Yesterday at the Supreme Court, struggling over whether the argument for same-sex marriage is better expressed in terms of fundamental liberty or equal protection.

In the same-sex marriage argument yesterday (PDF), the Solicitor General premised his argument entirely on the right to equal protection of the laws, but Justice Kennedy wanted him to talk about the right to marry. Kennedy framed the question on the old right-to-die case Glucksberg (which was getting its first mention):

JUSTICE KENNEDY: I'm interested in your comments on Glucksberg, which says what we should have to define a fundamental right in its narrowest terms. A lot of the questions that... we're asking your colleague in the earlier part of the argument... had that in mind, I think. What... do we do with the language of Glucksberg that says we have to define it in a narrow way?

GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental [rights] argument?

Verrilli refrains from saying because we thought it was the weaker argument (perhaps because of Glucksberg). He said because "this issue really sounds in equal protection." ("Sounds in" is legal talk.)

Later, Justice Breyer, questioning the state's lawyer, gave some indication that he thought the right to marry was a better ground for the decision than equal protection:
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