Same-sex couples file federal lawsuit in Cincinnati to be placed on children's birth certificates

CINCINNATI -- Four same-sex couples filed a federal lawsuit in Cincinnati Monday seeking to require the state to place the names of both parents on the birth certificates of their children.

The couples are arguing that Ohio's practice of listing only one partner in a gay marriage as a parent on birth certificates violates the U.S. Constitution.

In September, a judge ordered a deceased gay Ohio man must be listed on his death certificate as married and his husband must be listed as his spouse despite Ohio's gay marriage ban. Monday's lawsuit seeks to build on the success of that suit from Michener and William Herbert Ives .

“At both ends of our lifespans, a marriage is a marriage," the couples’ attorney Al Gerhardstei said. "Ohio must recognize same-sex marriages and the families founded on those marriages throughout life.”

The plaintiffs in the latest suit include three lesbian couples living in the Cincinnati area who were recently married in states that have legalized gay marriage. One woman in each of those marriages is pregnant through artificial insemination, and their babies all are due to be born this summer in Cincinnati hospitals. These plaintiffs are Brittani Henry and LB Rogers, Nicole and Pam Yorksmith and Kelly Noe and Kelly McCracken.

"The donor of the sperm is anonymous and (these couples) will want birth certificates," Gerhardstei said. "They could deliver anytime now because they are all getting close enough... so we need a preliminary injunction, a temporary restraining order to solve their problem before the babies come."

Joseph J. Vitale and Robert Talmas, the fourth couple in this suit, live in New York, where gay marriage is legal. Last year they adopted a boy who was born in Ohio.

If the four couples were in marriages with opposite-sex partners, they would apply for their birth certificates while in the hospital and the Cincinnati registrar would place the names of both parents on the child’s birth certificate.

But because of Ohio’s current same-sex marriage laws, the state will only place one parent on their birth certificates.

"If something happens to my wife and she's unable to care for my child, I do not want my child to be in an adoption agency," Rogers said. "I want to be listed as a legal parent for my child."

Gerhardstei said birth certificates are the "primary identity document in our society."

He said medical care, access to schools, travel and release of information are all easily accomplished with birth certificates -- and without an "accurate" one, children will be constantly burdened.

“Birth certificates tell the child, ‘these adults are your parents,’ and tell the community that these adults and children are a family,” Gerhardstei said. “Forcing families to accept incorrect birth certificates imposes life-long harms and is a direct attack on family dignity.”

Ohio Attorney General Mike DeWine’s office will fight the lawsuit.

Previously, DeWine has said he has a duty to defend Ohio's constitution and statutes, including the statewide ban on gay marriage, passed overwhelmingly by voters in 2004.

Gay marriage supporters say they have collected enough signatures to put the issue back on the Ohio ballot in November.

In September's death certificate case, Judge Timothy Black ruled Ohio's ban on gay marriage demeans "the dignity of same-sex couples in the eyes of the state and the wider community."

"Once you get married lawfully in one state, another state cannot summarily take your marriage away," Black wrote, saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution.

Black also referenced Ohio's historical practice of recognizing other out-of-state marriages even though they can't legally be performed in Ohio, such as those involving cousins or minors.

Two federal judges have reached the same conclusions as Black, though they went much further in their rulings. Judges in Oklahoma and Utah both recently struck down gay marriage bans in the deeply conservative states. Those rulings are being appealed.

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