I concur with the majority that the question of same-sex unions is the province of the Legislature rather than the Judiciary. The issue presents no opportunity for the development of the common law in New York but nonetheless it poses significant constitutional questions. I write separately to amplify this constitutional dimension.
Cardozo observed that:
“It is a question of degree whether the law which takes my property and limits my conduct, impairs my liberty unduly. So also the duty of a judge becomes itself a question of degree, and he is a useful judge or a poor one as he estimates the measure accurately or loosely. He must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs, his sense of right, and all the rest, and adding a little here and taking out a little there, must determine, as wisely as he can, which weight shall tip the scales.” (Benjamin N. Cardozo, The Nature of the Judicial Process, at 161-162 [1921].)
The scales are historically unbalanced at the start of any examination of same-sex unions by the weight of history, custom, and significant United States Supreme Court precedent favoring the defendant.
The common-law concept of marriage as a union between a man and a woman has deep roots in American jurisprudence. *109More than a century ago in Murphy v Ramsey (114 US 15 [1885]), the Supreme Court held that polygamists and bigamists could be denied the right to vote in the Territory of Utah. Although the language employed by the Court may appear anachronistic, the sentiments expressed the ideals of the age and accurately reflected the common law concerning matrimony.
“[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take [its] rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony." (Id. at 45 [emphasis added].)
The concept of marriage has traditionally been accepted by courts throughout the United States as the union of a man and a woman. Any change in that frequently articulated heterosexual construct would be a revolution in the law rather than evolution.
In an effort to avoid the revolutionary nature of the concept of same-sex unions, the dissent, the plaintiffs, various amici, and the motion court have consistently characterized same sex unions as impheating the right to marry which is a fundamental right; and have argued that any infringement of that right triggers a strict scrutiny analysis. In my view, this analysis is over-broad and flawed. In determining whether an asserted liberty interest or right should be regarded as “fundamental” for purposes of substantive due process analysis under the Fourteenth Amendment, the Supreme Court has consistently applied a two-pronged test. First, there must be a “careful description” of the asserted fundamental liberty interest. (Washington v Glucksberg, 521 US 702, 721 [1997] [internal quotation marks omitted].) Second, the interest, so described, must be firmly rooted in the “Nation’s history, legal traditions, and practices.” (Id. at 710; see Lawrence v Texas, 539 US 558, 593 [2003] [Scalia, J., dissenting]; United States v Salerno, 481 US 739, 751 [1987].) In Glucksberg, the Supreme Court characterized the asserted liberty interest as “a right to commit suicide which itself includes a right to assistance in doing so.” (521 US at 723.) The Court distinguished this from “a liberty interest in determining the time and manner of one’s death,” “a right to die,” “a liberty to choose how to die,” “[a] right to choose a human, digni*110fied death” or “[a] liberty to shape death.” (521 US at 722 [citations and internal quotations marks omitted].)
The precision with which the Supreme Court in Glucksberg defined the nature of the interest being asserted as deserving of constitutional protection was not novel for the Court. In many previous cases the Court utilized a similarly precise analysis for substantive due process. (See e.g. Reno v Flores, 507 US 292, 302 [1993] [describing alleged right as “the . . . right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution,” not whether there is a right to “freedom from physical restraint,” “a right to come and go at will” or “the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives”]; Collins v Harker Heights, 503 US 115, 126 [1992] [describing asserted interest as a government employer’s duty “to provide its employees with a safe working environment”]; Cruzan v Director, Mo. Dept. of Health, 497 US 261, 277, 279 [1990] [declining to decide whether there is a “right to die,” but assuming that the Constitution grants competent persons “a constitutionally protected right to refuse lifesaving hydration and nutrition”]; Michael H. v Gerald D., 491 US 110, 127 n 6 [1989] [plurality op] [focusing on “historical traditions specifically relating to the rights of an adulterous natural father,” rather than on whether “parenthood,” “family relationships,” “personal relationships” or “emotional attachments in general” are interests that have historically been recognized and protected (internal quotation marks omitted)].) Thus, the Court has consistently rejected the broad categorization of protected rights advocated by the plaintiffs, certain amici, and the court below.
Similarly, New York courts have focused on the specific interest being asserted, rather than on a more general and vague formulation of that interest. For example, following the reasoning on Cruzan, the Court of Appeals has held that under article I, § 6 of the New York Constitution, a person has a liberty interest in refusing unwanted medical treatment. (See Rivers v Katz, 67 NY2d 485, 493 [1986] [recognizing right of involuntarily committed patient to refuse unwanted administration of anti-psychotic medication]; Grace Plaza of Great Neck v Elbaum, 82 NY2d 10, 15 [1993] [acknowledging state liberty interest in refusing unwanted medical treatment].) Although this interest *111has been broadly described by the Second Circuit as a “right ... to hasten death” (Quill v Vacco, 80 F3d 716, 727 [2d Cir 1996], revd 521 US 793 [1997]), it clearly does not include a right to attempt or commit suicide (see Matter of Fosmire v Nicoleau, 75 NY2d 218, 227 n 2 [1990] [distinguishing refusal of life-sustaining treatment from, suicide]) or to enlist the aid of another in attempting or committing suicide.
The Glucksberg test has been specifically used to determine whether an asserted right or interest is protected by the liberty language of article I, § 6 of the New York Constitution. (People v Bell, 3 Misc 3d 773, 779-782 [Sup Ct, Bronx County 2003] [quoting the two-pronged Glucksberg test for evaluating substantive due process claims in the course of an opinion recognizing that under both the state and federal due process clauses, defendant had a protectable liberty interest in not being improperly stigmatized as a sexually violent predator]; see also People v Isaacson, 44 NY2d 511, 520 [1978], quoting Snyder v Massachusetts, 291 US 97, 105 [1934] [“(d)ue process of law guarantees respect for personal immunities ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’ ”].)
The plaintiffs contend and the motion court agreed that the courts of New York have recognized that “[t]he protections of the New York Constitution extend beyond those found in the Federal Constitution, which sets the floor, but not the ceiling, for the rights of the individual.” (7 Misc 3d 459, 473 [2005].) The contention is imprecise. In determining whether a provision in the New York Constitution affords greater rights than a similarly worded provision in the United States Constitution, a
“noninterpretive analysis attempts to discover, for example, any preexisting State statutory or common law defining the scope of the individual right in question; the history and traditions of the State in its protection of the individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right.” (People v P. J. Video, 68 NY2d 296, 303 [1986], cert denied 479 US 1091 [1987].)
In People v Vilardi (76 NY2d 67, 80 [1990]), Judge Simons in a concurrence accurately observed that
“[e]ven if the language of the two provisions is the *112same . . . the Court may conclude that a different construction is in order because of noninterpretative considerations [including] whether the right has historically been accorded greater protection in New York than is presently required under the Federal Constitution, whether it is ‘of peculiar State or local concern’ and whether the State citizens have distinctive attitudes toward the right.”
Thus, the protections afforded under the New York Constitution are not simply broader and all-encompassing. The additional protections are tied to a multifaceted analysis of the right asserted, and inter alia, it is in this analysis that the motion court erred.
Plaintiffs have not argued, and the lower court could not find, that New York statutory or common law ever defined the scope of the right to marry to include same-sex unions; that the history and traditions of this state protect a right to enter into a same-sex marriage; that the drafters and ratifiers of the New York Constitution intended to confer such a right distinct from and in addition to whatever right to marry exists under the United States Constitution; or that the citizens of this state have ever taken issue with the definition of the right to marry as one that exclusively involves one man and one woman or have sought to expand the scope of that right to protect same-sex, as well as opposite-sex, marriages. Plaintiffs’ failure to allege, much less prove, that any of these factors supports a right to enter into a same-sex marriage is fatal to their due process claim under the State Constitution.
The court below held that specificity in defining the nature of an asserted state due process claim is unnecessary. To support that contention, the court and plaintiffs both rely on People v Onofre (51 NY2d 476 [1980], cert denied 451 US 987 [1981]) and Cooper v Morin (49 NY2d 69 [1979], cert denied sub nom. Lombard v Cooper, 446 US 984 [1980].) Neither decision supports that contention in any respect.
The motion court ignored the plain language of Onofre that demonstrated it was decided on federal, not state, constitutional grounds. (See 51 NY2d at 483 [“whether the provision of our State’s Penal Law that makes consensual sodomy a crime is violative of rights protected by the United States Constitution”].) Onofre simply did not hold that there is a fundamental right to engage in “nonmarital sexual intimacy,” as the lower court opined. (7 Misc 3d at 477.) If it had, New York’s laws *113against adultery, incest and prostitution, as well as its laws allowing divorce or separation on the ground of adultery, would all be presumptively unconstitutional because, on the lower court’s reading of Onofre, those laws infringe upon a fundamental constitutional right. (See Penal Law §§ 255.17, 255.25, 230.00; Domestic Relations Law § 170 [4]; § 200 [4].)
In Cooper the Court utilized a state due process analysis, but the holding that “pretrial detainees are entitled to contact visits of reasonable duration” (Cooper v Morin, 49 NY2d at 73) was explicitly narrow. The limited nature of the holding in Cooper is evident from the later decision of Matter of Doe v Coughlin (71 NY2d 48 [1987], cert denied 488 US 879 [1988]), where the Court held that prison inmates have no state or federal constitutional right to conjugal visits. When the issue is properly framed in terms of the right being asserted (i.e., to enter into a same-sex marriage), it is readily apparent, as the lower court candidly acknowledged, that there is no such right under either the Federal or State Constitution. Neither Onofre nor Cooper lends itself to the expansive interpretation offered by the court below.
Ultimately, the question facing this Court is not the question articulated by the court below: whether homosexuals have a fundamental right to marry. It is whether the State or Federal Constitution recognizes a right to enter into a same-sex marriage.
It is beyond cavil that the Supreme Court has recognized a substantive due process right to marry. (See Loving v Virginia, 388 US 1 [1967]; Zablocki v Redhail, 434 US 374 [1978]; Turner v Safley, 482 US 78 [1987].) But the right recognized in these decisions concerned opposite-sex and not same-sex couples. (See Loving, 388 US at 2; Zablocki, 434 US at 379; Turner, 482 US at 97-98.) The right to marry is limited to opposite-sex couples by implication in a series of Supreme Court cases relating marriage to procreation and childrearing. (See Skinner v Oklahoma ex rel. Williamson, 316 US 535, 541 [1942] [“Marriage and procreation are fundamental to the very existence and survival of the race”]; Meyer v Nebraska, 262 US 390, 399 [1923] [liberty language in Due Process Clause includes “the right of the individual ... to marry, establish a home and bring up children”]; Maynard v Hill, 125 US 190, 211 [1888] [characterizing the institution of marriage as “the foundation of the family and of society, without which there would be neither civilization nor progress”].)
*114The Supreme Court has never stated or even implied that the right to marry under the Constitution or federal precedent extends to same-sex couples. And no court, state or federal, has ever held that marriage, traditionally understood, extends to same-sex couples.1 “Although same-sex relationships are more open and have garnered greater societal acceptance in recent years, same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state nor are they implicit in the concept of ordered liberty.” (Standhardt v Superior Ct., 206 Ariz at 284, 77 P3d at 459.) The federal substantive due process right to marry simply does not extend to same-sex unions; nor does any corollary right under the New York State Constitution. Plaintiffs, the motion court and the dissent have failed to cite any precedent in New York that holds that the right to marry applies to same-sex, as well as opposite-sex, unions. Marriage in New York, as elsewhere, has always been understood as a relationship between a man and a woman. Because the nature of the state due process right to marry is limited to opposite-sex couples, the lower court’s judgment that New York’s marriage statutes violate article I, § 6 of the New York Constitution is erroneous.
*115Plaintiffs next claim that the reservation of marriage to opposite-sex couples discriminates on the basis of sex and sexual orientation and thus violates the equal protection guarantee of the New York Constitution. Article I, § 11 of the New York Constitution provides, in relevant part, that “No person shall be denied the equal protection of the laws of this state or any subdivision thereof.” (NY Const, art I, § 11.) Without deciding whether the marriage statutes discriminate on the basis of sex, the motion court agreed with plaintiffs that the statutes discriminate on the basis of sexual orientation and held them unconstitutional on this ground. That holding was also erroneous.
Plaintiffs’ equal protection claim is foreclosed by the Supreme Court’s summary disposition in Baker v Nelson (409 US 810 [1972]). In Baker v Nelson, the Minnesota Supreme Court considered a broad-based federal constitutional challenge to a statute which, as interpreted by the trial court and the State Supreme Court, did not permit the issuance of marriage licenses to same-sex couples. (291 Minn 310, 311-313, 191 NW2d 185, 186 [1971].) In that case, petitioners argued, inter alia, that the reservation of marriage to opposite-sex couples discriminated against them in violation of the Equal Protection Clause. (291 Minn at 312, 191 NW2d at 186] [noting petitioners’ argument that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory”].) The Minnesota Supreme Court rejected this argument along with petitioners’ other claims. (291 Minn at 313-315, 191 NW2d at 187.) Petitioners appealed to the Supreme Court, raising the same federal constitutional claims. The Supreme Court dismissed their appeal for want of a substantial federal question. (Baker v Nelson, 409 US 810 [1972].) Under well-established precedent, the dismissal of the appeal in Baker for want of a substantial federal question constitutes a holding that the challenge was considered by the Court and was rejected as insubstantial. (See Hicks v Miranda, 422 US 332, 343-345 [1975].) The dismissal of the appeal is an adjudication on the merits of the federal constitutional claims raised, including due process and equal protection, which lower courts are bound to follow. (Id.)2
The summary disposition in Baker v Nelson controls the disposition of the state equal protection claim brought herein. The *116Court of Appeals has repeatedly held that the equal protection guarantee of article I, § 11 of the New York Constitution (the first sentence of section 11) is no broader in coverage than the Equal Protection Clause of the Fourteenth Amendment. (See Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 360 n 6 [1985]; see also Matter of Esler v Walters, 56 NY2d 306, 313-314 [1982]; Dorsey v Stuyvesant Town Corp., 299 NY 512 [1949], cert denied 339 US 981 [1950].) The second sentence of section 11, which prohibits discrimination on the basis of “race, color, creed or religion” obviously has no application here. Thus, for purposes of this case, it is irrelevant that in adding the second sentence of section 11, the 1938 New York Constitutional Convention intended to provide greater protection against discrimination on the basis of “race, color, creed or religion” than had been provided theretofore by the Equal Protection Clause of the Fourteenth Amendment.
Because of this rule of parallel interpretation, a holding of the Supreme Court rejecting as insubstantial an equal protection claim under the Equal Protection Clause necessarily results in rejection of the same state law claim brought under article I, § 11. I agree with the Second Department when it concluded just that in Matter of Cooper (187 AD2d 128 [2d Dept 1993] [relying upon Baker in holding that the reservation of marriage to opposite-sex couples does not violate the equal protection guarantee of the State Constitution], appeal dismissed 82 NY2d 801 [1993].) Even if we were not to give Baker preclusive effect, there is no basis to conclude that the reservation of marriage to opposite-sex couples violates the equal protection guarantee of article I, § 11 of the New York Constitution.
For purposes of both state and federal equal protection analysis, “[a] statute which treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective.” (People v Liberta, 64 NY2d 152, 168 [1984], cert denied 471 US 1020 [1985], citing, inter alia, Craig v Boren, 429 US 190, 197 [1976]; see also People v Whidden, 51 NY2d 457, 460 [1980], appeal dismissed 454 US 803 [1981].) The reservation of marriage to opposite-sex couples, however, does not “treat[ ] males and females differently,” as plaintiffs conceded below. It is beyond cavil that both men and women may marry persons of the opposite sex; neither may marry anyone of the same sex. Thus, there is no discrimination on account of sex.
The glaring difficulty with plaintiffs’ sex discrimination argument, as the Vermont Supreme Court noted, is that “the mar*117riage laws are facially neutral; they do not single out men or women as a class for disparate treatment, but rather prohibit men and women equally from marrying a person of the same sex.” (Baker v State, 170 Vt at 215 n 13, 744 A2d at 880 n 13 [“(T)here is no discrete class subject to differential treatment solely on the basis of sex; each sex is equally prohibited from precisely the same conduct”].)3 Other state courts have also rejected the claim that “defining marriage as the union of one man and one woman discriminates on the basis of sex.” (170 Vt at 215 n 13, 744 A2d at 880 n 13, citing Baker v Nelson, 291 Minn at 312-314, 191 NW2d at 186-187 [1971], Singer v Hara, 11 Wash App at 253-255, 522 P2d at 1191-1192 [1974]; see also Jones v Hallahan, 501 SW2d at 590; Dean v District of Columbia, 653 A2d at 363 n 2 [Steadman, J., concurring] [“(t)he marriage statute applies equally to men and women”]; Goodridge v Department of Pub. Health, 440 Mass at 376, 798 NE2d at 991 [Cordy, J., dissenting] [the marriage statute “does not subject men to different treatment from women; each is equally prohibited from precisely the same conduct”].)
Plaintiffs rely on Loving v Virginia (388 US 1 [1967]) and Perez v Sharp (32 Cal 2d 711, 198 P2d 17 [1948]), for the proposition that facial neutrality does not immunize a statute from constitutional challenge, at least where it can be shown that the statute was enacted with a discriminatory intent.
Unlike the history of the antimiscegenation statutes struck down in Loving, however, which clearly stigmatized African-Americans as inferior to Caucasians, plaintiffs identify nothing in the history of New York’s marriage statutes suggesting that they were “intended to promote any hostility between the sexes, preserve any unequal treatment as between men and women, or perpetuate any societal or cultural bias with regard to gender.” (Lawrence v State, 41 SW3d 349, 358 [Tex Ct App 2001], revd on other grounds 539 US 558 [2003].) In light of the discriminatory intent with which they were enacted, antimiscegenation laws could not be legally justified by the fact that they applied equally to Caucasians and African-Americans. By way of contrast, there is no evidence that laws reserving marriage to opposite-sex couples were enacted with any intent to discrimi*118nate against either men or women. Accordingly, such laws cannot be equated in a facile manner with antimiscegenation laws.
The Loving analogy is inapt on purely logical grounds. The statutes struck down in Loving (as well as those in Perez) prohibited marriages between members of different races, not between members of the same race. The equivalent, in the area of sex, of an antimiscegenation statute would not be a statute prohibiting same-sex marriages, but one prohibiting opposite-sex marriages, an absurdity which no state has ever contemplated. The equivalent in the area of race, of a statute prohibiting same-sex marriage, would be a statute that prohibited marriage between members of the same race. Laws banning marriages between members of the same race would be unconstitutional, not because they would “segregate the races and perpetuate the notion that blacks are inferior to whites” (Lawrence v State, 41 SW3d at 357), but because there could be no possible rational basis for prohibiting members of the same race from marrying. Laws against same-sex marriage, on the other hand, are supported by multiple reasons set forth infra. The reservation of marriage to opposite-sex couples simply does not discriminate on the basis of sex.
Plaintiffs’ reliance on Loving is disingenuous for additional reasons. It is a fundamental precept of constitutional law that “[a] racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race.” (Lawrence v Texas, 539 US at 600 [Scalia, J., dissenting], citing Washington v Davis, 426 US 229, 241-242 [1976].) As demonstrated above, there is no history of constitutional recognition of same-sex unions, let alone absolute constitutional protection for same-sex unions. To elevate the issue of same-sex unions to that of discrimination on the basis of race does little service to the legacy of the civil rights movement, and ignores the history of race relations in this country. How can one consider the horror of the Civil War and the majesty of the Emancipation Proclamation in the same breath as same-sex unions?
Finally, the lower court accepted plaintiffs’ claim that the marriage statutes discriminate on the basis of sexual orientation. Reserving marriage to opposite-sex couples, however, does not discriminate on the basis of sexual orientation. Homosexuals may marry persons of the opposite sex, and heterosexuals may not marry persons of the same sex. As the Hawaii Supreme Court noted, “Parties to ‘a union between a man and a woman’ *119may or may not be homosexuals. Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals.” (Baehr v Lewin, 74 Haw 530, 543 n 11, 852 P2d 44, 51 n 11 [1993]; see Dean v District of Columbia, 653 A2d at 363 n 1 [Steadman, J., concurring] [agreeing with Baehr that “just as not all opposite-sex marriages are between heterosexuals, not all same-sex marriages would necessarily be between homosexuals”]; Goodridge v Department of Pub. Health, 440 Mass at 320 n 11, 798 NE2d at 953 n 11.)
I recognize that New York’s statutory scheme of reserving marriage to opposite-sex couples may have a greater impact upon homosexuals than heterosexuals. Nevertheless, it is fundamental that disparate impact alone is insufficient to invalidate a statute, even with respect to suspect or quasi-suspect classifications such as race and gender. Under well-established federal equal protection doctrine, a facially neutral law (or other official act) may not be challenged on the basis that it has a disparate impact on a particular race or gender unless that impact can be traced back to a discriminatory purpose or intent. The plaintiffs must show that the law was enacted because of, not in spite of, its foreseeable discriminatory impact. (See Washington v Davis, 426 US at 238-248 [rejecting an equal protection challenge to police department’s use of a job-related employment test to evaluate verbal skills of employment applicants which a higher percentage of African-Americans failed than Caucasians where there was no showing that racial discrimination entered into the establishment or formulation of the test]; Arlington Heights v Metropolitan Housing Development Corp., 429 US 252, 264-271 [1977] [municipality’s refusal to amend zoning ordinance to allow multifamily, low income housing in village where single family homes predominated did not violate the Equal Protection Clause where there was no evidence of discriminatory intent even though such refusal to rezone had a disproportionate impact on African-Americans]; Personnel Administrator of Mass. v Feeney, 442 US 256, 271-280 [1979] [upholding veterans’ hiring preference in state employment despite its disproportionate impact on women where there was no evidence that the statute conferring the preference was enacted with an intent to discriminate against women, as opposed to nonveterans of either sex].) Contrary to plaintiffs’ implication and the dissent’s artful urging, nothing in Lawrence v Texas overturned this line of authority. In Lawrence, the Supreme Court overruled Bowers v Hardwick (478 US 186 *120[1986]), and held that Texas could not criminalize homosexual acts of sodomy committed in private between consenting adults. (539 US 558 [2003].) Lawrence was decided on substantive due process grounds, not equal protection grounds. With respect to the due process basis for the decision, the Court in Lawrence determined that the Texas same-sex sodomy statute had been enacted with an antihomosexual animus. Plaintiffs have not alleged, much less proved, that the legislators who enacted the New York statutes related to marriage were motivated by a similar animus. In the absence of such allegation and proof, the mere fact that those statutes may have a disproportionate effect on homosexuals is not enough to sustain a challenge under New York Constitution, article I, § 11.
Equal protection jurisprudence under article I, § 11 of the New York Constitution is fully consistent with these principles. (See Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 321 [1995] [“an equal protection cause of action based upon a disproportionate impact upon a suspect class requires establishment of intentional discrimination”], citing, inter alia, Arlington Heights v Metropolitan Housing Development Corp., 429 US 252, 265-265 [1977] and Washington v Davis, 426 US 229, 240 [1976]; People v New York City Tr. Auth., 59 NY2d 343, 350 [1983] [“purposeful discrimination is a necessary element” of a state equal protection claim based on disparate impact], citing, inter alia, Personnel Administrator of Mass. v Feeney, 442 US 256 [1979]; Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27, 43-44 [1982] [noting that “(t)he more careful scrutiny standard has been applied when the challenged State action has resulted in intentional discrimination against a class of persons grouped together by reason of personal characteristics, the use of which called into question the propriety of the particular classifications’ ’], appeal dismissed 459 US 1138 [1983].)
In its cursory, one-paragraph discussion of plaintiffs’ sexual orientation discrimination claim, the lower court cited only one case, this Court’s opinion in Under 21 v City of New York (108 AD2d 250 [1985]). That reliance was clearly misplaced. In Under 21, we considered a challenge to the validity of an Executive Order issued by then-Mayor Koch which, inter alia, forbade city contractors from refusing to hire persons solely on the basis of their “sexual orientation or affectional preference,” regardless of their ability to perform their jobs in a satisfactory manner. (108 AD2d at 251.) In our opinion, we stated that “mere *121homosexual preference or orientation . . . cannot be used as the basis for denying ‘any person’ the equal protection of the law.” (108 AD2d at 256.) Under 21 provides no basis on which to invalidate New York’s reservation of marriage to opposite-sex couples.
First, unlike the Executive Order at issue in Under 21, which was aimed at hiring policies that intentionally discriminated on the basis of a person’s “sexual orientation or affectional preference,” the marriage statutes are facially neutral with respect to one’s sexual orientation, i.e., both heterosexuals and homosexuals may marry someone of the opposite sex, while neither may marry anyone of the same sex. The statutes do not “deny[ ] ‘any person’ the equal protection of the law” on the basis of his or her “homosexual preference or orientation.”
Second, in modifying this Court’s judgment, the Court of Appeals held that the Mayor had unlawfully usurped the role of the City Council in establishing legislative policy and that such usurpation could not be defended on the ground that the Mayor was preventing unlawful discrimination. (65 NY2d at 357-364.) With respect to the latter holding, the Court concluded that “the equal protection clause does not ordinarily prevent the city from contracting with private employers who discriminate on this basis [sexual orientation], as the existence of the contract would not, by itself, make the city ‘responsible’ for the private employment decisions so as to invoke constitutional protections.” (Id. at 364.) Because no conduct attributable to the City of New York was involved, the Court declined to decide “whether some level of ‘heightened scrutiny’ would be applied to governmental discrimination based on sexual orientation.” (Id.)
In Under 21, the Court of Appeals essentially determined that this Court need not have decided whether discrimination based on sexual orientation is subject to a higher standard of judicial review than rational basis because, on the facts of the case, that discrimination was not chargeable to the City. That being so, this Court’s discussion of the appropriate standard applicable to sexual orientation discrimination was unnecessary to how the case should have been decided.
Plaintiffs have not proved, or even alleged, that the marriage statutes were enacted with the purpose or intent to discriminate against homosexuals. Because the marriage statutes are not subject to an equal protection challenge on that basis, it is unnecessary to determine whether a law that did discriminate on *122the basis of sexual orientation would be subject to a more rigorous standard of judicial review. That question is not before this Court. The marriage statutes neither infringe upon a fundamental right nor discriminate on the basis of sex or sexual orientation. Accordingly, they must be upheld if they are reasonably related to any legitimate state purpose.
The instant case presents a series of statutory classifications limiting marriage to opposite-sex couples that are not based on a suspect or quasi-suspect characteristic. Furthermore, the classifications do not impermissibly interfere with the exercise of a fundamental right. The classifications “need only rationally further a legitimate state interest to be upheld as constitutional.” (Affronti v Crosson, 95 NY2d 713, 718-719 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001].) Under this deferential standard of review, the marriage-related statutes at issue are presumed to be constitutional, and plaintiffs have the burden of negating “every conceivable basis which might support it . . . whether or not the basis has a foundation in the record. ” (Affronti v Crosson, 95 NY2d at 719 [citation omitted].) Plaintiffs “must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” (Id. [citation and internal quotation marks omitted].) Courts “may even hypothesize the Legislature’s motivation or possible legitimate purpose.” (Id. [citation omitted].) The State “has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” (Id. [citation omitted].) Plaintiffs have failed to carry their burden of proof because they cannot demonstrate that the reservation of marriage to opposite-sex couples is not rationally related to any legitimate state purpose. Accordingly, the lower court’s judgment that the marriage statutes are irrational and invalid is erroneous and should be reversed.
In addition to “preserving the traditional institution of marriage” (Lawrence v Texas, 539 US at 585 [O'Connor, J., concurring in the judgment]), reserving marriage to opposite-sex couples is reasonably related to the State’s interests in ensuring a stable legal and societal framework in which children are procreated and raised, and providing the benefits of dual gender parenting for the children so procreated. Courts in New York *123have traditionally recognized the legitimacy of these interests.4 Moreover, it is evident that same-sex couples cannot procreate by themselves5 or provide dual-gender parenting.6
The motion court denied that marriage, as the union of man and woman, uniquely involves the procreation and raising of children. The court observed that “the long-term union of a man and a woman is no longer the only familial context for raising children.” (7 Misc 3d at 482.) The court noted that lesbians may conceive through artificial insemination and that, under New York law, both gays and lesbians may adopt children, individually, jointly or as second parents in a same-sex relationship. These observations, however, do not recognize the key difference between how most opposite-sex couples become parents, through sexual intercourse, and how all same-sex couples must become parents, through adoption and assisted *124reproduction. (Morrison v Sadler, 821 NE2d 15, 24 [Ind Ct App 2005].)
“Becoming a parent by using ‘artificial’ reproduction methods is frequently costly and time-consuming. Adopting children is much the same. Those persons wanting to have children by assisted reproduction or adoption are, by necessity, heavily invested, financially and emotionally, in those processes. Those processes also require a great deal of foresight and planning. ‘Natural’ procreation, on the other hand, may occur only between opposite-sex couples and with no foresight or planning. All that is required is one instance of sexual intercourse with a man for a woman to become pregnant.” (Id.)
In his dissent in Goodridge v Department of Pub. Health, Justice Cordy wrote that:
“Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined . . . , but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.
“The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents *125of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.” (440 Mass at 381-383, 798 NE2d at 995-996 [citations omitted].)
I note that the reservation of marriage to opposite-sex couples is also rationally related to the State’s interest in providing the benefits of dual-gender parenting. The Legislature could assume that “a recognition of same-sex marriages will increase the number of children experiencing this alternative,” and “conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact- on the upbringing of children are resolved.” (440 Mass at 388, 389, 798 NE2d at 1000 [Cordy, J., dissenting].)
Various amici point out that New York law allows unmarried homosexual couples to adopt. Nevertheless, in reserving marriage to opposite-sex couples, the Legislature reasonably may have believed that the ideal of dual-gender parenting should be preserved whenever possible.
“The fact that the [State] currently allows same-sex couples to adopt . . . does not affect the rationality of this conclusion. The eligibility of a child for adoption presupposes that at least one of the child’s biological parents is unable or unwilling, for some reason, to participate in raising the child. In that sense, society has ‘lost’ the optimal setting in which to raise that child—it is simply not available. In these circumstances, the principal and overriding consideration is the ‘best interests of the child,’ considering his or her unique circumstances and the options that are available for that child. The objective is an individualized determination of the best environment for a particular child, where the normative social structure—a home with both the child’s biological father and mother—is not an option. That such a focused determination may lead to the approval of a same-sex couple’s adoption of a child does not mean that it would be irrational for a legislator, in fashioning statutory laws that cannot *126make such individualized determinations, to conclude generally that being raised by a same-sex couple has not yet been shown to be the absolute equivalent of being raised by one’s married biological parents.” (Goodridge v Department of Pub. Health, 440 Mass at 389, 798 NE2d at 1000 [Cordy, J., dissenting].)
The motion court fundamentally mischaracterized the issue to be decided on rational basis review of the State’s reservation of marriage to opposite-sex couples. The issue is not whether “the indisputably central role that marriage plays in human life . . . would be diminished by allowing same-sex couples to marry,” or “how the marriages of opposite-sex couples will be adversely affected by allowing same-sex couples to marry,” or whether recognition of same-sex marriages would “harm” anyone. (7 Misc 3d at 482, 490.)7 Rather, the issue is “whether the recognition of same-sex marriage would promote all of the same state interests that opposite-sex marriage does, including the interest in marital procreation. If it would not, then limiting the institution of marriage to opposite-sex couples is rational and acceptable under [the Constitution].” (Morrison v Sadler, 821 NE2d at 23.) As the foregoing analysis shows, recognition of same-sex marriage would not promote the State’s interest in marital procreation, particularly unintended procreation from heterosexual intercourse, nor would it promote the State’s interest in dual-gender parenting.
Plaintiffs therefore have failed to demonstrate that New York’s reservation of marriage to opposite-sex couples is not rationally related to multiple legitimate state purposes. For all the foregoing reasons, the motion court’s judgment declaring the statutes unconstitutional should be reversed.
. See Standhardt v Superior Ct. ex rel. County of Maricopa, 206 Ariz 276, 283, 77 P3d 451, 458 (Ct App 2003) (“marriage traditionally has involved opposite-sex partners”); Jones v Hallahan, 501 SW2d 588, 589 (Ky 1973) (“marriage has always been considered as the union of a man and a woman”); Goodridge v Department of Pub. Health, 440 Mass 309, 320, 798 NE2d 941, 953 (2003) (recognizing “the long-standing statutory understanding, derived from the common law, that ‘marriage’ means the lawful union of a woman and a man”); Baker v Nelson, 291 Minn 310, 311, 191 NW2d 185, 185, 186 (1971) (term “marriage” in common usage means “the state of union between persons of the opposite sex”), appeal dismissed for want of a substantial federal question 409 US 810 (1972); De Santo v Barnsley, 328 Pa Super 181, 186, 476 A2d 952, 954 (1984) (“common law marriage is limited to two persons of opposite sex”); Baker v State, 170 Vt 194, 201, 744 A2d 864, 869 (1999) (referring to the “clear legislative assumption” that marriage under state law “consists of a union between a man and a woman”); Singer v Hara, 11 Wash App 247, 253, 522 P2d 1187, 1191 (Ct App 1974) (marriage statutes “clearly founded upon the presumption that marriage, as a legal relationship, may exist only between one man and one woman who are otherwise qualified to enter that relationship”), review denied 84 Wash 2d 1008 (1974); Adams v Howerton, 673 F2d 1036, 1040 (9th Cir 1982) (“term ‘marriage’ ordinarily contemplates a relationship between a man and a woman”), cert denied 458 US 1111 (1982) (immigration case); Dean v District of Columbia, 653 A2d 307, 315 (DC Ct App 1995) (“the ordinary understanding of the word ‘marriage’— both at the turn of the century when the [District of Columbia] statute was enacted and in modern times when that statute was amended—means the union of two members of the opposite sex”).
. The dissent urges that Baker should not be followed because of “important doctrinal developments” evidenced by Lawrence. The Lawrence court specifically declined to address the question of same-sex unions, clearly and unequivocally passing on the chance to raise any new doctrinal development.
. The Vermont Supreme Court’s decision requiring the State to recognize either marriage or its legal equivalent (civil unions) between members of the same sex was based upon a provision in the Vermont Constitution (the “Common Benefits Clause” [Vt Const, ch I, art 7]) for which there is no analog in the New York Constitution.
. Marriage is “the cornerstone of the family and therefore the foundation of organized society.” (45 NY Jur 2d, Domestic Relations § 1, at 96 [1995], citing Matter of Lindgren, 181 Misc 166, 169 [Sur Ct, Kings County 1943] [marriage “provides for our posterity”], affd 293 NY 18 [1944] and Sweinhart v Bamberger, 166 Misc 256, 260 [Sup Ct, NY County 1937] [“(m)arriage is the foundation of the family and society, without which there would be neither civilization nor progress”], affd 254 App Div 665 [1st Dept 1938]; see also Morris v Morris, 31 Misc 2d 548, 549 [Sup Ct, Westchester County 1961] [“(m)arriage is . . . a foundation upon which society depends for its very survival”].)
. See Singer v Hara, 11 Wash App at 259, 260, 522 P2d at 1195 (“marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race” and “no same-sex couple offers the possibility of the birth of children by their union”); Dean v District of Columbia, 653 A2d at 337 (finding that this “central purpose . . . provides the kind of rational basis . . . permitting limitation of marriage to heterosexual couples”); Standhardt v Superior Ct., 206 Ariz at 287-288, 77 P3d at 462-463 (“The State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children. Because same-sex couples cannot by themselves procreate, the State could . . . reasonably decide that sanctioning same-sex marriages would do little to advance the State’s interest in ensuring responsible procreation within committed, long-term relationships.”).
. See Lofton v Kearney, 157 F Supp 2d 1372, 1383 (SD Fla 2001) (“a child’s best interest is to be raised in a home stabilized by marriage, in a family consisting of both a mother and a father”), affd sub nom. Lofton v Secretary of Dept. of Children & Family Servs., 358 F3d 804, 819 (11th Cir 2004) (legislature may reasonably assume that “children benefit from the presence of both a father and mother in the home”), cert denied 543 US 1081 (2005).
. See also Standhardt v Superior Ct., 206 Ariz at 288, 77 P3d at 463 (“Petitioners lastly argue that the State’s limitation of marriage to opposite-sex unions is not reasonably related to its interests in procreation, because excluding same-sex couples from the marriage relationship does not impact procreation. We agree with Petitioners that allowing same-sex couples to marry would not inhibit opposite-sex couples from procreating. But the reasonableness of the State’s position is not dependent on the contrary conclusion. Rather, . . . the State does not have the same interest in sanctioning marriages between couples who are incapable of procreating as it does with opposite-sex couples.”).