Civil marriage is an institution created by the state, and the state makes numerous rights and benefits available to those entering into that status. The denial of these *127rights and benefits to our state’s homosexual residents is contrary to the basic principles underlying our Constitution, our legal system and our concepts of liberty and justice, and perpetuates a deeply ingrained form of legalized discrimination. It misses the point to ask whether the Legislature was purposefully discriminating at the time of its enactment of the challenged statutes. At the time of their enactment the content and purpose of the challenged statutes were founded upon a discriminatory assumption, taken for granted by the Legislature and society generally, that marriage is a right necessarily limited to heterosexuals. The statutes ought to be acknowledged and analyzed as the discriminatory provision they are, and rejected as such.
Plaintiffs, gay men and lesbians involved in long-term romantic and familial relationships with another individual of the same gender, challenge the constitutionality of those provisions of the Domestic Relations Law that, in effect, limit marriage licenses to individuals marrying a person of the opposite gender (see Domestic Relations Law §§ 12, 15 [1] [a]). Specifically, they contend that these statutes violate their rights under both our State Constitution’s Due Process Clause (NY Const, art I, § 6), and its Equal Protection Clause (NY Const, art I, § 11). The determination of their claims requires us to consider an array of issues, including the meaning and scope of the constitutional right to marry, what it encompasses, and to whom it applies.
Due Process
In my view, plaintiffs have established a violation of the liberty interests protected by the Due Process Clause of our State Constitution (NY Const, art I, § 6).
While the New York Constitution’s Due Process Clause has been held to provide broader rights and liberties than those secured by the federal provision, nevertheless, to determine the extent of protections provided by our State Constitution, our courts often begin their analysis by considering as a baseline, the application of the federal Due Process Clause as interpreted in federal case law (see People v LaValle, 3 NY3d 88, 129 [2004]; Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159 [1978]; Matter of Jacobs, 98 NY 98 [1885]).
The law as to what interests fall within the constitutional guarantee of liberty under the Federal Constitution has evolved remarkably over the past century, so that the Due Process Clause now covers a broad array of constitutional protections. *128Rights which had not previously been contemplated have been recognized and declared to be included within this fundamental right under our Constitution. For example, it was not many decades ago that the right to obtain contraceptive devices without governmental interference was recognized (see Griswold v Connecticut, 381 US 479 [1965]; Eisenstadt v Baird, 405 US 438 [1972]; Carey v Population Services Int'l, 431 US 678 [1977]). And, of course, only very recently did the Supreme Court recognize that the Constitution protects the right to engage in private consensual sexual practices of one’s choice, free of governmental prohibitions (see Lawrence v Texas, 539 US 558, 574 [2003])—a conclusion the New York State Court of Appeals reached decades earlier (see People v Onofre, 51 NY2d 476 [1980], cert denied 451 US 987 [1981]). Under current jurisprudence, the liberty protected by the Due Process Clause has been viewed to include generally “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” (Lawrence v Texas, supra at 574; see also People v Onofre at 486).
The right to marry is one of the rights repeatedly recognized during the 20th century as a fundamental right granted by the Due Process Clause. Indeed, the development of case law regarding the right to marry illustrates the derivation of fundamental substantive due process rights from concepts of natural law that preexisted our Constitution. Scholars have recognized that our basic rights are derived from a philosophical tradition of “natural law” that evolved during the 17th and 18th centuries, as expressed in the philosophies of such distinguished thinkers as Montesquieu and John Locke, which postulated that “certain principles of right and justice . . . are entitled to prevail of their own intrinsic excellence” (see Tribe, American Constitutional Law § 8-1, at 560 [2d ed], citing Corwin, The “Higher Law” Background of American Constitutional Law, 42 Harv L Rev 149, 365 [1928]). As other constitutional scholars have explained, “fundamental rights analysis is simply no more than the modern recognition of the natural law concepts first espoused by Justice Chase in Calder v. Bull [3 Dall (3 US) 386 [1798]” (Nowak and Rotunda, Constitutional Law § 11.7, at 433 [6th ed 2000]; see also Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan L Rev 140, 165 [1949] [arguing that the true source of substantive due process is found “in concepts of natural law”]).
The fundamental right to marry was first mentioned by the United States Supreme Court in 1923, in Meyer v Nebraska, *129when it was included in a list of the liberty rights guaranteed by the Due Process Clause of the Fourteenth Amendment (262 US 390, 399 [1923]).1 Then, in Skinner v Oklahoma ex rel. Williamson (316 US 535, 541 [1942]), in holding that Oklahoma’s Habitual Criminal Sterilization Act violated the Equal Protection Clause since it applied to perpetrators of certain kinds of larceny and not others, the Court termed the right to marry, along with the right to procreate, among the “basic civil rights of man.”
Then, in Loving v Virginia (388 US 1 [1967]), the Supreme Court struck down miscegenation laws, which had prohibited marriage between Caucasians and individuals of other races.2 While the analysis employed in Loving primarily focused upon the invidious racial discrimination in the statutes’ classifications, recognizing them as a blatant violation of the Equal Protection Clause, the Court added that because the laws interfered with the right to marry, they constituted a due process violation as well:
“These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” (id. at 12).
“[T]he fundamental character of the right to marry” was relied upon in Zablocki v Redhail (434 US 374, 386 [1978]) in overturning a Wisconsin statute that required any state residents who had child support obligations to obtain court approval before getting married. Not long after, the Court reiterated the fundamental nature of the right to marry in Turner v Safley (482 US 78, 95-97 [1987]), in striking down a regulation interfering with the right of a prison inmate to marry.
The New York State Constitution’s Due Process Clause also independently protects the “fundamental right to marriage and *130family life” (see Cooper v Morin, 49 NY2d 69, 80 [1979], cert denied sub nom Lombard v Cooper, 446 US 984 [1980]), and this right has similarly been relied upon to protect an array of personal and home life decisions. Notably, in Cooper v Morin, the Court, relying on the fundamental rights to marriage and family life and to hear and rear children, held that pretrial jail detainees’ rights to direct contact visits, although not protected by the Due Process Clause of the Federal Constitution, are protected by the Due Process Clause of the State Constitution (id. at 73, 81-82; see also McMinn v Town of Oyster Bay, 66 NY2d 544, 547, 549-550 [1985] [zoning ordinance struck down, as violative of the state Due Process Clause, because its definition of “family” was not reasonably related to any legitimate purpose of the ordinance]). Moreover, New York’s guarantee of liberty has specifically been held to afford New Yorkers a fundamental right of privacy (see Hope v Perales, 83 NY2d 563, 575 [1994]).
It is therefore unassailable that the Due Process Clause of New York’s Constitution, like the Federal Constitution, protects, as fundamental, the right to marry, and more particularly, to marry the person of one’s choosing (see Crosby v State of N.Y., Workers' Compensation Bd., 57 NY2d 305, 312 [1982], citing Loving v Virginia, 388 US at 12 [the right to privacy protected by the Due Process Clause encompasses “the decision of whom one will marry”]). Nevertheless, defendant suggests that the right to marry may constitutionally be limited to someone who is a member of the opposite gender. I submit that, as the Supreme Judicial Court of Massachusetts observed, “As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare” (Goodridge v Department of Pub. Health, 440 Mass 309, 327-328, 798 NE2d 941, 958 [2003]).
To argue that despite the essential nature of the right to marry, there is no fundamental right to same-sex marriage specifically, is to frame the issue too narrowly. It is instructive to consider the United States Supreme Court’s 2003 decision in Lawrence v Texas (supra), which struck down a Texas law prohibiting sodomy between consenting adults of the same gender, overruling its earlier decision in Bowers v Hardwick (478 US 186 [1986]). I recognize that Lawrence is not controlling on this point, as the Court there explicitly stated that “[the *131case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter” (539 US at 578). Nevertheless, the Court’s criticism of the analysis used in the earlier Bowers decision is on point. In particular, the Court explained that by framing the question presented as whether homosexuals have a fundamental right to engage in sodomy (see 478 US at 191), the Bowers court misapprehended the issue to be addressed (see Lawrence, 539 US at 566-567).
The same analytical problem occurs here if we frame the question as to whether there is a fundamental right to same-sex marriage. To pose the question that narrowly is to ensure that the answer must be no. However, here, as in Lawrence, a fundamental liberty right exists, and the only remaining question is whether this particular group of individuals will be permitted to claim this right. In Lawrence, the right at issue was not the right to engage in sodomy, but “the full right to engage in [private consensual sexual] conduct without intervention of the government” (539 US at 578); here, we must approach the question not by asking whether there is a fundamental right to same-sex marriage, but by considering the spectrum of rights that have already been held to fall within the fundamental liberty interests promised by the Constitution.
Under that umbrella, we must look at the established, fundamental right to marry, which, as Loving illustrates, includes the right to choose one’s spouse. The right claimed by plaintiffs here, to marry the person of their choosing regardless of the gender of the intended spouse, is analogous to the right applied by the Court in Loving,3 Just as the Loving court was not recognizing a new fundamental right to interracial marriage, but merely enforcing the long-existent, fundamental right to marry the person of one’s choice regardless of either individual’s race, plaintiffs here are not asking for a new fundamental right to same-sex marriage, but only that they not *132be excluded from the constitutional protection of the right to choose one’s spouse.
Many argue that it is the very definition of the word marriage that imposes the limitation. They suggest that there is no denial of a fundamental right here, since marriage by definition involves one man and one woman. I suggest that, instead, there has existed a longstanding assumption, which has only recently been called into question—that marriage necessarily involves a man and a woman. Once such an assumption is challenged, it must be examined to determine whether it is valid, or just a vestige of another time.
The common understanding of the term marriage has not always been what it is today. The institution of marriage has changed remarkably over the centuries. Long ago it essentially involved a man’s acquisition of a woman who functioned as chattel, servant, and producer of children, which children then also became the property of the man. As recently as the mid-19th century, the institution was still defined by the doctrine of coverture, by which a wife’s legal identity was essentially merged into that of her spouse (see 1 Blackstone, Commentaries on the Laws of England, at 430 [1966 ed]; Briggs v Mitchell, 60 Barb 288 [Sup Ct, NY County 1864]).
But, these long-accepted assumptions that once defined marriage have eroded. Over time, many of the patriarchal underpinnings of marriage, such as the “common-law doctrines that a woman was the property of her husband and that the legal existence of the woman was ‘incorporated and consolidated into that of the husband’ ” have been rejected entirely (see People v Liberta, 64 NY2d 152, 164 [1984], quoting Blackstone, supra [other citations omitted], cert denied 471 US 1020 [1985]). The strictly defined gender roles that once dictated the discrete functions of each member of a married couple are no longer hard and fast (see generally Kay, From the Second Sex to the Joint Venture: An Overview of Women's Rights and Family Law in the United States During the Twentieth Century, 88 Cal L Rev 2017, 2090 [2000]; Shapiro, “Non-Traditional” Families in the Courts: The New Extended Family, 11 J Am Acad Matrimonial Law 117 [1993]).
As the institution of marriage has been redefined within modern American society, the law has adjusted accordingly. Indeed, the law and policy of this State have adopted a definition of “family” that includes same-sex couples (see e.g. Braschi v Stahl Assoc. Co., 74 NY2d 201 [1989]). It is fair to say that both the *133law and the population generally now view marriage, at least in the abstract ideal, as a partnership of equals with equal rights, who have mutually joined to form a new family unit, founded upon shared intimacy and mutual financial and emotional support. In the face of such a widely held view, the gender of the two partners to a marriage is no longer critical to its definition.
To base a ruling, as did the Minnesota Supreme Court in Baker v Nelson, on the observation that “[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis” (291 Minn 310, 312, 191 NW2d 185, 186 [1971], appeal dismissed 409 US 810 [1972]), fails to recognize the extent to which the fundamental characteristics of the institution have changed, and continue to change, over time. Indeed, the reliance placed by the majority in this case on the term “traditional marriage” to justify its ruling, reflects a determined effort to avoid acknowledging these fundamental changes in the institution of marriage as well as in our society generally.
It is not enough to respond that people have always contemplated opposite-sex couples in relation to the term marriage. Over and over again, assumptions previously taken for granted have been overturned in the context of constitutional law, as society evolves. Indeed, “[a] prime part of the history of our Constitution ... is the story of the extension of constitutional rights and protections to people once ignored or excluded” (United States v Virginia, 518 US 515, 557 [1996]).
For example, state laws imposing racial segregation were based on the assumption that the races were intended to coexist in separate spheres (see Loving, 388 US at 3 [quoting opinion of trial judge]; and see Plessy v Ferguson, 163 US 537 [1896], overuled by Brown v Board of Education, 347 US 483 [1954]). Similarly, discrimination against women was often based upon the asserted belief that women were fundamentally incapable of the functions of men. In 1872, when the United States Supreme Court affirmed a decision by the Illinois Supreme Court refusing to grant a married woman a license to practice law (see Bradwell v State, 16 Wall [83 US] 130 [1872]), the three-judge concurrence emphasized that a married woman had no legal existence apart from her husband, rendering her incapable of entering into contracts (id. at 141 [Bradley, J., concurring]). Indeed, this oft-quoted concurring opinion relied upon “[t]he paramount destiny and mission of woman ... to fulfil the noble *134and benign offices of wife and mother,” which it considered “the law of the Creator” (id.). It was not until approximately a century later that the Supreme Court recognized the “long and unfortunate history of sex discrimination” inherent in such case law as the Bradwell decision and concurrence (see Frontiero v Richardson, 411 US 677, 684 [1973]).
So, although it may he safe to assume that in each of the Supreme Court cases regarding the right to marry, the courts issuing the opinions viewed the term marriage as referring to a man and a woman, the assumptions of previous generations should not be relied upon to limit acknowledged rights to only those categories of people to whom those rights have already been applied.
“[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress” (Lawrence v Texas, 539 US at 579). Given both the developing law regarding the rights inherent in the due process guarantee of liberty, and our current understanding of the definition and purpose of marriage, it is appropriate to now recognize that limiting the fundamental right to marry to those whose intended spouses are of the opposite sex denies a substantive right to a substantial minority of individuals.
Employing the reasoning that marriage must be limited to heterosexuals because that is what the institution has historically been, merely justifies discrimination with the bare explanation that it has always been this way. As the concurring justice remarked in Goodridge (440 Mass at 348, 798 NE2d at 972-973 [Greany, J., concurring]), “To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide.”
My colleagues, like defendant here, assert that it is solely up to the Legislature to decide whether and when to extend the right to marry to same-sex couples. This contention assumes that the limitation of marriage to opposite-sex couples constitutes merely a legitimate exercise of the State’s authority to regulate marriage, in the same manner as it does by setting limitations in such areas as age and consanguinity.
However, the exclusion created by the challenged statutory provisions is far more than a mere regulatory provision. It is a denial to a definable group of individuals, namely, homosexuals, of a right that has been held to be fundamental when applied to *135heterosexuals. Notably, even regulations restricting the right to marriage of those with outstanding child support obligations, or of incarcerated convicted felons, were struck down as interfering with a fundamental right (see Zablocki, 434 US at 383-391; Turner v Safley, 482 US at 95-97). This exclusion of a particular group from a defined fundamental right must be corrected by the courts.
As Professor Laurence Tribe explains:
“The fatal flaw of this legislative solution’ argument is that it presumes that fundamental rights can properly be reduced to political interests. . . . ‘The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy. . . . [Fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . .’ As in the case of racial segregation, it is often when public sentiment is most sharply divided that the independent judiciary plays its most vital national role in expounding and protecting constitutional rights” (Tribe, American Constitutional Law § 15-10, at 1351 [2d ed], quoting West Virginia Bd. of Ed. v Barnette, 319 US 624, 638 [1943]).
It has often been noted that one of the functions of the federal and state constitutions is to safeguard minorities against the tyranny of the majority (see Wright, Two Models of Constitutional Adjudication, 40 Am U L Rev 1357, 1386 n 182 [1991], citing Ely, Democracy and Distrust, at 135-179 [1980] and Eule, Judicial Review of Direct Democracy, 99 Yale LJ 1503, 1508 [1990]). It is precisely because we cannot expect the Legislature, representing majoritarian interests, to act to protect the rights of the homosexual minority, that our courts must take the necessary steps to acknowledge and act in protection of those rights.
Moreover, the assumption that
“a majority of citizens has the right to insure by legal fiat that marriage continue to have its historical associations . . . contradicts a very basic principle of human dignity, which is that no person or group has the right deliberately to impose personal ethical values—the values that fix what counts as a successful and fulfilled life—on anyone else” (Dworkin, Who Should Shape Our Culture?, 15 The Law *136School [NYU School of Law magazine] 20, 21 [Autumn 2005]).
The Due Process Clause prohibits states from infringing “ ‘fundamental’ liberty interests . . . , unless the infringement is narrowly tailored to serve a compelling state interest” (Washington v Glucksberg, 521 US 702, 721 [1997]). No such compelling state interest is demonstrated here.
As to the argument that this particular right, even if called “fundamental,” qualifies only for rational basis scrutiny because it is not “deeply rooted in this Nation’s history and tradition” (see Washington v Glucksberg, supra), the right at issue is the right to marriage, and few rights are more deeply rooted than that.
Equal Protection
Plaintiffs’ equal protection claim is also meritorious.
Initially, defendant would have this Court reject the equal protection claim at the outset, based purely upon the determination by the Minnesota Supreme Court that Minnesota’s exclusion of same-sex couples from the right to marry did not violate the federal Equal Protection Clause, which appeal to the United States Supreme Court was dismissed in 1972 for want of a substantial federal question (see Baker v Nelson, 291 Minn 310, 191 NW2d 185 [1971], appeal dismissed 409 US 810 [1972]). Defendant contends that because such a dismissal has precedential value (see Hicks v Miranda, 422 US 332 [1975]), the decision establishes the federal rule on this particular point. Defendant’s reasoning continues that this precedent must be followed in interpreting our State Constitution because the Court of Appeals has remarked that the State Constitution’s Equal Protection Clause “is no broader in coverage than the Federal provision” (see Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 360 n 6 [1985]).
Defendant’s argument should be rejected. Notwithstanding the Court’s remark regarding the coverage of the State Constitution’s Equal Protection Clause, New York requires an independent state constitutional analysis. “Despite an identity of text and history, the Court of Appeals on occasion has concluded that greater rights should be accorded under the Equal Protection Clause of the State Constitution” (Kaye, Dual Constitutionalism in Practice and Principle, 61 St John's L Rev 399, 416 n 60 [1987]). Moreover, in light of recent developments in the law of equal protection, it would amount to an abdication *137of our responsibility to base our ruling upon a 1972 dismissal of an appeal from the Minnesota Supreme Court’s decision in Baker v Nelson. While summary dismissals operate as federal precedent, they should not be followed when subsequent “ ‘doctrinal developments indicate otherwise’ ” (see Hicks v Miranda, 422 US at 344). Here, there have been important doctrinal developments in the area of federal equal protection since Baker v Nelson, including Lawrence v Texas (supra) and Romer v Evans (517 US 620 [1996]). Indeed, in Romer, the Court held that the Equal Protection Clause was violated by an amendment to the Colorado Constitution that prohibited legislative, executive, or judicial action at any level of state or local government designed to protect homosexual persons from discrimination; it said that the amendment “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws” (517 US at 635). Furthermore, by explaining in its decision in Lawrence v Texas that it was not deciding “whether the government must give formal recognition to any relationship that homosexual persons seek to enter” (539 US at 578), the Court in effect indicated that it did not view as already decided the issue of whether same-sex couples have the constitutional right to marry.
Where a colorable argument is made that a law denies the equal protection of law to a particular group of individuals, the first determination to be made is the level of scrutiny.
It has been held that when a statute discriminates against a “suspect class[ ]” it is subjected to strict scrutiny, by which the state must demonstrate that the enactment was narrowly drawn and that it serves a compelling interest (see Regents of Univ. of Cal. v Bakke, 438 US 265, 357 [1978] [plurality op]; see also Hodgson v Minnesota, 497 US 417, 463 [1990] [Marshall, J., concurring in part and dissenting in part]). In general, this standard of review is used for laws that classify people on the basis of their status as members of a racial minority or on the basis of their national origin (see Nowak and Rotunda, Constitutional Law § 14.3, at 640 [6th ed]).
An intermediate standard of review, referred to as the “heightened scrutiny” standard, is applied when a viable claim is made under the Equal Protection Clause that the challenged law has a negative impact upon a “discrete and insular minor-it[y]” which is being shut out of the political process (see Matter of Aliessa v Novello, 96 NY2d 418, 431 [2001], quoting United *138States v Carolene Products Co., 304 US 144, 153 n 4 [1938]). This standard has been applied since 19764 to gender discrimination cases. Under this standard, a classification will only be upheld if it “serve[s] important governmental objectives and [is] substantially related to achievement of those objectives” (see Craig v Boren, 429 US 190, 197 [1976]; see also United States v Virginia, 518 US 515, 533 [1996]; People v Liberta, 64 NY2d at 168).
This heightened scrutiny standard is the one that ought to be employed in this instance, for two reasons. First, the discrimination caused by the challenged statutes here, on the basis of the parties’ sexual orientation, properly falls within the broader category of gender discrimination (see Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 NYU L Rev 197 [1994]). To illustrate, a woman who seeks to marry another woman is denied that right because she is not a man. That the law equally denies both sexes the right to marry one of their own gender does not remove it from the category of gender discrimination, just as equally denying members of different races the right to marry someone of another race is still race discrimination (see Loving v Virginia, 388 US at 8).
Secondly, even if classifying individuals on the basis of their sexual orientation were completely distinguishable from gender discrimination, the heightened scrutiny standard should nevertheless apply. Applying the framework laid out in United States v Carolene Products Co. (304 US at 152-153 n 4), as recognized by the Court of Appeals in Matter of Aliessa v Novello (96 NY2d at 431), homosexuals as a class fall well within the category of a “discrete and insular minorit[y]” which is being shut out of the political process. It cannot be seriously disputed that homosexuals have long been subjected to purposeful discrimination, and— particularly in view of the spate of “Defense of Marriage Acts” being enacted around the country—that the group has been unable to protect itself through the political process (see Note, Heightened Scrutiny Under the Equal Protection Clause: A Remedy to Discrimination Based on Sexual Orientation, 42 Drake L *139Rev 485, 500 [1993]; Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S Cal L Rev 797 [1984]). To the extent some of the amici who presented briefs to this Court cite Justice Scalia’s remark in his dissenting opinion in Romer v Evans, that homosexuals as a group “possess political power much greater than their numbers” (517 US at 646) and “have high disposable income” (id. at 645), I reject any implication that these purported facts establish the group’s ability to protect itself from discrimination. Nor do the strides that have been made against discrimination establish that the group has been able to protect itself through the political process; they establish that in some quarters the existence of, and need to combat, such discrimination has been perceived.
Nor does it avail defendant that the challenged statutes were not enacted with the express purpose and intent of discriminating against homosexuals. The discriminatory impetus for the distinction made by the statutes, by which heterosexual couples were viewed as entitled to a benefit from which homosexual couples were excluded, was at the time of enactment so deeply embedded as to be taken for granted by the Legislature. There was no need for an express statement that the Legislature intended to discriminate against homosexuals, or same-sex couples; that intent was implicit.
I recognize that up to now federal courts have generally rejected the use of the heightened scrutiny standard for sexual orientation discrimination claims, and instead applied the rational basis test to such claims (see e.g. Thomasson v Perry, 80 F3d 915 [4th Cir 1996], cert denied 519 US 948 [1996]; Jantz v Muci, 976 F2d 623 [10th Cir 1992], cert denied 508 US 952 [1993]; High Tech Gays v Defense Indus. Sec. Clearance Off., 895 F2d 563 [9th Cir 1990]; Ben-Shalom v Marsh, 881 F2d 454, 464 [7th Cir 1989], cert denied sub nom. Ben-Shalom v Stone, 494 US 1004 [1990]; Woodward v United States, 871 F2d 1068, 1076 [Fed Cir 1989], cert denied 494 US 1003 [1990]). However, these cases preceded Romer and Lawrence, and relied largely upon the now-overruled Bowers v Hardwick decision, reasoning that since Bowers permitted the prosecution of homosexuals for acts of sexual intimacy, it would be incongruous to deem them members of a protected or suspect class. Of course, the overruling of Bowers completely undercuts this reasoning.
While one court of this State has ruled that the rational basis standard applied to an equal protection claim by a same-sex do*140mestic partner seeking “surviving spouse” protection under the EPTL (see Matter of Cooper, 187 AD2d 128, 133 [2d Dept 1993]), this ruling was similarly made before Lawrence and Romer. Moreover, the Court in Cooper relied upon Baker v Nelson (291 Minn at 311, 191 NW2d at 185), the Minnesota decision rejecting a constitutional challenge to the ban on same-sex marriage, on which the Supreme Court dismissed the appeal for want of a substantial federal question (409 US 810 [1972]); as discussed earlier, the continuing viability of that ruling as precedent is also in doubt in view of intervening Supreme Court decisions.
When the heightened scrutiny test is applied, the burden is on the proponent of the statute to show both the existence of an important governmental objective served by the statute, and the substantial relationship between the discriminatory effect of the statute and that objective (see United States v Virginia, 518 US at 533; People v Liberta, 64 NY2d at 168). We must therefore consider whether defendant has shown that the exclusion of same-sex couples from the marriage laws serves important governmental objectives and is substantially related to achievement of those objectives.
There is no showing here of how the exclusion actually tends to achieve any such important objective. The governmental objective focused on by defendant revolves around encouraging procreation by opposite-sex couples within the context of marriage. Some amici suggest that the challenged statutes properly promote heterosexual marriage, as the institution that best normalizes and stabilizes the acts of procreation and child rearing. Indeed, it is asserted—within the context of the rational basis test—that “[b]ecause same-sex couples cannot by themselves procreate, the State could also 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 Standhardt v Superior Ct. ex rel. County of Maricopa, 206 Ariz 276, 288, 77 P3d 451, 463 [Ct App 2003]). However, accepting for argument’s sake the merit of encouraging heterosexual couples to have children in the context of marriage rather than outside of it, for the stability of the family and the benefit of the children, it remains unexplained how this proposed interest is advanced by excluding same-sex couples from marrying.
Promoting the welfare of children is also offered as an objective of the challenged laws. This interest certainly qualifies as an important objective; however, that objective is not substan*141tially related to the discriminatory effect of the statutes. Some amici quote from a dissenting opinion in Goodridge, which refers to studies that “document negative consequences that . . . follow children either born outside of marriage or raised in households lacking either a father or a mother figure,” and “scholarly commentary contending that children and families develop best when mothers and fathers are partners in their parenting” (Goodridge, 440 Mass at 386-387, 798 NE2d at 998-999 [Cordy, J., dissenting]). However, assertions such as these are undermined by the American Psychological Association (APA), which declares that review of the best empirical research available, after evaluating the methodology of each study, reflects that these asserted negative consequences for children raised in same-sex rather than opposite-sex households find no support in the scientific literature (citing e.g. Stacey and Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 Am Soc Rev 159 [2001]). The APA explains its conclusion that it is the quality of the parenting, rather than the parents’ gender or sexual orientation, that determines children’s psychological and social adjustment. The children of same-sex couples fare as well as the children of opposite-sex couples, and, indeed, in a study by the American Academy of Pediatrics, the children of same-sex couples showed no gender identity confusion (see Perrin and Committee on Psychosocial Aspects of Child and Family Health, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 [2002]).
As to any asserted important objective in protecting the traditional institution of marriage, there is no reason to conclude that excluding same-sex couples from the institution is substantially related to any such governmental concern, since it is not apparent how allowing same-sex couples to marry will have any effect on the continued survival of the institution itself, or even its ongoing vitality among heterosexuals. Marriage remains, for all those permitted to enter into it, a “social resource of irreplaceable value . . . [which] enables people together to create value in their lives that they could not create if that institution had never existed” (Dworkin, Who Should Shape Our Culture?, at 20).
While some people, including some amici organizations here, assert that “traditional marriage” between men and women will be negatively impacted by allowing same-sex couples to marry, it should be recognized that at one time, some people believed that marriage—and society—would be destroyed if *142whites were allowed to marry blacks (see e.g. Naim v Naim, 197 Va 80, 88, 84, 87 SE2d 749, 755, 752 [1955] [describing interracial marriage as “harmful to good citizenship” and miscegenation laws protective of the “peace and happiness” of all races], vacated 350 US 891 [1955], adhered to 197 Va 734, 90 SE2d 849 [1956]). There is no convincing basis supporting the conclusion that excluding same-sex couples from marrying will substantially assist in achieving the protection of the institution generally.
Sometimes a related but slightly more insidious phrasing of this interest in protecting traditional marriage is articulated as an interest in preserving traditional views of marriage, or preserving the traditional definition of marriage. Rephrased, this would translate to a governmental objective of ensuring that everyone consider marriage to be exclusively a heterosexual institution. Even assuming that the state might have a legitimate interest in preserving the institution of marriage, as an important cornerstone of our social framework, that interest must be distinguished from a desire to preserve traditional assumptions about gender roles. It is marriage itself, the institution by which two individuals join together to form a family unit, that contains the virtues the state may legitimately seek to protect. The traditional limitation of that institution to heterosexual couples is not similarly valuable.
To accept as an “important government objective” the preservation of the “traditional view” of marriage as exclusively heterosexual would be tantamount to accepting the legitimacy of a government proclamation that it has a preference for heterosexuals and intends to enact laws to further that preference. Regardless of whether some, or even many people believe that heterosexuals should be given preferred treatment and provided with institutions and benefits to protect their interests, such a proclamation by the government would be an act of discrimination on the part of the government on a par with the Colorado amendment invalidated in Romer v Evans (supra). “ ‘[A] bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest’ ” (Romer, 517 US at 634, quoting Department of Agriculture v Moreno, 413 US 528, 534 [1973]). It certainly cannot be accepted as an important governmental objective.
Moreover, a governmental policy of encouraging procreation in the context of marriage and discouraging nonheterosexuals from forming families and having children, would amount to a *143statement that we, as a state, choose to give preference to heterosexuals. Such a policy would be contrary to the policies underlying Matter of Jacob (86 NY2d 651 [1995]) and Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]), which accept the practical reality that the nature of contemporary family units has changed, and which hold that available rights and protections should cover actual, rather than merely traditional, families.
An explicit policy giving preference to heterosexual couples would also have to be rejected if viewed as an expression of the Legislature’s, or the public’s, moral beliefs or biases. In Lawrence v Texas, while acknowledging the extent to which the anti-sodomy laws were shaped by religious beliefs and “profound and deep convictions accepted as ethical and moral principles,” the Court explained that “ ‘[o]ur obligation is to define the liberty of all, not to mandate our own moral code’ ” (539 US at 571, quoting Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 850 [1992]). Indeed, the Lawrence court majority concluded by adopting the reasoning offered in Justice Stevens’ dissent in Bowers: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack” (539 US at 577-578).
Although I have concluded that the heightened scrutiny test is the proper standard to apply, I recognize that the Supreme Court used rational-basis-test language in striking down the Colorado amendment denying protections to homosexuals (see Romer v Evans, 517 US 620 [1996]). But, the mere use of the “legitimate basis” language does not support the deduction that the Court held the rational basis test to be the correct approach. Rather, the Court there needed to go no further than the most deferential standard, because it emphatically concluded that a provision which exists only in order to disqualify a class of persons from the right to seek specific protection from the law has no legitimate basis (id. at 632-633).
However, even if, for argument’s sake, we were to adopt the rational basis test as applicable here, that standard is not satisfied. What it comes down to, is this: is there a legitimate state interest in giving only certain individuals, i.e. opposite-sex couples, the right to enter into civil marriage, with all that institution’s attendant benefits? Although the rational basis standard is far more deferential, requiring merely that the stat*144ute bear a rational relationship to any5 legitimate state interest, nevertheless, the statutes’ implicit denial to homosexuals of the right to marry the individuals of their choice has no rational relationship to any legitimate state interest.
While various possible interests have been suggested, in this case and elsewhere, none successfully serves the purpose. As to some, the challenged statutes do nothing to actually advance the claimed state interest, while others are simply not acceptable as legitimate reasons for enactment of a statute, inasmuch as they are essentially a mere expression of bias.
Defendant posits that, inasmuch as it is only heterosexual couples who procreate unintentionally, the State has a legitimate particularized interest in fostering marriage between heterosexual couples, in order to promote a stable environment for children born as the result of opposite-sex unions. But, the statute does not do this. Authorizing marriage only for opposite-sex couples does nothing to ensure that children born as the result of opposite-sex unions are raised in a stable family unit by both parents. What the statute does is to merely make it possible for opposite-sex couples to enter into a civil marriage sanctioned by the State. This availability of the institution to opposite-sex couples neither encourages opposite-sex couples to choose to mariy, nor encourages them to procreate only within marriage.
Moreover, an avowed interest in promoting procreation within marriage as a means of best protecting children presumes that children are biologically created in only one way, through sex between one man and one woman. To offer this principle as a rational basis for the statutes’ limitation presumes that encouraging such couples to form a permanent family bond through marriage, will in turn best protect society’s children by ensuring that they will be raised in a stable household by both biological parents. In fact, due to technological advances, along with undisputable changes in our society, this underlying assumption is now far from universal. While opposite-sex marriages are failing at alarming rates, leaving many children of those marriages in embattled one-parent homes, many other children are being conceived in ways that do not fall within this traditional framework, for instance, by a mother and an anonymous sperm donor, or a father and an anonymous egg donor and a surrogate mother. The stability of the families in which *145these children are raised is equally important regardless of the process by which the children were conceived, or its participants. And the protection of society’s children by promoting their being raised in stable homes bears virtually no relationship to limiting the availability of marriage to heterosexuals only.
There would be greater logic in arguing that there is a governmental interest in giving preferred status to heterosexual couples, based upon a belief that society would rather have children born and raised within families created by opposite-sex couples. However, it is not surprising that defendant does not offer such a policy, since if it were expressed, such a preference to heterosexuals would be an acknowledgment of purposeful discrimination, contrary to the policies underlying such decisions as Matter of Jacob (86 NY2d 651 [1995]) and Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]).
“One of the most important purposes to be served by the Equal Protection Clause is to ensure that ‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government” (People v Santorelli, 80 NY2d 875, 881 [1992]). What is really at issue here is whether the State may properly dictate that a segment of its residents may not marry the person of their choice. It is time to acknowledge that the limitations being imposed on gay men and lesbians here violate the Constitution’s promise of equal protection.
I would therefore affirm the determination of the IAS court.
Marlow and Sweeny, JJ., concur with Williams, J.; Catterson, J., concurs in a separate opinion; Saxe, J.P., dissents in a separate opinion.
Order and judgment, Supreme Court, New York County (Doris Ling-Cohan, J.), entered February 7, 2005, reversed, on the law, without costs, the judgment vacated, plaintiffs’ motion for summary judgment denied, defendant’s cross motion for summary judgment granted and a declaration issued in defendant’s favor that Domestic Relations Law §§ 10, 12 and 15 (l)(a), and the other relevant sections of the Domestic Relations Law at issue, are constitutional and valid.
. The Fourteenth Amendment guarantee that “No state shall. . . deprive any person of life, liberty, or property, without due process of law” was said in Meyer v Nebraska to “denote[ ] not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (262 US at 399).
. Notably, in 1948 the California Supreme Court came to the same conclusions as the Supreme Court later did in Loving (see Perez v Sharp, 32 Cal 2d 711, 198 P2d 17 [1948]).
. Some have suggested that it is improper to cite to, or rely on, civil rights cases such as Loving v Virginia in circumstances involving laws which limit rights on the basis of individuals’ sexual orientation (see e.g. Kmiec, The Procreative Argument for Proscribing Same-Sex Marriage, 32 Hastings Const LQ 653, 671-672 [Fall-Winter 2004-2005]). I disagree. Our nation’s shameful history of slavery and the difficult, ongoing battle to eradicate the legacy of that institution, is what justifies using the strictest scrutiny when examining laws creating racial classifications. Nevertheless, the legal reasoning of those decisions is appropriately considered, even if not directly applicable, when statutes create other types of discriminatory classifications.
. In one 1973 case the Supreme Court applied strict scrutiny in a case of sex discrimination, stating that “classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny” (see Frontiero v Richardson, 411 US at 688), but the subsequent sex discrimination cases appear to have implicitly modified that statement.
. Indeed, the court may hypothesize on its own the Legislature’s motivation or possible legitimate purpose (see Affronti v Crosson, 95 NY2d 713, 719 [2001], cert denied sub nom Affronti v Lippman, 534 US 826 [2001]).