Couple, Denied a Marriage License, Applies Again

[WARREN, OH] - A heterosexual couple denied a marriage license by a probate judge put the judge's ruling under scrutiny by filing a new application.

Jacob Nash and Erin Barr, whose attempt to marry has gotten national attention because Nash is transsexual, filed a new marriage license application in Trunbull County Probate Court when the office opened October 2, less than 48 hours after Probate Judge Thomas A. Swift denied the first application.

The new application has also ended up in Swift's court.

Swift denied the first application made by the couple September 20, saying that Nash "misled" the court by not disclosing his previous marriage when he was a woman. That marriage ended in 1998.

Barr and Nash amended their application to include Nash's divorce decree prior to a September 5 hearing on the matter. Swift also granted a motion by the couple's attorney Deborah Smith to "conform the application to all the evidence" at the hearing, which is a cure for any error or omission.

Still, Swift refused to reconsider his earlier decision in a September 30 ruling, again citing only "falsification made in the original application" as the sole basis for denying the license.

So, Nash and Barr started over.

The new application was prepared accurately under the supervision of transgender rights attorney Randi Barnabee.

Because Nash is a Massachusetts native, he was able to correct the sex marker on his birth certificate after his sex reassignment surgery, according to the laws of that state.

Currently, only Ohio, Idaho, and Tennessee prohibit such corrections, though Ohio allowed Nash to correct his driver's license.

Barnabee accompanied the couple to the courthouse to observe the new filing.

Barnabee said the application was taken by clerk Mary Horvath, with magistrate Susan Lightbody also present as directed by Swift.

Lightbody refused to confirm or deny that she was present or make any comment on anything that happened.

Barnabee said that even though the couple clearly met all the requirements for marriage, Lightbody informed the couple that the judge had set this new application for a hearing on November 5.

Barnabee added that 30 percent of Trumbull County's marriage license applications are granted the same day.

Swift's order for the hearing, issued later that day, is longer and has more legal analysis than his two previous denials combined.

In it, Swift undermines his previous "falsification" claim and shows that his issue with this license has always been Nash's sex.

"The court further finds that the designation of sex on an Ohio driver's license is not necessarily determinative of a person's sex for the purpose of marriage under the laws of the state of Ohio," wrote Swift.

Barnabee said that probate judges are not empowered to make an independent legal determination of Nash's sex, which the state of Massachusetts has already settled.

"He just wants another chance to look down my client's pants," said Barnabee, "and we're not going to let him have it."