In overturning the ban, Walker validated through his written opinion what many advocates of same-sex marriage have been arguing all along. Among his points he made were these:
Looking beyond these facts, it's clear that there isn't a reasonable justification for banning same-sex marriage. But is there a constitutional right to allow gay and lesbian partners to wed?
Marriage isn't inherently a religious institution. Atheists are allowed to have a union recognized by the state as "marriage," for instance. Walker points out that having religion involved in marriage is a choice by those who want to include it within their ceremony -- so the justification that gay or lesbian couples can't wed based on religious principles doesn't hold up. Like the religions components, the issue of child-rearing is one that doesn't need to be required in order to join two people together in marriage. A sterile couple can wed just as easily (and legally) as a fertile couple. The notion by Prop 8 supporters that the initiative helped promote child-rearing is flawed. The belief that Prop 8 supporters held -- that homosexuality is an unnatural phenomenon -- is without merit. There is well-documented evidence of homosexual animals in nature, and even in the history of mankind, from prehistorical times to the present, homosexuality was not uncommon. The belief that a same-sex marriage could affect a straight marriage is again an unfounded one. Nor will same-sex marriages have any affects on couples choosing to cohabit, who choose to have children outside of marriage, who choose to end their marriage through divorce, and so forth.
Judge Walker argues that there is. If we apply the 14th Amendment to the Constitution, there is an unjust prohibition against homosexuals in regards to marriage. If we allow straights to marry but not same-sex couples -- keeping in mind that there is no justification for barring these same-sex couples outside of the majority's personal preferences -- we are applying the law in an unequal fashion.
Let's think of it in terms of licensure. The state is free to issue licenses for a variety of things -- driving, fishing, hunting, and so forth. In certain instances, it's justifiable to restrict certain people from having these licenses, usually through personal decisions these people have made in life. A person with incredibly poor driving skills can't be issued a driver's license, nor can a person with a violent criminal record receive a permit to own certain weapons.
But it's not justifiable to restrict these licenses on the basis of a person's identity (with age restrictions being the exception to the rule). You can't restrict all black people from attaining a fishing license, for example, or all women a license to hunt -- there has to be a REASON for the denial, based upon the individual's actions in the past. From this point of view, it's clear that denying gays and lesbians the right to marry is unacceptable -- being homosexual is a part of their identity -- and even if it were a choice (which I maintain it is not), it is not one that would warrant the restrictions of liberties in the eyes of the state.
Still, there may not be a constitutional "right" for gays and lesbians to wed. But that's precisely the point -- the right doesn't exist for gays and lesbians, but it doesn't exist either for straights. The government is free to create the title of "married," to allow two persons the right to enter into a contract with one another, whether based out of love or not. Discrimination based on sexual orientation violates the notion that the state cannot "deprive any person of life, liberty, or property, without due process of law."
Judge Vaughn Walker -- a Reagan appointment, it's interesting to note -- laid out an amazing argument against any state ban of same-sex marriage, one that will be difficult for any appellate court to contend. If it reaches the steps of the Supreme Court, hopefully the justices there, too, can take his words into great consideration.