COOPER J. TALMAS-VITALE was born in Ohio just after dinnertime on April 19, 2013, six pounds, eleven ounces, with a wisp of brown hair and the tiniest fingers and toes his fathers had ever seen. The social workers had told them to wait three days before falling in love, just in case the baby’s birth mother changed her mind and called off the adoption. But Joe Vitale and Rob Talmas had spent six months dealing with the paperwork to become parents, one year trying to find a birth mother, ten hours racing from their home in New York City to the hospital delivery room in Ohio, and forty-five minutes on a frantic buying spree at a baby superstore that yielded a stroller, a portable crib, and a stuffed Curious George, wearing a red T-shirt and a big grin.
“Don’t buy too much. It may not happen,” Vitale warned his husband, who was stuffing the shopping cart with diapers. The social worker had been adamant: three days.
But Vitale was in the delivery room when Cooper was born. He texted a photo to his husband, who was praying in the hospital chapel. It was a picture of the blue-eyed newborn, swaddled in a white knit cap, the first of 6,500 photos they would capture of their son in the coming months. He’s ours, Talmas thought as he sprinted to the nursery, and the three days flew right out the window.
In the Catholic hospital on the outskirts of Cincinnati, the nurses embraced the two gay men from New York City. One helped Vitale scrub in and cut the baby’s umbilical cord. Another offered the empty room across the hall so the new fathers could take part in nighttime feedings. A third put Talmas in a wheelchair, placed the sleeping infant in his arms, and rolled them out of the hospital to an SUV stuffed with so much baby gear, they had trouble closing the trunk.
Talmas e-mailed his sister and a small circle of friends, dubbed Team Cooper, who had helped with the adoption: DONE and DONE! Cooper is ours.
He e-mailed a picture to his parents, who hadn’t been told about the baby in case something went wrong: Here is your grandson.
Talmas’s father, a retired economist, called minutes later, thinking the e-mail was a joke. Then he grew quiet.
“Wait. Is this really our grandkid?”
“It’s your grandkid,” Talmas said.
They drove straight back to New York City, blinking every few minutes at their snoozing newborn, wrapped up like a burrito in the backseat. For sixteen years, it had just been Joe and Rob, along with a boisterous brood of brothers, sisters, nieces, and nephews scattered across the suburbs of New York and New Jersey. With careers in insurance and human resources, they lived in a one-bedroom condominium on New York City’s East Side and traveled to Rhode Island on the weekends, where they passed the time fishing or cooking dinner for friends.
But there had never been any question of one day starting a family. They married in lower Manhattan’s city hall in 2011, three months after Governor Andrew Cuomo signed the New York Marriage Equality Act, and started placing calls about private adoption.
And now Cooper was home, in a nursery with a toy tepee, and it seemed as if it had always been this way, with baby gates and sticky floors and toy trucks perched on the window ledge. Cooper holding a bottle. Cooper eating his first bite of spaghetti. Cooper in snowman footie pajamas. Cooper at the pediatrician with hiccups that his fathers took for convulsions, much to the amusement of the office staff. They called their son “Little Prince.”
Cooper was just learning to talk in January 2014 when Vitale got a call from the adoption agency. The nonprofit organization in western New York had never had exclusionary policies against gay parents, and Vitale and Talmas, both in their mid-forties, had spent months working with Adoption STAR’s social workers and parent mentors.
“We have a problem here, bad news,” associate director Michael Hill said.
“What bad news?” Vitale tensed and thought of Cooper, who had started toddling to the front door, drooling with outstretched arms, every time they came home from work. It was the most sublime five minutes of the day.
“Ohio will only put one of your names on Cooper’s birth certificate,” Hill said. “There’s only space for one father—not two.”
“You’ve got to be kidding me.” A surrogate court in New York had already finalized Cooper’s adoption and had listed both men’s names on the order. All that was left was the birth certificate from Ohio, but Vitale knew that it was the single most important legal document, needed for Cooper’s schooling, travel, health insurance, and medical care. How could they be forced to decide which father to list and which father to leave off? And how could he break the news to his husband, who had been adopted at birth by a Jewish family and had never known his biological parents? Talmas cherished the idea of a strong and uniform family identity. “Totally unacceptable,” Vitale seethed.
“Listen,” Hill said. “There is a death certificate case going on in Ohio with this guy named Jim Obergefell. You should call his lawyer on Monday.”
It was Sunday. “I’m calling now,” Vitale said, and hung up.
He dialed Al Gerhardstein’s law office, pressed Al’s extension, and prepared to leave an urgent message. But Al picked up on the first ring.
“My name is Joseph Vitale. My husband is Rob, and our son is Cooper.”
“You’re the New York couple,” Al replied easily. “And you want your son to have a correct birth certificate.”
“It’s not about Rob and me,” Vitale said, somewhat mollified by Al’s quick response. “It’s about Cooper.”
From his office in Cincinnati, Al had been looking for parents like Vitale and Talmas for weeks, ever since he decided that the next step—now that Judge Black had ruled on what happened at the end of life—would focus on life’s beginnings. From birth to death, Al thought.
He started calling family attorneys and adoption agencies and quickly discovered that legally married same-sex couples that adopted babies in Ohio or had them through artificial insemination were denied birth certificates listing the names of both parents. There was legal backing to do it, since state law denied recognition to married gay couples.
To Al, it was another practical problem that he could bring to court, much like the case on death certificates. He knew that birth certificates gave parents the legal authority to approve medical care, apply for health insurance, travel with their children, and interact with schools and childcare workers. Yet Ohio was forcing same-sex couples to choose one parent over the other on an official document that established a child’s identity and family.
Al thought about his grandson, Oliver, who was about to celebrate his second birthday. Before bedtime, he would fix his gaze on Al, not particularly focused on the words in Al’s bedtime story about a wise owl that would save Oliver and his friends but on the drama in Al’s voice.
Al started gathering the names of possible plaintiffs and heard about Vitale and Talmas through their adoption agency. Then, on a Sunday afternoon, Vitale called.
In mid-January 2014, Cooper J. Talmas-Vitale became Adopted Child Doe, the youngest plaintiff in Al’s second lawsuit challenging Ohio’s ban on marriage recognition.
Al found two more plaintiffs in the suburbs of Kentucky, pregnant with their second son.
The first time around, Nicole Yorksmith had struggled through six rounds of artificial insemination before becoming pregnant. Her wife, Pam, went out again, and again, every night for five straight months to the convenience store around the block to bring thirty-one-year-old Nicole peanut butter milkshakes or Fruit Roll-Ups or the occasional can of SpaghettiOs, whatever satisfied the day’s cravings.
Grayden Yorksmith came unexpectedly in 2010, after the women spent a warm night at a pumpkin patch.
“Oh my God, Pam,” Nicole said as they were getting ready for bed. “I think I peed on myself. Help me get to the bathroom.”
There was a pool of water on their hardwood floor. “Baby, I think your water broke.”
“No. I think my bladder is doing something funny.”
Pam Yorksmith smiled at her wife, whose brown hair was flying every which way. Six years older with a career in technology, Yorksmith had always been the voice of reason; her first gift to Nicole after they met at a friend’s murder mystery party in 2006 had been a humidifier because dry air made Nicole sniffle.
Yorksmith used pillows to prop her wife up in bed, and when the contractions started a few hours later, they met their obstetrician at a hospital in Cincinnati. Grayden was a plump, happy baby, and the two mothers moved their son and a feisty Labrador-pointer mix named Kahlua from Cincinnati to a new house on a cul-de-sac in northern Kentucky, with a bright-yellow kitchen and a mimosa tree that drew hummingbirds in the fall.
A single piece of paper, Pam Yorksmith decided, shouldn’t have mattered much to the busy family of three. She was running a technology consulting company and Nicole was commuting into Cincinnati, where she worked in human resources at Procter & Gamble. But when Grayden’s birth certificate arrived in the mail with only her wife’s name on it, it seemed to Yorksmith as if she no longer officially mattered, all those late-night feedings and trips to the pediatrician, the crushing tenderness she felt for her son, denied by the State of Ohio. For the first time as a new mother, she felt vulnerable and afraid, and the wills and parenting agreements that she and her wife had drawn up together, just in case, no longer seemed as binding.
The two women had traveled to California to marry in 2008. In the upstairs hallway of their new house, they kept a wall clock permanently set at 6:30 P.M. to commemorate the moment they exchanged wedding vows in white dresses, with Pam in a lavender train. They stopped a second clock at 5:08 P.M. to memorialize Grayden’s birth.
But Pam Yorksmith was the non-biological mother, and without standing on an Ohio birth certificate, she worried about losing access to her son. Something could happen to her wife. Something could happen to their marriage. A few of their gay friends had split, and in particularly turbulent breakups, “non-bio moms” had to fight to see their children.
“I do the four A.M. feedings,” she lamented, “but I am always less than.”
And then Nicole became pregnant with their second son.
They learned about Al Gerhardstein’s lawsuit on a Facebook page for gay women with children. In January, with her wife five months pregnant, Pam Yorksmith called Al. “I want a secure legal tie to my children,” she said. “I don’t want to have to worry every day if something were to happen to Nicole that someone is going to come and take my kids away from me.”
“Just like we worked on the end of life,” Al said, “we also want to work on the beginning of life. A birth certificate should reflect the true nature of what’s happening in your life, whether Ohio says that it’s true or not.”
Al invited the Yorksmiths to join the lawsuit. “There will be a lot of press around this,” he warned.
But there really wasn’t much to discuss. Busy preparing a second nursery with blue walls and safari prints, the two mothers signed right up.
Instead of litigating case by case, every birth and every death, Al decided that now he would take on Ohio’s entire marriage recognition ban. In the early weeks of 2014, he and his team drew up a lawsuit in the names of Joe Vitale, Rob Talmas, and Adopted Child Doe; Pam and Nicole Yorksmith; and two other female couples, both married and expecting to deliver babies in Ohio.
Al could have challenged the law’s main tenet: the blanket ban on same-sex marriage in Ohio. In other states, civil rights lawyers were pursuing marriage equality cases through high-profile lawsuits that appeared destined for intense battles in state legislatures or the courts. But in the topsy-turvy fight for gay rights, Al wanted to keep his arguments closely synced to the Supreme Court ruling in Windsor, which required the federal government to recognize married gay couples. He would attack only the portion of Ohio law that dealt with marriage recognition, a single step in a long game that he hoped would set fundamental precedent.
He considered the state’s policy on birth certificates a callous disregard for families, and in a legal brief, his team wrote, “Every time these parents and their children, as well as third-parties, look at the children’s Ohio birth certificates, they will see official disrespect for the families and legal insecurity for their relationships.”
In Al’s law office, the staff hung up photos of Cooper and his fathers; Grayden and his mothers; Kelly McCracken and Kelly Noe, who were married in Massachusetts and expecting a baby girl; and Brittani Henry and Brittni “LB” Rogers, who were married in New York and expecting a baby boy. The law could annihilate bad policy. Al thought about that every time he walked past the photos, to his desk or his law library or across the street to the federal courthouse, where a plaque at the front entrance described the Bill of Rights.
Al knew the issue of marriage equality to many Americans often seemed more philosophical than tangible, a fight in someone else’s backyard. But reporters and other civil rights lawyers had begun to call, drawn to the struggles of his plaintiffs, particularly John Arthur and Jim Obergefell. Every civil rights case starts with a story.
For his new case on birth certificates, Al decided to partner with Susan Sommer, a Yale-educated constitutional law attorney with the national group Lambda Legal. Al would remain lead counsel.
On a clear Monday morning in mid-February, Al put on one of his neckties with pictures of smiling children, walked across the street to the federal courthouse, and sued Ohio for the second time. All of his plaintiffs were in town except for Rob Talmas, who worried about bringing Cooper into Ohio without a birth certificate that listed the names of both fathers.
In his office afterward, Al smiled at Joe Vitale and the three pregnant women and their wives, all due to have babies that summer. Reporters were waiting in his tiny law library, where a conference table had been pushed to the side of the room to make space for a press conference. Vitale, who sold insurance to New York City’s top law firms, had been startled when he walked in earlier that day to find frayed green carpeting and battered wooden desks, like something out of a 1970s sitcom. But he felt instantly at ease when Al said just before the press conference, “Talk from the heart. Talk about why this is so important to you.”
Facing local television crews, Vitale twisted the wedding ring on his finger. He had never spoken publicly about the right to marry and had certainly never been on the evening news. He looked at Al, talking calmly into the bank of microphones as Grayden Yorksmith played with toy trucks on the floor. “A marriage is a marriage and a family is a family,” Al said. “A family is a loving, nurturing group of people, and the identification document when the children come along is the birth certificate, and it ought to be right.”
With a shaking voice, Vitale added, “We want to be afforded the same benefits and rights as every other citizen of the United States.”
That afternoon, news of the lawsuit spread. “The idea that two men on a birth certificate or two women on a birth certificate, I’m sorry, it just defies logic,” Phil Burress, with Citizens for Community Values, told Cincinnati’s WLWT News Five. “It’s absolute nonsense. The case should be thrown out of court.”
Later, Ohio Attorney General Mike DeWine would argue that what had started as a narrow challenge to Ohio’s policy on death certificates had turned into an all-out effort to strike down a critical portion of state law, one that had been approved by a majority of voters and affected more than just birth and death certificates.
Vitale didn’t dwell on the opposition. He left Ohio after the press conference, landed in New York just before dinner, hopped into a taxi, and practically ran with his suitcase from the elevator in his high-rise to his front door down the hall. He stumbled inside and kissed his husband and Cooper, who was drinking a last bottle before bed. Vitale was happy. He was home.