still a part of the Ottoman Empire, and, as you can probably tell from the name, the ibrahimoffs were a Muslim family–another first for the show.  In Oraio that Wilson began her journey.  A guide took her to the house where her father was born, a home that now used as a storage house, and is otherwise vacant.  Wilson wanted to know why her father moved to Bulgaria, and her guide introduced her to her father’s cousins.  Truth be told, I could not understand what exactly they were trying to tell Wilson; it seemed a bit contradictory.  The cousins did show her a picture of her grandfather Halil Ibrahimoff, and told her that he was a funny man.  Wilson learned that her grandfather moved his family to Smolyan, Bulgaria, a town near the Greek border.

In Smolyan, Wilson learned from an archivist that the Ibrahimoff family moved to Smolyan somewhere between 1927 and 1934 (when Wilson’s father was between 7 and 14).  Wilson also learned that her father was drafted into the Bulgarian artillery in 1941 at the age of 20 because Xanthi, the province where he was born, was, in 1941, a part of Bulgaria (all persons born in Xanthi were retroactively considered Bulgarian, including Wilson’s father.)  It also meant that he fought for the Axis alongside the Nazis and Italian Fascist regime.  Wilson’s father however, was dismissed shortly into his service and sentenced to over three-and-a-half years in prison because of petty theft; he took 28 siphon bottles and five levs, an incredibly small sum. The army wanted to make an example by punishing the petty crimes disproportionately harsh.  Wilson’s father had told Wilson that he had been imprisoned in a labor camp when he was young, and Wilson wondered if labor camp was a euphemism for prison.

Wilson’s father was paroled after just over two years and he returned to Smolyan briefly but then moved out to Plodiv, and it was there that Wilson got the shock of her life–her father had been married before and had a child.  The marriage, to a woman named Alice Markayan, took place on October 26, 1945, 11 years to the day before Wilson’s birth.  The son of that marriage, Emil Hassanov was born on December 26, 1945.  Three days later Alice died.  Four months after that, Emil followed.

Is it any wonder that Allan Wilson never spoke about his past?  There was already so much pain, and more to come.  I imagine Bulgaria was a nightmare from which he could not wake up.  But 66 years after Emil died, his younger half-sister finally discovers his existence.  I was reminded of something similar in my family.  My great-grandfather immigrated to the United States in 1911.  He married my great-grandmother in 1919 and their first child was born nine months afterwards.  When I found my great-grandfather’s World War I draft card, I got a similar shock to what Wilson found.  My great-grandfather was asked is he had any dependents, and he answered that he had an 8-year-old child in Russia.  This is the only time I, my mother, or my uncles ever heard about this child, and he never mentioned the child again on any records.  I think this is something that he also kept from his own children.  It is possible that the draft card was mistaken, but between the Nazis and an archives fire in Ukraine, I am not sure I will know the truth.

There was a five year gap between the death of Alice and Emil and Wilson’s father’s marriage to her mother Dorothy.  Wilson traveled to Sofia where she discovered that her father told her the truth about the labor camp, a Soviet-style gulag with harsh conditions and the constant specter of murder.  Wilson was shown her father’s secret file, something that no doubt would only have been possible following the fall of the Bulgarian Communist regime.  Like in other Communist countries, most notably East Germany, the authorities got neighbors and friends to spy on suspect targets, and Wilson’s father was one of those suspected.  He was arrested for trying to flee to Turkey, declared a traitor, and sentenced to two different mining camps.

Although the punishment for trying to escape was death, Wilson’s father did manage to flee in the night, and on May 4, 1949, he landed in the United States.  In 1973, 26 years after the escape, he was declared an enemy of the state.  Had he ever returned to Bulgaria, he would have been rearrested.

After learning the truth about her father’s life, Wilson gets one final shock, her father’s older half-brother Fairhat was still alive (at age 96) and residing in Smolyan.  The family reunion between Wilson and her uncle was a tearjerker, for them and for me.  It turned out that Fairhat was sent to the same labor camp as his brother, but Fairhat could not escape because he had a wife and two children.  After Wilson’s father escaped, Fairhat was interrogated and beaten.  He was however, eventually released.

In 1950, Hassan Halilov sent Fairhat and their father a beautiful letter from the United States about his progress, how happy he was there, and his hope for the future.  This appears to be the last communication that he ever had with his family, and Fairhat kept the letter in case one of his brother’s children even found him.  Her brother was flown out to Bulgaria to meet his uncle and the show ended with the two Wilson siblings in tears to the (incredibly out of place) stains of “Leavin’ on a Jet Plane” as sung by Rita Wilson.


What an episode!  It was almost something out of fiction.  After a patchy start, the show has finally found its ground, and the last two weeks demonstrated spectacular quality.  I hope that Edie Falco’s story is equally as interesting.

There have been some complaints about how the celebrities have stopped pretending to do the work, and that is true to an extent, but that is not a fair criticism of Rita Wilson’s episode.  It all happened in Greece and Bulgaria and in languages that Wilson did not speak.  Hiring experts is the only way that she could have learned about her father’s early life.

I have yet to see the new PBS genealogy show, the newest Henry Louis Gates project, but I will get on that as soon as I can.  I’m curious to see how the two compare.  I cannot imagine that Skip Gates’s show pack’s anywhere near the emotional punch of tonight’s Who Do You Think You Are, but I hope to be mistaken.


* This episode may be the likeliest to make me cry.  Part of that is the emotional content, but in large part it is because of how much it parallels my own family research.  I mention above about my great-grandfather’s possible child, but there is another story that struck me.  In a deleted scene available on the website, Wilson discovers the Oraion birth registry (of males) which has the births of her father, his older brothers (including Fairhat, who we meet during the course of the episode) and her great-grandfather.  Missing from the registry is her grandfather Halil, although the researcher who showed Wilson the book identified someone he thought was Halil, an entry that is listed as “the one whose finger is cut,” meaning he was probably missing a finger.  My great-great-grandfather Abraham was missing his right index finger like Halil.  I never realized his finger was missing until I stared a few old pictures of him for very long periods of time.  I wonder if the missing finger was accidental or deliberate.  In Czarist Russia, Jews who were not allowed to live outside the Pale of Settlement were nevertheless conscripted into the army and navy, which was a form of cultural murder and worse, a very real possibility of actual death.  To avoid that fate, there arose men called cripplers, hired thugs who mutilated Jewish boys to ensure that they would be unfit to serve.  I wonder if that was what happened to Abraham.

Helen Hunt, Who Do You Think You Are?

After the Jerome Bettis disaster from two weeks ago,* I had nearly given up on this show.  I was prepared to watch only the bootlegged UK and Australian episodes on YouTube.  I’m glad I didn’t.  If the last episode was the worst in the show’s run, this week’s episode starring Helen Hunt is one of the best.  It was so good that even the commercial breaks and two (two!) Ancestry plugs did not feel like such a big deal.

When I first saw that Helen Hunt was going to be on Who Do You Think You Are, my first thought was, “What ever happened to her?”  After the end of Mad About You and her Oscar for As Good As It Gets, she kind of vanished from the public eye.  (Fun fact:  Executive Producer Lisa Kudrow’s hit show Friends was a quasi-spin-off of Mad About You.  On Friends, Kudrow’s ditzy Phoebe Buffay had a twin sister Ursula who was also played by Kudrow.  Ursula first appeared on Mad About You.)  Her episode however, knocked my socks off.

Before I delve into the content of the episode, it is important to explain why I liked this episode so much.  The reason this episode was so good is that it focused on the history rather than on Helen Hunt.  In most episodes this season, we got one, maybe two, historical interludes to give us a sense of time and place for the story.  In this episode we got six, which is more like a British episode than an American one.  It completely makes the difference, and the story becomes far more compelling.

The episode also avoided making facile associations between Hunt and her ancestors, which is a pleasant change from most of this season.  In previous episodes, the celebrity spoke about an aspect of his or her life and sure enough, the ancestor in question had that quality (although it was often a stretch.)  This week however we were not subjected to (for example) Helen Hunt talking about how important feminism was to her prior to her journey and then discovering that her ancestor was an early feminist.  Instead, the revelations happen organically, and we feel like we are learning about the stories of interesting people from the past rather than HELEN HUNT’S ANCESTORS.

Finally, everything was documented through pictures, censuses, vital records, directories, election rolls, and newspaper articles–all very important tools in the genealogist’s toolkit.  Mercifully there was absence of speculation about what their lives must have been like or what their personalities probably were by both Hunt and the historians.  No gimmicks, no DNA tests, not secondhand recollections from decades later.  Just the facts.  The facts really do speak for themselves.

The episode started in Los Angeles with Hunt and her father.  Hunt’s paternal grandmother, Helen Roberts Hunt, was killed by a drunk driver when Hunt’s father was a little boy, and so he knew very little.  Helen Roberts was of German-Jewish descent (Yekkes), and her mother was named Florence Roberts, although the family name was originally Rothenberg.  Hunt knew little beyond that.

From a personal point of view, learning about a German-Jewish family was a novel experience.  My family is entirely made up of Eastern European Jews who arrived during the migration wave that spanned from around 1880 through 1920.  In contrast, German Jews such as Hunt’s family immigrated significantly earlier (Hunt’s great-great-grandfather William Scholle immigrated from Bavaria to New York in 1845).  By the time the Eastern European Jews started arriving, the German Jews already had deep roots, and quite a few of them were very wealthy–perhaps most famously the Gratz family.

Having said that, the importance of the German Jews in the United States has been largely overlooked.  So much of modern American culture and the Jews who helped shape it was rooted in the Eastern Europe migration, it is easy to forget that Jews had a presence in the United States from the very beginnings of the colonial era (especially the Sephardic Jews).  It is therefore good to see stories about Jewish families from places other than Eastern Europe.  It gives a tiny bit more diversity to a show that use a bit more diversifying.

Hunt learned that her great-grandmother lived in a hotel in Pasadena, and that there was some money in the family.  By looking at the 1900 Census, she learned that  her great-grandmother Florence and her husband Gustav lived in the Upper West Side of New York City with their children, including Helen.  They also had four servants who lived with them (none with last names, apparently).  Gustave died in 1900, and Florence moved her children out to California, the state of her birth.  In the 1910 Census, the Rothenberg family is living in a hotel in Pasadena, although without servants.  By 1920, Florence changed her name to Roberts.

If I had one quibble with this episode, this is it.  The episode implies that Jews who changed their surnames did so because of anti-Semitism in the United States which predated but was inflamed by a quota system that limited the number of immigrants, particularly those from Southern and Eastern Europe.  Yes, many Jews did change their name in the attempt to avoid anti-Semitism.  But that was not the only reason.  A lot of Jews wanted to fit in with American society so they adopted less “ethnic” names for more English sounding ones.  Nor was this a specifically Jewish phenomenon (remember Martin Sheen?).  In my family I can think of quite a few instances where people changed their first or last names (or both) to fit in, not because they were afraid of anti-Semitism, but because they wanted to be more American.  I bet you a know of a few Jews who changed their names for reasons other than anti-Semitism too.  Maybe Nathan BirnbaumMelvin Kaminsky?  How about Issur Danielovitch?

Racial and religious persecution is a fall back option for Who Do You Think You Are to explain things when there is a lack of evidence.  It’s incredibly lazy and misleading.  Maybe Florence Rothenberg became Florence Roberts because of anti-Semitism, but it’s also likely that she (or one of her sons) changed her last name because she wanted to fit in with her peers in upper-class Pasadena.

From Florence’s 1949 death certificate, Hunt discovered that Florence’s father was named William Scholle (formerly Wolf Scholy of Bavaria).  Scholle immigrated to New York City and worked with his brother Abraham, but during the California Gold Rush, he moved out west to San Francisco.  Still in business with Abraham and their younger brother Jacob, William Scholle became very wealthy (apparently his personal wealth was somewhere between 3 and 10 million dollars); by 1870 he and his family had three live-in servants.  Scholle rubbed elbows with Levi Strauss (another quibble, given the significance of Levi Strauss, and given that his name appeared multiple times in Scholle’s story, one would think that at least one historian would have explained who Strauss was), and they were both a part of a consortium that bought the Nevada National Bank which then merged with Wells Fargo.  Given the financial crisis of 2008 and how much I hate Wells Fargo for unrelated reasons, I wonder if I should be impressed or carry a grudge against Scholle and company.  Therefore, before she became the Little Old Lady from Pasadena, Florence was a part of the San Francisco elite.


Closing the book on the Scholle/Rothenberg/Roberts family, Hunt turned her attention to her father’s paternal great-grandfather George Hunt who was from Portland, Maine.  George was a businessman who imported sugar from the Caribbean in exchange for wood from Maine forests.  Like Scholle, George Hunt too was very successful, but the real story came from his 1896 obituary which introduced Helen Hunt to her great-great-grandmother, George’s wife Augusta Merrill Barstow Hunt.

Augusta was a leader of her community, and deeply involved with the Women’s Christian Temperance Union.  Hearing that Augusta was in the WCTU made Hunt uneasy but immediately I thought, “Augusta was an early feminist and probably a suffragette.”  Prior to the passage of the 19th Amendment in 1920, which ensured women the right to vote, women were nevertheless very active in social and civil rights causes, including abolitionism, temperance, the settlement house movement, and pacifism.  In their minds, and for good reason, temperance was a women’s rights movement as alcohol often led to the brutal treatment of women and children and the decay of the family.  (There was a dark side to temperance; the movement was bound up in anti-immigrant sentiment, particularly those from Ireland and Germany.  The WCTU itself was very much a club for Protestant women, and no doubt some of its most prominent members had lineages that the Daughters of the American Revolution would envy.)

Hunt, not knowing anything about temperance except for the circus act that was Carrie Nation and the failed experiment of Prohibition was a little embarrassed, although a WCTU historian explained the truth to her, and introduced her to exactly how important Augusta was to both temperance and to the suffrage movement in Maine.  (Helen Hunt noted the bitter irony that Augusta’s granddaughter-in-law would eventually be killed by a drunk driver.)

As it turned out, Augusta was instrumental in getting a suffrage law on the Maine ballot for a referendum in 1917, which failed miserably before an all-male voting populace.  (I was reminded about how Maine voters also rejected same-sex marriage in a referendum.)  Despite that failure, Augusta was behind every pro-woman reform of her day, including day care and female prison matrons.

In the end Augusta’s work was not in vain.  She lived to see the passage of the 19th Amendment, and according to a profile of her in a newspaper from Portland, she was given the honor of being the first woman to cast a ballot in a Maine election.  It was both a stunning and moving find, and Helen Hunt seemed overwhelmed by it.

At the end of the episode, Hunt visited the grave of George and Augusta Hunt and took a charcoal rubbing of their monument for her daughter.  Charcoal rubbing is somewhat controversial and there are people who claim it damages the headstone/monument, although I confess that I made one for an ancestor whose grave was otherwise impossible to read.  It was however, an extremely poignant moment, and wisely, that was where the show ended.

Next week, Rita Wilson.


As bad as this episode was, I have to shamefacedly offer a correction.  A few days after the episode aired, I found a newspaper article that indicated that Bettis’s ancestor lost his court case on appeal, and I blasted the show in a separate blog post for dishonesty.  It turns out, I was wrong in the chronology, and Bettis’s ancestor did win his court case with as far as I can tell no appeal from the railroad defendant.  I took down the blog post, but I want to set the record straight.  Mea culpa.  I’m sorry.  It does excuse how bad the Bettis episode was, but if I demand honesty, I should be honest too.

Lawrence Revisited

A tempest in a teapot has emerged in legal circles over the past week.  Dale Carpenter, a libertarian/conservative, gay law professor at the University of Minnesota Law School, published his new book, Flagrant Conduct,* which details the story behind the seminal gay rights case Lawrence v. TexasLawrence is a case which I have many reservations about, but I have been waiting for a book like this since the Justices announced their decision in 2003, and I cannot wait to read it.  I also have reservations about Carpenter, but I suppose it could only be he who wrote the book, primarily because he eviscerated the gay rights movement’s most cherished myth about the case–John Geddes Lawrence and Tyron Gardner, the interracial couple who were arrested for having sex in their home, were (1) not a couple, and (2) not having sex when they were arrested.

Carpenter’s book received surprisingly little attention on the gay blogs until a bombshell hit; Dahlia Lithwick of Slate wrote a very positive review of the book for The New Yorker where she discussed at length the truth behind Lawrence.  Although Lithwick insinuated that the lawyers behind Lawrence were somewhat disingenuous about presenting the facts, she (and Carpenter too) was clear that there was nothing dishonest in the case made to the Supreme Court.

The first angry response came from Kevin Cathcart, the Executive Director of Lambda Legal, and a man deeply involved with the Lawrence strategy.  His defense however, was very weak tea; it amounts to him claiming that the litigation team never misrepresented the facts–a completely different charge from the one Lithwick (and Carpenter) supposedly leveled at Lambda and Co.  It’s not a fair (or good) rebuttal, and I am not alone in noticing that.  Carpenter did his research, and Cathcart does not rebut anything factual.

Others have also jumped into the fray.  Ari Ezra Waldman,’s resident law professor, took a macro view.  Siding with Cathcart, Waldman wrote that Lithwick did not understand “what gay rights are really all about.” His argument is that Lambda Legal and company simply took a case that could bring them victory and crafted the appropriate litigation to put the best facts forward (as any good lawyer should).  Waldman is a bit in love with his own writing, and it is sometimes difficult to get his point, but his (stripped down) argument is that it wasn’t so much Lawrence and Gardner who were the focus of the case, but rather gay people as a whole.  In this he is correct.**  Where Waldman is incorrect is in claiming that Lithwick misunderstood this, which is not true.  A close reading of her New Yorker review indicates that she very much gets this.  For his part, Waldman fails to comprehend that Lithwick is not evaluating legal strategy; she is reviewing a book about the Lawrence litigation.

In contrast, on Salon, Linda Hirshman takes a micro approach and focuses completely on Lawrence and Gardner in a blog post provocatively titled “Lowlifes deserve justice too.”  Hirshman argues that it is rare for the perfect plaintiff to appear, and almost never in a criminal case, which Lawrence was.  This is something Lithwick discussed in her review.  Because of issues such as child custody and employment, gay couples who would otherwise be “perfect plaintiffs” would not (and indeed could not) get involved.  Hirshman, like Waldman, is correct in the points she makes, but she completely misses the point of the entire controversy.  The issue is not whether Lawrence and Gardner were the best of all possible plaintiffs (clearly they were), but whether their lawyers represented them honestly.

I cannot comment on Carpenter’s book, not having read it, but I do feel secure when I say that everyone from Lithwick onward has completely missed the most important point about Lawrence.  It had nothing to do with John Lawrence, Tyron Gardner, or their lawyers and everything to do with the nine Justices of the Supreme Court.

The implication behind the debate between Lithwick and her defenders is that the Justices cared about the facts of the case.  They did not.  Nor does this debate give the Justices enough credit.  Each one of them was at one time a lawyer, and all of them had served as judges for years.  They all understood how lawyers write briefs.  Moreover, whatever bad facts the attorneys for Lawrence and Gardner wrote in the briefs, the Justices had seen much worse.  Waldman was right when he wrote that all gay people were on trial, but he failed to take that idea to its logical conclusion; the Justices also understood that all gay people were on trial.

Courts are law-making bodies.  We hear foolish arguments about courts as “super legislatures,” but the truth is that courts, in addition to being interpreters of the law, are a check on the tyranny of the majority.  That is why federal judges are given lifetime tenure and their pay cannot be decreased–so that they are not pressured when they have to make tough decisions.  People tend to forget–or ignore–that court-made law is also law, and it always has been.  It has been this way since Marbury v. Madison and probably even earlier.

In 1986, at the height of the AIDS crisis, a majority of the Supreme Court in Bowers v. Hardwick pushed back on the Warren Court and sexual revolutions.  Perhaps allowing a distaste for homosexuality to get in the way of what was correct both morally and legally, 5 Justices found no constitutional right to adult, consensual, homosexual sex even in the privacy of one’s bedroom.  In the decade following Bowers, six of the nine Justices stepped down and were replaced.  Some of those replacements were more inclined to be friendly toward gays and lesbians both personally and in their jurisprudence.  Concurrently, a massive education campaign began, which penetrated even into the halls of the Supreme Court.  One of the Justices in the Bowers majority (Lewis Powell, who had stepped down in 1987) publicly admitted that he made a mistake, while another (Sandra Day O’Connor, who remained on the Court through Lawrence) privately felt the same.

In 1996, the new Supreme Court got its first chance to signal that it was ready to overturn Bowers in a case called Romer v. Evans.  Although Romer did not directly overrule Bowers, it was practically a plea to gay rights advocates to bring a case that would allow the Court to do so.  One Justice, Antonin Scalia, was especially annoyed by this, and if you thought his dissent in Lawrence was scathing, you haven’t read his Romer opinion.

With Lawrence, the Supreme Court got the case it was looking for, and (like Congress in 2010 with Don’t Ask Don’t Tell) a majority overturned the earlier law.  Four of the five justices in the majority opinion joined the Court after Bowers, including the opinion’s author Justice Anthony Kennedy.  The fifth Justice, John Paul Stevens, had been in the Bowers minority.  O’Connor, not wanting to lose face by publicly admitting she was wrong, wrote a concurrence that actually went beyond the majority in terms of protection for gays and lesbians, but did so from a different legal avenue.  In other words, the majority opinion said there is a fundamental right to private, adult, consensual homosexual sex; O’Connor said, there is no such right, but because straight people would not be arrested under such law, it unfairly targets gay people and for that reason is unconstitutional.  Both the Lawrence majority and O’Connor’s concurrence were about gay people as a whole.

When a case gets to the Supreme Court, it is no longer about the parties involved; it is about the principles.  That is why in the end, Lawrence and Gardner themselves made very little difference.  That is also why gay rights advocates were, and to some extent still are, so nervous about Perry v. Brown, the Prop 8 case.  The question is not whether the Justices will be swayed by the stories of four upstanding plaintiffs; the question is whether the Justices feel that now is the right time to start moving ahead with same-sex marriage.

* There are three types of books about Supreme Court cases.  The first is a book about a specific case, how it came to be and how it came before the Supreme Court.  Call this the Gideon’s Trumpet paradigm after Anthony Lewis’s famous book about Gideon v. Wainwright.  This is the kind of book that Flagrant Conduct is.  The second type of book is a history of a movement, which, for obvious reasons, is far longer and much more dense.  The most famous example of this kind of book is Richard Kluger’s Simple Justice, which details the Civil Rights Movement’s legal strategy culminating in Brown v. Board of Education, although Brown is neither the beginning nor the end of the book.  For the gay rights movement, there is no Simple Justice equivalent, but we are not yet at the point where such a book can or should be written.  Finally there are the biographies of the Justices themselves, almost always written after their deaths and after their papers have been opened to researchers.  Only one of the Justices who heard Lawrence has died, and while three have retired, no books are forthcoming in the foreseeable future.

** I make a similar point in another blog post that is currently in the editing process.  The Lithwick affair cropped up while I was writing that post, and I felt like I needed to write about the kerfuffle before I could complete the post I had been writing.

Jerome Bettis, Who Do You Think You Are?

This third season of Who Do You Think You Are has not been doing particularly well in the ratings.  Because of this, and because of a slower subscriber growth expectation,’s stock has slumped.  For those reasons, this will probably be the last season of Who Do You Think You Are.  If the rest of the season is like this week’s episode, all I can say is “good riddance.”

At the outset, let me say that I have nothing against Jerome Bettis.  Not being a fan of the NFL, I had actually never heard of him until this season’s celebrities were announced.  I take great pains to point out that this review is not personal against Bettis, because in the past I have gotten personal before, and got a very nasty response from a reader.

This week’s episode was awful, maybe the worst of the show’s entire run.  In the previous two seasons, there have been definite valleys among the peaks, but overall the series was very strong.  This season not so much.  The show began with an awful episode (Martin Sheen), and the next three, although better in quality, also had major flaws.  Who Do You Think You Are, which has always been a vehicle for Ancestry, is abandoned storytelling for the sake of sales.  It’s Ancestry’s right to do so, but it certainly affects my enjoyment of the program.

The problem with tonight’s episode was that it reinforced almost all of the show’s other flaws: the Ancestry plugs, the unsubtle hints about what is to come, the importance of story at the price of history, too many commercials and too much filler, and the baseless assumptions made by the celebrities to whitewash ancestors with less than stellar qualities.  In the world of Who Do You Think You Are, only owning slaves makes you less than heroic; lesser sins however, do not disqualify shady figures from Ancestry canonization.  Over and over again we learn about ancestors who abandon their families, and over and over again it is excused away.  Only Kim Cattrall was honest enough to call out her grandfather as a reprobate, but that episode was filmed for the British series.


Jerome Bettis knew about his father’s family (his father died a few years prior), but knew virtually nothing about his mother’s family, the Bougards.  He began his journey in Detroit where he spoke to his mother Gladys and her brother Abram (“Butch”).  Bettis learned that his grandfather Abram Bougard was the son of Burnett and Ruby Bougard, and that Burnett was a troublemaker who disappeared when Abram the elder was all of six-years-old.  Abram never spoke about his father.

Using Ancestry (PLUG!), Bettis found Burnett’s death certificate, learned that he died in Paducah, Kentucky and found out that Burnett’s father was named Abe.  Coincidentally, I looked up on the certificate online, and found out Burnett’s mother’s maiden name too (Amanda Gee), but she was never mentioned on the show, ignored to the point that her name was not even shown on Bettis’s family tree.

In Paducah, Bettis learned that there was a divorce between Burnett and Ruby, which seemed to relieve him and would later relieve his mother and uncle.  I’m not exactly sure why; if anything the divorce record (between “Ruby Beaurgard” and “Burnett Beargard”) indicates exactly what a heel Burnett was.  The reason for the divorce was abandonment.  What I wondered, and what was never addressed is whether Burnett was even at his divorce.  After a certain period of time, an abandoned spouse can simply go into court and just get the divorce.  Given that Ruby brought witnesses with her to affirm that she was abandoned (one witness testified that Burnett told Ruby he was leaving and she could keep the house), I am pretty sure that is what happened.  Ruby was able to divorce Burnett because he up and left; Burnett did not divorce her.

But, because this is American television, Burnett had to be redeemed.  Redemption came in a newspaper article from 1897 which detailed how Burnett pressed charged against his supervisor for an assault and battery that took place at his job.  Because Burnett was a black man and his boss was white, bringing this charge in the Jim Crow South (where lynching was the norm) was extremely dangerous. Even the newspaper reflected this climate of hatred; the 21-year-old Burnett pejoratively as both “boy” and as a “darkey.”  Unsurprisingly, the charges were dismissed.

Then we got a narration about Reconstruction.  As I said in my last recap, slavery is America’s original sin.  The oppression of Jim Crow is almost its equal, and Kentucky has its own pernicious, racist legacy from which it cannot escape.  But Kentucky was different from most of the South, because Kentucky never left the United States.  Four slave states–Kentucky, Missouri, Maryland, and Delaware–stayed in the Union and did not defect during the Civil War.  Kentucky slave owners kept their slaves throughout the War, the Emancipation Proclamation never applied to Kentucky, and because Kentucky was in the Union, it was never militarily occupied during Reconstruction like former Confederate states were.  Although the narration did not explicitly say that Kentucky was occupied, it was implied.  Since Bettis’s entire story happened in Kentucky, it would have been nice if someone had made this distinction.  If anything, blacks in Kentucky suffered more during Reconstruction than their counterparts in the former Confederate states because there was no Union army to protect them.

Bettis, seeing this court case, decides that Burnett is brave and harps on and on about his bravery.  Here’s the problem for me though  Bettis knows exactly two things about his great-grandfather’s life: (1) he abandoned his wife and children; and (2) he pressed charges against his employer, and those charges were dismissed.  I can only speak for myself, but in my eyes Fact #2 does not negate Fact #1.  Burnett was not brave; he was irresponsible.


Like with the Brassfields last week, spelling is an issue again here; we see Bougard, Bogard, Beaugard, Beauregard, and a few other variations.  One of the historians attributes it to the racism of the census takers.  No doubt there is truth to that, but spelling on the federal census, and on pretty much every legal document before Social Security, is notoriously bad regardless of race.  No one should watch this episode and think that just because your family was white your family records are free of spelling errors or that your family name is spelled wrong just because your family was black.

Who Do You Think You Are is less a show about genealogy and more of a family history scavenger hunt.  Find a clue in Place A and you are sent to Place B.  Find a clue in Place B and you are sent to Place C.  Bettis learned in Paducah that his great-great-grandfather Abe Bougard filed a lawsuit against the Illinois Central Railroad for $2,000 for injuries he sustained while walking on a track.  Wanting to know more about this, Abe went to Frankfort, Kentucky to learn about this lawsuit.

In Frankfort, Bettis was shown the documents related to the case.  First he learned that Illinois Central did not like to lose cases, and with its team of lawyers, fought cases all the way to the Supreme Court.  Then he discovered that Abe’s lawyers were famous for representing the poor against big companies and probably did so pro bono (or perhaps for a percentage of the settlement, which is how plaintiffs’ attorneys make their money).  Finally he saw that Abe could not sign his name; there was only an “x” around which said “his mark”.  Bettis seemed so upset by that, and interpreted it as a sign that Abe was probably born a slave.  It is a fair assumption (and, as it turned out, correct), but illiteracy was common at that time period regardless of race.  For example, my 3rd great-grandfather died without a will, and his wife Mina, my 3rd great-grandmother, filed papers of administration.  Mina, an Eastern European immigrant, also could not sign her name, and there was an “x” with “her mark” around it in place of a signature.  There is plenty to be sad about in genealogy, but in my estimation illiteracy ranks very low on that list.

The show built up this court case as a battle between the good guy against the evil corporation, which I have reservations about given how only limited information about the case was revealed.  The librarian who showed Bettis the records invoked the specter of racism; Abe’s case would have been heard by an all-white jury of landowning men.  And just as he was about to read aloud the verdict, the show cut to commercials for what seemed to be the twentieth time.  It was a cheap move, and I knew right then and there that Abe won his case.  But the show’s director and editor should be ashamed of themselves.  Cutting to commercials at that moment was a soap opera-like way to extend out what was really minimal drama.

When we came back from commercial, we learned that yes, Abe did win, although less than the $2,000.  This made Bettis very happy because it appeared to him to show that Abe was a man of integrity.  I will grant that it was a big deal for Abe, a poor black man in Kentucky, to win that case, but I will not concede that winning a court case is a sign of integrity.  Perhaps I have spent too much time around lawyers (I am one myself), but the ideal of a court case and the reality of it are two entirely different things altogether.  Abe may have been an upstanding man of unimpeachable integrity, but winning a court case, even against a railroad, even in Kentucky, even at that time period, is not proof positive.  The jury is an idiosyncratic institution; who knows why it decided as it did.

The librarian in Frankfort told Bettis that if he wanted to hear the story of the court case, he would have to go to Paducah.  A historian in Paducah who worked on the railroad remembered that when he began working there some of the older workers who were in their 70’s talked about this case.  I have to say, I find that highly dubious and very convenient as it allowed Bettis to again posit that Abe was a man of integrity.  Then this historian showed Bettis an engine like the one that injured his great-great-grandfather.  It was big and heavy.  It is amazing that it hit Abe, and he still survived.


Bettis wanted to know for certain about whether Abe was born a slave.  Again he turned to Ancestry to find Abe’s death certificate (it’s there, I looked), and he found out that Abe was born while slavery still existed and his parents’ names were Jerry and Liza.  Yes, it turned out that Abe was indeed born into slavery.  Jerry and Liza (Eliza) were slaves of a Joseph Bogard, and that was how Abe got his surname.  In Bogard’s 1841 will, he left all his property including his slaves to his wife Mary.  Using dower lists, Bettis was able to trace Jerry, Eliza, and Abe through 1860 when Mary died and her property was divided.  Abe was sold for $1363 and separate from his parents.  He was about 10.  I wondered however, given that Jerry and Eliza were purchased by a man named Bogard, and Abe was purchased by a man named Hand, if these two men were brothers-in-law and they were dividing Mary Bogard’s estate as her heirs.  Not germane to the story necessarily, but it was something I was curious about given what happened next.

Bettis asked if Abe ever saw his parents again, and as it turns out, he did.  In the 1870 Census, Abe was living with Jerry.  The show spent virtually no time on this discovery, but I looked it up for myself, and I think it is one of the most interesting documents of the Bettis family history.  Abe (here Abram) was indeed living with Jerry.  Eliza was not there, but there were also three other Beaugards (the spelling in 1870) living with them: Mary who was 24 (two years older than Abe), Frances who was seven and Elizabeth who was one.  More interesting is that while Jerry is listed in the census as black, the four other Beaugards–who presumably were his children–were all listed as mulatto.  Again, presuming that these are his children (the 1870 census does not list relationships), that would indicate that Eliza was also of mixed race.  And given that the youngest child was one-year-old, and that at her birth Eliza would have been around 47, there is a strong possibility that Eliza died in childbirth or just afterwards.

Some of this is speculation, but it is no more speculation than assuming a man has integrity because he pressed charges or won a court case.  The story this episode told was manufactured and in some cases blatantly deceptive.  I suppose there are only so many ways to tell a story about slavery and have still be of interest to television viewers.  Nevertheless, this story did not let the facts speak for themselves.  It was so coated in speculation and legend, that I think the show made a mistake by producing this episode, which is something I have never thought before.

Next week appears to be either Helen Hunt or Rita Wilson.  NBC wasn’t telling in the previews.


From a sporting perspective I have lived in a very fortunate era.  At the time when I was aware enough to recognize greatness some of the greatest athletes of all time have lived and played, and I was able to see them in their primes: Michael Jordan, Wayne Gretzky, Steffi Graf (alas, I just missed Martina at her peak), Michelle Kwan, Michelle Akers, Marta, Michael Phelps, Jackie Joyner-Kersee, Usain Bolt, Tiger Woods, Roger Federer, and Lionel Messi.  There may be more; this is not an exhaustive list, and I cannot follow every sport.

To an extent this is a natural progression, every generation of athletes improves upon the previous one, particularly with regard to skill development and training.  Standing on the shoulders of giants and all that.  Even so, the people I named tower over their sports, and their feats will not be easily forgotten (or surpassed) just because time has gone by.

Today Lionel Messi score five goals in a 7-1 trouncing of Bayer Leverkusen at the Camp Nou.  This is the first time that anyone anywhere in any time period scored that many goals at this stage of the Champions League or its predecessor the European Cup (the first time ever in the Champions League).  Not DiStefano, Puskas, Eusebio, Best, Cruyff, Muller, Platini, Maradona, van Basten, Romario, Ronaldo, Zidane, Ronaldinho, or Cristiano Ronaldo.  Pele, of course, never played in Europe.

Goals alone are not an indication of greatness, and Messi plays for arguably the finest side of all time, a side that took over two decades of crafting before the finished jewel could emerge.  Messi is neither the captain nor the engine of the team, but Messi is something else.  He is the personification of Barcelona’s greatness.  It is like he is divinely touched, as though he were created only to play football.  After today’s victory, one of the Spanish newspapers (one of the pro-Barcelona papers, naturally) said that he was not a footballer, he is an extraterrestrial.

Every time you think that you have seen the best of Messi, he surprises you with a completely new level.  It’s enough to make you weep with joy that you have been privileged to see such a player play.  The Argentinians cannot understand what they have although the Catalans rejoice in it.  The World Cup is not necessary to complete Messi’s legacy (teams win tournaments, not individuals), but I do hope he does win one eventually.  If only because only then will Messi’s countrymen finally embrace that the greatest player of all time is one of their own. Imagine the joy if Messi’s Argentina won the World Cup in Brazil.  The Church of Maradona would add a second deity.

After Ronaldinho won the Ballon d’Or and the FIFA World Player of the Year award, he was asked if he thought of himself as the best player in the world.  He laughed and said that he wasn’t even the best player on his own team.  He was talking about Messi, who was still a teenager at the time.  To an outsider that seemed an incredible claim, but at the Camp Nou, they all knew what they had, and they guarded it jealously.  Now the rest of the world knows what the Catalans did.  Messi is not just of this generation; he belongs to the ages.  We will tell our grandchildren that we saw Messi play.  And they will envy us.