For nearly three hours on May 14 the justices of the Connecticut Supreme Court grilled both sides in the Kerrigan and Mock v. Department of Public Health civil marriage rights lawsuit to try to answer a series of nuanced legal questions about suspect classes, levels of judicial scrutiny and the application of state non-discrimination laws. While the questions may have seemed arcane to most people outside the legal professions, the answers will likely determine the future of equal marriage rights in the state of Connecticut. Arguing in favor of extending marriage to same-sex couples was Ben Klein, the attorney for Gay and Lesbian Advocates and Defenders (GLAD), which is representing the eight same-sex couples seeking marriage rights. Connecticut Assistant Attorney General Jane Rosenberg argued for the state in favor of maintaining the separate state civil union system.

One of the key questions in the case is whether the state should define marriage to be the fundamental right to marry the person of one’s choice of the opposite sex, or the more broad definition of the fundamental right to marry the person of one’s choice. Senior Associate Justice David Borden said that the U.S. Supreme Court has in some cases ruled that courts should take a narrow view to defining fundamental rights, such as in the 1997 Washington v. Glucksburg ruling which found that the Constitution’s Due Process Clause does not protect a right to commit physician-assisted suicide. By contrast, Borden said that the court’s 2003 Lawrence v. Texas ruling, which struck down the country’s state sodomy laws, found that it is possible to take too narrow a view of fundamental rights; the court found that the fundamental right at issue was not merely the right to engage in certain sexual acts but a broader fundamental right to liberty. Borden asked both attorneys whether the court should view the right of marriage as being an inherently heterosexual institution.

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