A Texas judge should not have granted a divorce to a gay male Beaumont couple who were united civilly in Vermont last year because Texas does not recognize marriage between two people of the same sex, Texas attorney general Greg Abbott said. In a petition filed this week, Abbott has asked that state district judge Tom Mulvaney set aside his March 3 ruling granting John Anthony, 34, and Russell Smith, 26, a divorce. "As a matter of law, a court cannot grant a divorce where no marriage existed," Abbott told The [Beaumont] Enterprise for Thursday's editions.
State law gives Mulvaney until next Thursday to reconsider his ruling. A hearing in the case has been set for Tuesday. On Thursday, Mulvaney told the Associated Press that he could not comment on the case because it is pending.
Under Vermont law, a civil union is legal between two members of the same sex, but a full-fledged marriage must be between a woman and a man. Texas does not recognize same-sex unions. "Texas law does not provide for civil unions, nor does it recognize civil unions established in other jurisdictions," the attorney general wrote in his petition to the court. "Likewise, Texas law does not provide for the dissolution of civil unions established in other jurisdictions."
Smith, who petitioned for the divorce, said getting the dissolution in Texas was expensive and strenuous. But getting the union dissolved in Vermont would have required Smith or Anthony to live in that state for at least a year before a final dissolution hearing. Smith said he had to get a legal dissolution for financial reasons. The couple did not file joint income tax returns, but they did have joint auto and life insurance. The two also ran several businesses together, and the division of their assets and properties was done by agreement. His attorney, Ronnie Cohee, said that even though Texas law refers to a husband and wife when talking about marriage, state law refers to "parties" when addressing dissolution.
Angela Hale, a spokeswoman in Abbott's office, said that part of the reason for the attorney general's involvement is that "we don't want to see a precedent set."