Suit: Gay parents want their names on birth certificates

• Lawyers who specialize in same-sex marriage say second-parent adoptions cement rights of nonbiological parent
• But parents in same-sex relationships say birth certificate with both of their names is more than symbolic
• It%27s important when dealing with the Social Security Administration%2C passport applications%2C they say

CINCINNATI — When they were married, Pam and Nicole Yorksmith combined their last names to make Yorksmith.

Now, they want their child, due in June, to have the same name — and for them both to be listed as parents on the birth certificate.

"We're entitled to have that name listed on the birth certificate," Pam Yorksmith said Monday.

In Ohio, they're not. That's why they and three other same-sex couples on Monday filed a federal lawsuit seeking to force the health departments of Ohio and Cincinnati to list the names of both same-sex parents on birth certificates.

"All of the (couples) seek an order that will establish for children and parents in families established through same-sex marriages the same status and dignity enjoyed by children and parents in families established through opposite-sex marriages," according to the suit, filed by Cincinnati lawyer Alphonse Gerhardstein.

Parents in states where same-sex marriage is legal in theory should be considered legal parents of their child from the time of the baby's birth, like hetrosexual married couples, lawyer Lina Guillen of San Francisco writes on nolo.com. But state policies are more nuanced.

• California law permits same-sex parents who are legally married or registered domestic partners to both be recognized on their child's birth certificate.

• In May, the Iowa Supreme Court ruled that state officials must allow both women in same-sex marriages to be listed on the birth certificate.

• In March 2011, Massachusetts officials began allowing the practice for both lesbians and gay men without legal wrangling.

• Maryland, New York and Oregon officials also permit the practice, but only between two women; men have additional procedures to tackle.

The Ohio case involving four couples is similar to one that Gerhardstein filed last year. He convinced U.S. District Court Judge Tim Black to allow James Obergefell to be listed as the surviving spouse on husband John Arthur's death certificate. The Cincinnati men married in July in Maryland, which recognizes gay marriage. Arthur died in Cincinnati of ALS, also known as Lou Gehrig's disease, in October.

Gerhardstein admitted the birth certificate suit, like the death certificate suit last year, is an attack on Ohio's ban on gay marriage, which the state's voters approved in 2004.

"He's obviously filed a lawsuit because what he's trying to do is against the law," said Phil Burress, head of the conservative advocacy group Citizens for Community Values based in Sharonville, Ohio.

Burress notes that voters in Ohio and 30 other states approved banning same-sex marriages either by changing state laws or constitutions. Seventeen states and the District of Columbia allow same-sex marriage through a public vote, change in state law or via court decisions. Two states have judicial reviews pending on the issue.

"When a majority vote to pass an unconstitutional law, that's why the federal courts are here," Gerhardstein said.

Those supporting same-sex marriages are filing such lawsuits because they are desperate after voters in three states legalized same-sex marriage while voters in 31 others banned it. Burress said.

"They're not going to get what they want through public opinion," Burress said. "So they're going shopping for a liberal judge, ... a judge who doesn't care about the law."

Marriage is the oldest institution and exists to rear children, he said. That's why his organization helped push the 2004 ballot issue that banned same-sex marriage in Ohio.

"My issue is protecting marriage and not continuing to experiment with different types of marriages so people can feel good about themselves," Burress said.

Nonsense, said Gerhardstein and the same-sex couples who filed Monday's suit. Marriage is for two people, regardless of gender, who love each other and may want to raise children in committed, loving relationships.

The gay couples have children born or who will be born in Ohio. Three of the couples, who live in Ohio or Kentucky counties, are due to become parents in June with the deliveries scheduled to take place in Cincinnati.

The fourth couple, living in New York, adopted a child born in Ohio. They seek to amend the child's birth certificate so it reflects his new name and both of his parents – information already listed on the New York order of adoption.

The Ohio Department of Health wouldn't comment on pending litigation. Through the Ohio Attorney General's office, it is appealing last year's decision regarding death certificates.

"The city did not defend the law in the Obergefell case, and it won't defend it in this case," Deputy Cincinnati Solicitor Aaron Herzig said Monday. "The city does not have any local laws treating same-sex marriages differently from opposite-sex marriages. In 2004, city voters repealed the charter amendment that had prohibited the city from giving legal protections based on sexual orientation."

Also on Monday, the federal government expanded some benefits to same-sex partners that already apply to traditional marriages, including joint backruptcy filings and not forcing a spouse to testify against a spouse. Those benefits apply to the areas where the federal government has jurisdiction in states that don't recognize same-sex marriages.