SHEILAH KAST, host:
Advocates of gay marriage hit a couple of speed bumps this past week. In California, the First District Court of Appeal heard arguments about whether excluding same-sex couples from marriage violates the state constitution. The court has 90 days to issue a ruling. And in what some gay marriage supporters see as a victory, and what some opponents see as a cop out, lawmakers in Massachusetts postponed a vote on a constitutional amendment to ban same-sex unions of any kind. They'll revisit the matter after Election Day.
Today, we have the second of two conversations about gay marriage and where activists may go from here. Last week we spoke with a supporter of same-sex marriage. We'll now hear from the opposing side.
Teresa Collett is a professor at the St. Thomas University School of Law in Minneapolis. Two years ago, Collett testified before the Senate Judiciary Committee in support of the Federal Marriage Amendment, which defines marriage as the union of one man and one woman.
Thanks for being with us.
Professor TERESA STANTON COLLETT (St. Thomas University School of Law): I'm delighted to be here. Thank you for including me.
KAST: In California, a lawyer for the state argued that California should keep its ban on same-sex marriage. The attorney stressed the importance of, quote, a meaningful adherence to a definition of marriage the way it has always been. Do you think that's a strong enough argument to ban gay marriage?
Prof. COLLETT: The stronger argument is that tradition represent the collective wisdom of society as to how we order and encourage permanence in the sexual union of a man and woman, which, for some reason, the attorney general of California did not think would be, if articulated in that way, persuasive to the California courts.
KAST: In Massachusetts, the highest court ruled that legislators there can vote on a constitutional amendment banning gay marriage and civil unions. Do you think trying to ban, even civil unions, goes too far?
Prof. COLLETT: Well, the problem with civil unions is that was a phrase that came into our vocabulary after the Vermont case. A group of same-sex couples sought to require the state of Vermont to recognize their unions as marriages, through what's called the Common Benefits Clause of that constitution. And what the Vermont Supreme Court said was we're not going to require the legislature to call it marriage, but what we are going to do is we're going to require the legislature to craft an identical legal status.
During this process of deliberation by the Vermont legislature, they take a recess, and they go back to their hometowns, and they have meetings with their constituents. And at every single meeting, what the constituents said was we want the opportunity to express our opinions through the ballot box. And yet the Vermont legislature disregarded every single town hall meeting and instead decided that they knew better than the people, that they were going to enact the equivalent of marriage...
KAST: So does all that mean that you think that there is an argument for banning civil unions?
Prof. COLLETT: I think there's a very strong argument for banning civil unions. On the other hand, Hawaii, where the legislature, actually through the political process, said, okay, what are the real needs of individuals with same-sex attraction? They came up with a status called reciprocal beneficiaries. And that status says that individuals who are not eligible to marry each other but desire to create a permanent relationship of mutual care and support, they can create such a legal status.
It's not dependent on having a sexual relationship, it's not dependent upon cohabitation. And that sort of arrangement makes a lot of sense to me because it doesn't require this sort of false agreement that civil unions does regarding the sexual conduct, and it's a legislative representation of the people rather than a judicially imposed decision on the people.
KAST: The issue of gay marriage didn't move in Massachusetts, in California last week, but in two other states, courts issued rulings on gay marriage on Friday. In Tennessee, the State Supreme Court ruled that voters should decide on whether to ban gay marriage. In Nebraska, the highest court upheld a voter-approved ban on same-sex marriage. In light of those decisions, how much do activists on your side of the issue have left to do?
Prof. COLLETT: We think we have a lot of work to do. In fact, there was a really interesting commentary on Slate where one of the advocates for the other side came to this dawning realization that advocates on behalf of traditional marriage as it's often characterized are really not motivated by a dislike for or a disrespect for our fellow citizens who are attracted to members to the same sex. What motivates us is a deep and abiding concern for the institution of marriage, which has historically been where we concern ourselves with how children are brought into this world and how they're raised. Marriage, in order to be a viable, civil institution needs to be recognized as ideally permanent.
KAST: Teresa Collett teaches law at St. Thomas University in Minneapolis. She joined us from Minnesota Public Radio. Thanks.
Prof. COLLETT: Thank you.
KAST: To learn more about the debate on gay marriage, visit NPR.org.