NEWS

What's really at stake for married gay couples?

Amber Hunt and Jessie Balmert
Gannett Ohio

Little Orion's body shook as the 4-month-old's coughs came out like sickly seal barks.

Pam Yorksmith, on the phone with her pediatrician in the middle of the night last October, took off Orion's shirt, as instructed, to watch him breathe. The skin grew taut around his ribs, and he lightly wheezed with each inhale. Stridor breathing, the doctor said. Time for the emergency room.

So Pam bundled up the croup-stricken newborn and rushed to the hospital. She was too panicked to grab his birth certificate, the one that bears the name of her wife, Nicole — the woman who carried Orion in her womb — and also lists Pam, albeit with an asterisk next her name.

At the bottom of the certificate comes the disclaimer: "Pursuant to United States District Court, Southern District of Ohio — Case No. 1:14-cv-129." That case commonly is referred to as Henry v. Hodges. It's one of the six cases from four Midwest states challenging voter-approved same-sex marriage bans headed to the Supreme Court. The arguments in front of the high court are set for April 28, with a decision expected in June.

The Yorksmith family — Pam, 42; Nicole, 35; and their sons Grayden, 4, and Orion, 7 months — pose for a photo Jan. 11 at their home in the Cincinnati area. The couple are among several involved in the U.S. Supreme Court case titled Henry v. Hodges.

The Yorksmiths, who live in northern Kentucky, are among eight plaintiffs in the case. The case has been merged with one filed by Jim Obergefell, a Cincinnati man suing for the right to be listed on a death certificate as the husband of his late partner, John Arthur.

The asterisk on the certificate bothers Pam, although she considers herself lucky: Most legally married same-sex parents in Kentucky and Ohio are missing one parent's name on the birth certificate. But the luxury of being named, asterisk or not, did Pam little good that night in October as her son struggled to breathe because she'd rushed out of the house in such a hurry that she didn't grab the certificate.

The Cincinnati hospital refused to recognize her as a parent. In Ohio, children can only have one mother and one father, and, because Nicole was already listed as Orion's mother in the hospital's records, Pam was, by legal standards, rushing in the equivalent of a neighbor's child for emergency care.

"There I was, with my baby having problems getting air into his lungs, and I had to wait," Pam recalled. "I remember I said, 'This is the most ridiculous thing in the world. All you have to do is Google my name, and you'll see I'm on this kid's birth certificate.' "

It took an hour for hospital workers to reach Nicole, who was home caring for the couple's 4-year-old, to get permission to treat Orion. Pam was left in limbo in that time, surrounded by flu-stricken children in the waiting room, kicking herself for being careless, for not thinking clearly enough to either grab the certificate or send Nicole with Orion instead, and choking down tears as her baby wheezed in her arms.

These are the moments that keep the couples involved in the same-sex marriage battle awake at night. Having their marriages recognized is about more than principle and convenience and tolerance and tax breaks, they say. It's about health care and handling crises.

Above all, it's about family.

'Caught in the middle'

When Cara Blessing and her former partner adopted a little boy, only one of their names could be placed on the birth certificate because Ohio law prohibits unmarried couples from adopting children.

That became a problem when the couple separated and Blessing, a Columbus resident, went to court for shared custody of her son. After a legal battle lasting a year and a half, Blessing gained equal access to her child, but it wasn't simple or inexpensive.

"We're very fortunate that he was very young at the time. He doesn't remember not seeing me," Blessing said.

But Blessing said the custody fight made her more passionate about gaining legal rights for same-sex couples. Children shouldn't lose access to a parent, grandparents, aunts and uncles because Ohio limits the number of names on a birth certificate, she said.

"So many kids are caught in the middle," Blessing said.

Blessing and her partner, Chelsea Bolyard, were one of several couples who traveled from central Ohio to Chicago last year to be married. They hoped that by the time they returned, U.S. District Court Judge Timothy Black would have declared the state's ban on same-sex marriage unconstitutional. That happened, but the decision was immediately appealed.

"Nothing happened in Ohio. Our marriage was never recognized," Blessing said.

That lack of recognition has numerous practical repercussions for their lives. They would like to have children with both parents' names on the birth certificate, change their last names without a fee and file state taxes jointly, but they can't because of Ohio's ban on gay marriage, Blessing said.

Their employers offer benefits for domestic partners, but Blessing said she knows other partners aren't as lucky. People are left without health insurance and benefits.

"Those are really big things," she said.

Kelly McCracken, left, and Kelly Noe will be traveling to Washington, D.C., with their daughter, Ruby Noe-McCracken, this month to attend the Supreme Court hearing addressing gay marriage bans in Ohio, Kentucky, Michigan and Tennessee.

'Tangible hurts'

Susan Sommer, director of constitutional litigation for Lambda Legal, is among the lawyers representing the Yorksmiths.

The lawsuit represents four couples, including two men from New York. Although they're legally recognized as married there, their adopted son was born in Ohio, and they're fighting to have both of their names listed on the birth certificate.

It's maddening for the couples, Sommer said, especially those who, like Pam Yorksmith, travel regularly for work.

"She flies to a job in Rhode Island, and she's married. She flies to Ohio, and she's not," Sommer said. "It's this phenomenon that her marriage is flickering on and off under state law like it's on some kind of strobe light. There are a lot of very practical, day-in, day-out tangible hurts caused by not being recognized as married."

For any one family, the issues are mostly hypothetical. But for every imagined scenario that Sommer can list, she's able to point to at least one court case in which it's actually happened. Among the questions:

What if there's a health care emergency? Or a divorce? Are both parents obligated for child support? Can sperm donors sue for visitation? What if one spouse dies? Will the spouses be allowed to say goodbye, to hold hands, to make the life-ending choices that they entrusted with each other? Will they or their children be given survivor benefits? When traveling, does the parent listed on the birth certificate have to give written permission for the nonlisted parent to take their child places? Can the nonlisted parent sign school permission slips? How will having just one legal parent affect passports and school registrations? Will the legally married couple be allowed their married names on their driver's licenses?

An added insult, plaintiffs Kelly Noe and Kelly McCracken said: In Ohio and Kentucky, the law doesn't question whether the father listed is actually the biological father. A married woman could list her husband on the certificate of a child who was conceived in an affair, and a single woman could fill in that blank with any man willing to sign the paperwork. No questions asked.

"We planned and we paid lots and lots of time and money into bringing this wonderful little bundle of joy into our lives, and now we have to fight to be made responsible for her," Noe said. "It just seems so silly."

'We love her the same'

The four states fighting to uphold their gay-marriage bans successfully argued to a federal appellate panel that the decision should be left up to voters.

In the opinion that landed the issue in the Supreme Court, appellate Judge Jeffrey S. Sutton wrote: "When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers."

Instead, he said, it should be left up to voters to "become the heroes of their own stories" by changing the law through elections.

Noe doesn't buy it: "You can't have a majority vote on a minority issue," she said.

Her marital status shouldn't concern anybody else because it won't affect them, she said. It will only affect her family and, most specifically, her daughter Ruby.

"I want her to grow up knowing that her family is a family," Noe said. "It is, and she will know that from us, but I don't want her to go to school and have a hard time because her friends and teachers and other families don't see her as a family. We're not traditional by any means, but we love her the same. We teach her the same. We look different, but we're not bringing her up any differently than a traditional family."

The sentiment is shared by the Yorksmiths. They forged their lives intentionally, just as they forged their maiden names — Pam's surname was York; Nicole's was Smith — when they married in San Francisco in 2008.

The women started laughing when asked to describe their two sons: Grayden, the 4-year-old, is sensitive and playful. He loves swords and soccer and reading. "He's just a really sweet, good-hearted kid," Nicole said.

Orion, who whipped the croup and is now a healthy 10-month-old, is just starting to show glimpses of his budding personality.

When strangers suggest they move to a state that recognizes their union, they both balk. This is their home, they said, and they want Grayden and Orion to grow up with their cousins, aunts and uncles.

"Why should we have to uproot our families and our lives?" Nicole said. "We have a right to raise our kids with their cousins, just like everybody else does."

For more

Inside: Profile of the Cincinnati man who has become the face of the case. Page XA.

Monday: Gay marriage opponents explain their reasons.

Tuesday: A breakdown of the legal arguments in the case.

Wednesday: Coverage of the arguments.