Borden asked about the argument of marriage as a "fundamental right."
Judge Harper asked if the plaintiffs differentiate the fundamental right to marriage and the right to marriage for same-sex couples.
Ben responded that there is no fundamental right to same-sex marriage; the plaintiffs seek the fundamental right to marriage.
Judge Harper responded that same-sex couples are not precluded from marriage, only precluded from same-sex marriage.
Ben argued that defining marriage as only between a man and a woman simply because it's always been between a man an a woman, is circular reasoning. You determine the right to marry by the attributes of that right, not by a traditional definition. The fundamental nature of the right is not dependent upon the gender of the two parties; it's the relationship of two legal equals by mutual consent, taking responsibility for each other, and protected by the state. As in Griswold, same-sex couples have the same interests in entering into those loving bonds that different-sex couples do.