Justice Borden suggested that civil unions are inclusive, rather than exclusive, in that they grant rights and privileges of a status that did not exist before.
Ben acknowledged that civil unions are a step forward, but that they don't comport with equality under the Connecticut constitution. The Court's role, Ben argued, is to figure out whether the Legislature drew the line in the right place, cutting same-sex couples off short of full marriage.
Borden refocused his questioning on the argument that civil unions are unconstitutional. The premise of cases the plaintiff's cite, such as Plessy v. Ferguson, was based on race. Analogies to those cases have to rest on an underlying premise that there is an illegal classification.
Ben responded that the classifications in the case are both sex and sexual orientation. Since sex and race both are invidious classifications, cases like Loving are applicable.