The Justices adjourned for their morning recess.
Just before leaving, they questioned Rosenberg about the level of scrutiny required for a suspect class argument, which she identified as strict scrutiny. But she maintained that the case was not about sexual orientation discrimination, since nothing prohibits gay men and lesbians from marrying a member of the opposite sex--they just choose not to do so.
Justice Borden questioned whether that was a realistic argument, if sexual orientation is a central part of their identity. And Justice Palmer, clearly troubled by the logic, responded that he thought it was a facile approach to a suspect class claim.
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