Married and gay: 'We have a right to raise our kids'

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 Yorksmiths, who live in Northern Kentucky, are among eight plaintiffs – six of them local – in the case. Also represented are Brittani Henry and Brittni Rogers, of Golf Manor, and Kelly McCracken and Kelly Noe, of Elsmere. 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, though 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.

'We're just like any other family'





When Kelly McCracken and Kelly Noe decided to have a baby, they'd been legally married for two years.

It seemed the logical next step in their relationship which started in 2006 when the Kellys – as their friends affectionately refer to them – met at a show where McCracken was singing with her band, coincidentally named The Kellys.

The two hit it off and were soon dating. Things progressed, and they moved in together. In 2011, they got married in a ceremony in Massachusetts. And in 2013, they decided to start a family, an endeavor that would cost countless hours and thousands of dollars as they researched sperm donors, had samples shipped cross-country, underwent fertility treatments and, on the third attempt, successfully became pregnant via artificial insemination.

Noe carried the baby, whose sex they kept a surprise until delivery. McCracken was there when little Ruby was born, and the new parents were immediately smitten.

Ten months later, they're like any traditional couple in many ways: McCracken feels helpless in the middle of the night when Ruby wakes up hungry, because it's Noe who breastfeeds. And when Noe wistfully says she'd birth 10 more children if given the chance, McCracken nervously laughs to hide her panic.

The late nights, the sleep deprivation, the worries about what toys to play with and how much TV to allow: It's all the same.

"Sometimes she's up and like this at 4 a.m.," McCracken said, pointing to a babbling and cooing Ruby as she stealthily crawled across the playroom floor in the family's Elsmere, Kentucky, home. "And I think, you're going to be driving and dating before I know it, so I'm just going to appreciate this at 4 in the morning."

With that, McCracken scooped up the girl and kissed her forehead. Ruby, a purple bow clipped into her auburn hair, laughed, clapped her tiny hands and transferred from one mother's lap to the other with a high-pitched giggle.

"We're a family just like any other family," Noe said, a steadying hand on Ruby's back as she tried to stand.

Except that – in Kentucky where they live, and Ohio where they work – they're not legally considered a family at all.

The real-life repercussions are numerous. Noe's job offers health insurance for domestic partners, but it's a step down from what's offered to married couples and not worth the money. So McCracken is insured through Kentucky's health exchange, and her coverage comes from a different company.

They'd like to visit McCracken's family in northeast Ohio more often, but Noe worries that something might happen en route. "The idea of five hours in a car kind of terrifies me," she said. What happens if they're in a wreck and Noe is unconscious? Will the hospital workers recognize McCracken as Ruby's other parent?

It's like walking around without health insurance, constantly worried that one wrong step might lead to the fall that leads to the broken leg that puts the family in financial ruin.

Except in this case, they have insurance and they have each other. What they don't have is peace of mind that the people they encounter as they struggle through a crisis will be legally obligated to recognize the trio as a family.

'Practical, tangible hurts' caused by state laws

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

The suit represents four couples, including two men from New York. Though 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 non-listed parent to take their child places? Can the non-listed 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, Noe and 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."

McCracken continued, "There are people who don't want to take responsibility for the children that they accidentally keep having, but they can keep having them and they're recognized and they're legal. We just want to be recognized."

'We love her the same,' says mom

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, 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."

What it means to you

What are your thoughts on the Supreme Court battle ahead to determine whether gay marriage will be recognized nationwide? What do these cases mean to you personally? Please email Opinion Editor Cindi Andrews at candrews@enquirer.com.