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Today is Wednesday, November 28, 2007


Heterosexual couple's marriage denied again

[WARREN, OH] - Trumbull County Probate Judge Thomas A. Swift has refused to reconsider his earlier denial of a marriage license to a heterosexual couple because the groom-to-be is transgender.

Swift's abrupt order was issued September 30, hours after the couple's attorney Deborah Smith filed a detailed, 28-page motion asking the judge to reconsider his September 20 denial of their marriage license.

In the September 20 ruling, Swift said that applicants Jacob Nash and Erin Barr "misled" the court by not initially disclosing Nash's prior marriage when he was a woman. That marriage ended in divorce in 1998.

Barr and Nash did, in fact, amend their license application to include the prior marriage and a copy of Nash's Massachussetts divorce decree prior to a September 5 hearing.

That hearing was called after magistrate Thomas Norton denied the couple's application August 8 claiming that Nash is really female and granting the license would violate Ohio's prohibition of same-sex marriages.

Nash, who is a Massachusetts native, had his birth certificate altered according to the laws of that state to reflect his new sex following his surgery.

Ohio joins Idaho and Tennesee as the only states that do not alter birth certificates following sex reassignment surgery.

Also at issue in this case is the court's commitment to the "full faith and credit" clause of the U.S. Constitution.

Smith contends that the court's refusal to recognize Nash as male under Massachusetts law is a clear violation of it.

But Swift steered clear of those legal issues in both rulings, instead focusing on what he called "falsification made in the original application" as the sole basis for denial.

Swift refused to recognize an amendment made by Barr and Nash on September 3 correcting the initial application.

He is also apparently ignoring his own decision to grant the motion made by Smith during the hearing to "conform the application to all the evidence." This would, by his ruling, amend the original application to reflect the corrections and all of the testimony given during the hearing by Nash and Barr about Nash's prior marriage.

That motion to conform was a significant part of Smith's case for reconsideration, yet Swift didn't mention it in either of his rulings.

The Gay People's Chronicle attempted to ask Swift whether he was denying that he ever granted Smith's motion, or is reneging on it.

Swift refused to comment, saying through his spokesperson Susan Lightbody that "the court only speaks through its journal."

Swift also would not say if he is going to issue findings of fact and conclusions of law at some later time, as neither ruling contains either.

Findings of fact and conclusions of law were requested by Smith in an August 19 letter to the judge. That letter was accepted as part of the official court record by Swift at the hearing.

Previously, Swift refused to comment on his refusal to allow nationally known transgender rights attorney Randi Barnabee to represent the couple pro hac vice, or under special circumstances.

He also would not say why he would not grant Smith an extension of time to file her post-hearing brief, although it was the failure of his court reporter to complete the transcript on time that caused Smith's need for more time.

Both actions were considered "unreasonable" by Smith, who suggested that the judge is biased against her clients.

That hearing transcript is the only official record of Swift granting Smith's motion to correct the application. Smith does not yet have it.

Smith says there are other options to get Nash and Barr legally married, but said that a strategy to do it, which could include a federal civil rights suit against the judge, has not yet been decided.

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