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.
I hate that argument that gay people are free to get married because we can marry opposite-sex partners. Wouldn't that argument allow people to marry in order to get or provide certain benefits, say for instance...immigration benefits? The law says that I can't marry someone from another country in just in order to provide them citizenship, so what if I married someone of the opposite sex just to get their health benefits? Is that against the law? If so, is that judge suggesting that gay people break that law when he says that we're free to marry people with whom we don't have an emotional tie? Wouldn't that be considered fraud upon the government?
Plus, that argument is just plain snarky - "You can get married, just not to anyone you'd actually WANT..."
"Judge Harper asked if the plaintiffs differentiate the fundamental right to marriage and the right to marriage for same-sex couples."
It's troubling that the Court would actually ask this question considering all that's been written about marriage for same-sex couples (NOT a separate institution called "same-sex marriage", an unfortunate shorthand that has perpetuated a misinterpretation of the creation of a new institution) since Goodridge.
My understanding is that in Loving v. Virgina the U.S. Supreme Court recognized that the right to marry is the right to marry the person of your CHOICE. And if it's at all acknowledged that sexual orientation is unalterable trait (and that's a big given), then you have no choice but to choose a same-sex spouse.
So, if you cannot choose the person you want to marry (and your only choices are people of the same-sex), you are being denied your fundamental right to marry.
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