At issue is really whether or not gay marriages are marriages, because both parties agree that the right to marry is a fundamental right. Proponents of proposition 8 contend that the potential to procreate is intrinsic to the definition of marriage, which automatically excludes as a class same sex couples. But after tracing the history of marriage as a legal term, Judge Walker demonstrates that the potential to procreate has never been a requirement for marriage in the United States.
"The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household ... Today, gender is not relevant to the state in determining spouse's obligations to each other and to their dependents ... Same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF48. Marriage under law is a union of equals." (pg. 113 of Perry vs. Schwarzenegger)Using this definition of the right to marry, equal protection and due process in the constitution guarantee our right to choose a spouse regardless of gender. We can only hope that the SCOTUS will uphold the right to marry as the right to choose a spouse, but I think Judge Walker provides a compelling case given the evidence and testimony submitted in trial and given legal precedent.