Four couples from Ohio have filed a new lawsuit in which they are taking on the state’s refusal to list both same-sex parents on a child’s birth certificate.
The issue is, at its heart, a simple one: “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,” the suit, filed by Cincinnati attorney Alphonse Gerhardstein, says.
One of the couples in the suit, Pam and Nicole Yorksmith, whose second child is due in June, want the rights that any opposite sex couple would be able to take for granted. “We’re entitled to have that name listed on the birth certificate,” Pam Yorksmith is quoted as saying. All of the couples say they fear that, should the worst happen, the partner not listed on the birth certificate will have little to no claim under Ohio law due to the state’s hinging parent recognition on the marriage status.
The federal lawsuit argues that the state only allowing one same-sex partner to be listed as a parent on a child’s birth certificate is unconstitutional, and that the marriage-conferred right of automatic parental recognition should be open to same-sex couples who were married out of state — so yes, this case does take on the state’s gay marriage ban, but in a slightly different way than we’re used to seeing.
While in states like Oklahoma and Utah we’ve seen court cases that directly aim to strike down the state’s gay marriage bans, and with some success, attorney Alphonse Gerhardstein has used a different approach by slowly chipping away at Ohio’s marriage ban.
Before this current case was the suit in which Gerhardstein represented James Obergefell as he fought to be listed as the spouse on husband John Arthur’s death certificate. They were successful in that case, with U.S. District Court Judge Tim Black giving an extensive but narrow ruling that supported not only John Arthur’s claim, but the claims of all same-sex surviving spouses because, as Black wrote, same-sex marriages carried out in other states can’t simply just disappear across state lines.
The Supreme Court of the United States has shown a reluctance to look at the issue of marriage equality, and so while ultimately direct challenges to state gay marriage bans might not be successful in the near term, narrow cases that demand only narrow rulings could find favor.
Recent moves to expand federal recognition of same-sex marriages, particularly in terms of recognizing the right for joint filing for bankruptcy and prison visitation rights, may play their part in adding weight to this case. The federal government already recognizes same-sex marriages for the purpose of many (yet still not all) of the benefits and responsibilities associated with marriage.
Republican Gov. John Kasich’s office has said it doesn’t comment on pending litigation, except to say: “the governor believes marriage is between a man and a woman.” Attorney General Mike DeWine also hasn’t commented, but has previously said he is duty-bound to defend the 2004 voter-enacted same-sex marriage ban.
This is in contrast to state administrations such as Nevada’s which has just announced it will no longer defend its own same-sex marriage ban in court because, based on the Supreme Court’s Windsor v. United States decision, among other rulings and determinations, the ban is unlawful.
While this latest Ohio filing isn’t necessarily a guaranteed success, it does seem a strong case and certainly it will probably be cases like this that ultimately forces Ohio to eventually recognize marriage equality.
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