(concurring). I agree with the result reached by the court, the remedy ordered, and much of the reasoning in the court’s opinion. In my view, however, the case is more directly resolved using traditional equal protection analysis.
(a) Article 1 of the Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution, provides:
“All people are bom free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”
This provision, even prior to its amendment, guaranteed to all people in the Commonwealth — equally — the enjoyment of rights that are deemed important or fundamental. The withholding of relief from the plaintiffs, who wish to marry, and are *345otherwise eligible to marry, on the ground that the couples are of the same gender, constitutes a categorical restriction of a fundamental right. The restriction creates a straightforward case of discrimination that disqualifies an entire group of our citizens and their families from participation in an institution of paramount legal and social importance. This is impermissible under art. 1.
Analysis begins with the indisputable premise that the deprivation suffered by the plaintiffs is no mere legal inconvenience. The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference. See Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (“the right to marry is of fundamental importance for all individuals”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (freedom to marry is “one of the vital personal rights essential to the orderly pursuit of happiness by free men” under due process clause of Fourteenth Amendment); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage is one of “basic civil rights of man”). See also Turner v. Safley, 482 U.S. 78, 95-96 (1987) (prisoners’ right to marry is constitutionally protected). This right is essentially vitiated if one is denied the right to marry a person of one’s choice. See Zablocki v. Redhail, supra at 384 (all recent decisions of United States Supreme Court place “the decision to marry as among the personal decisions protected by the right of privacy”).1
Because our marriage statutes intend, and state, the ordinary understanding that marriage under our law consists only of a union between a man and a woman, they create a statutory classification based on the sex of the two people who wish to marry. See Baehr v. Lewin, 74 Haw. 530, 564 (1993) (plurality opinion) (Hawaii marriage statutes created sex-based classification); Baker v. State, 170 Vt. 194, 253 (1999) (Johnson, J., concurring in part and dissenting in part) (same). That the classification is *346sex based is self-evident. The marriage statutes prohibit some applicants, such as the plaintiffs, from obtaining a marriage license, and that prohibition is based solely on the applicants’ gender. As a factual matter, an individual’s choice of marital partner is constrained because of his or her own sex. Stated in particular terms, Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell because he (Gary) is a man. Only their gender prevents Hillary and Gary from marrying their chosen partners under the present law.2
A classification may be gender based whether or not the challenged government action apportions benefits or burdens uniformly along gender lines. This is so because constitutional protections extend to individuals and not to categories of people. Thus, when an individual desires to marry, but cannot marry his or her chosen partner because of the traditional opposite-sex restriction, a violation of art. 1 has occurred. See Commonwealth v. Chou, 433 Mass. 229, 237-238 (2001) (assuming statute enforceable only across gender lines may offend Massachusetts equal rights amendment). I find it disingenuous, at best, to suggest that such an individual’s right to marry has not been burdened at all, because he or she remains free to chose another partner, who is of the opposite sex.
The equal protection infirmity at work here is strikingly similar to (although, perhaps, more subtle than) the invidious discrimination perpetuated by Virginia’s antimiscegenation laws *347and unveiled in the decision of Loving v. Virginia, supra. In its landmark decision striking down Virginia’s ban on marriages between Caucasians and members of any other race on both equal protection and substantive due process grounds, the United States Supreme Court soundly rejected the proposition that the equal application of the ban (i.e., that it applied equally to whites and blacks) made unnecessary the strict scrutiny analysis traditionally required of statutes drawing classifications according to race, see id. at 8-9, and concluded that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” Id. at 12. That our marriage laws, unlike antimiscegenation laws, were not enacted purposely to discriminate in no way neutralizes their present discriminatory character.
With these two propositions established (the infringement on a fundamental right and a sex-based classification), the enforcement of the marriage statutes as they are currently understood is forbidden by our Constitution unless the State can present a compelling purpose furthered by the statutes that can be accomplished in no other reasonable manner.3 See Blixt v. Blixt, 437 Mass. 649, 655-656 (2002), cert, denied, 537 U.S. 1189 (2003); Lowell v. Kowalski, 380 Mass. 663, 667-669 (1980). This the State has not done. The justifications put forth by the State to sustain the statute’s exclusion of the plaintiffs are insufficient for the reasons explained by the court, to which I add the following observations.
The rights of couples to have children, to adopt, and to be foster parents, regardless of sexual orientation and marital status, are firmly established. See E.N.O. v. L.M.M., 429 Mass. 824, 829, cert, denied, 528 U.S. 1005 (1999); Adoption of Tammy, 416 Mass. 205, 210-211 (1993). As recognized in the court’s opinion, and demonstrated by the record in this case, however, *348the State’s refusal to accord legal recognition to unions of same-sex couples has had the effect of creating a system in which children of same-sex couples are unable to partake of legal protections and social benefits taken for granted by children in families whose parents are of the opposite sex. The continued maintenance of this caste-like system is irreconcilable with, indeed, totally repugnant to, the State’s strong interest in the welfare of all children and its primary focus, in the context of family law where children are concerned, on “the best interests of the child.” The issue at stake is not one, as might ordinarily be the case, that can be unilaterally and totally deferred to the wisdom of the Legislature. “While the State retains wide latitude to decide the manner in which it will allocate benefits, it may not use criteria which discriminatorily burden the exercise of a fundamental right.” Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 652 (1981). Nor can the State’s wish to conserve resources be accomplished by invidious distinctions between classes of citizens. See Plyler v. Doe, 457 U.S. 202, 216-217, 227 (1982).4
A comment is in order with respect to the insistence of some that marriage is, as a matter of definition, the legal union of a man and a woman. 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.5 This case calls for a higher level of legal analysis. Precisely, the case requires that we confront ingrained assumptions with respect to historically accepted roles of men and women within the institution of marriage and requires that we reexamine these assumptions in light of the *349unequivocal language of art. 1, in order to ensure that the governmental conduct challenged here conforms to the supreme charter of our Commonwealth. “A written constitution is the fundamental law for the government of a sovereign State. It is the final statement of the rights, privileges and obligations of the citizens and the ultimate grant of the powers and the conclusive definition of the limitations of the departments of State and of public officers . . . . To its provisions the conduct of all governmental affairs must conform. From its terms there is no appeal.” Loring v. Young, 239 Mass. 349, 376-377 (1921). I do not doubt the sincerity of deeply held moral or religious beliefs that make inconceivable to some the notion that any change in the common-law definition of what constitutes a legal civil marriage is now, or ever would be, warranted. But, as matter of constitutional law, neither the mantra of tradition, nor individual conviction, can justify the perpetuation of a hierarchy in which couples of the same sex and their families are deemed less worthy of social and legal recognition than couples of the opposite sex and their families. See Lawrence v. Texas, 123 S. Ct. 2472, 2486 (2003) (O’Connor, J., concurring) (moral disapproval, with no other valid State interest, cannot justify law that discriminates against groups of persons); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992) (“Our obligation is to define the liberty of all, not to mandate our own moral code”).
(b) I am hopeful that our decision will be accepted by those thoughtful citizens who believe that same-sex unions should not be approved by the State. I am not referring here to acceptance in the sense of grudging acknowledgment of the court’s authority to adjudicate the matter. My hope is more liberating. The plaintiffs are members of our community, our neighbors, our coworkers, our friends. As pointed out by the court, their professions include investment advisor, computer engineer, teacher, therapist, and lawyer. The plaintiffs volunteer in our schools, worship beside us in our religious houses, and have children who play with our children, to mention just a few ordinary daily contacts. We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth. Simple principles of decency dictate that we *350extend to the plaintiffs, and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do. The union of two people contemplated by G. L. c. 207 “is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because of the terms of art. 1, the plaintiffs will no longer be excluded from that association.6
It makes no difference that the referenced decisions consider the right to marry in the context of the Fourteenth Amendment to the United States Constitution rather than in the context of our Constitution. As explained by the court, ante at 328 n.18, a fundamental right under the Federal Constitution enjoys at least a comparable measure of protection under our State Constitution. See Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 651 (1981).
In her separate opinion in Baker v. State, 170 Vt. 194, 253 (1999) (Johnson, J., concurring in part and dissenting in part), Justice Johnson described the equal protection defect in Vermont’s marriage statutes in a slightly different, but no less persuasive, fashion:
“A woman is denied the right to marry another woman because her would-be partner is a woman, not because one or both are lesbians. Similarly, a man is denied the right to marry another man because his would-be partner is a man, not because one or both are gay. Thus, an individual’s right to marry a person of the same sex is prohibited solely on the basis of sex, not on the basis of sexual orientation. Indeed, sexual orientation does not appear as a qualification for marriage under the marriage statutes. The State makes no inquiry into the sexual practices or identities of a couple seeking a license.”
Some might say that the use of the so-called strict scrutiny formula is too facile in the sense that, once a court focuses on the formula as a dispositional tool, the result is automatically preordained — the statute will fail because the State cannot possibly sustain its heavy burden to overcome the presumption of arbitrary and invidious discrimination. This is not so. See, e.g., Blixt v. Blixt, 437 Mass. 649, 656-657 (2002), cert, denied, 537 U.S. 1189 (2003) (concluding G. L. c. 119, § 39D, grandparent visitation statute, furthered compelling State interest in mitigating potential harm to children in nonintact families).
The argument, made by some in the case, that legalization of same-sex marriage in Massachusetts will be used by persons in other States as a tool to obtain recognition of a marriage in their State that is otherwise unlawful, is precluded by the provisions of G. L. c. 207, §§ 11, 12, and 13.
Because marriage is, by all accounts, the cornerstone of our social structure, as well as the defining relationship in our personal lives, confining eligibility in the institution, and all of its accompanying benefits and responsibilities, to opposite-sex couples is basely unfair. To justify the restriction in our marriage laws by accusing the plaintiffs of attempting to change the institution of marriage itself terminates the debate at the outset without any accompanying reasoned analysis.
Justice Cordy’s separate opinion points out, correctly, that, when art. 1 was revised by the people in 1976, it was not then intended to be relied on to approve same-sex marriage. Post at 377-379 (Cordy, J., dissenting). (Justice Spina adverts to the same proposition in his separate opinion, post at 355 [Spina, J., dissenting]). Decisions construing the provision cited in Justice Cordy’s opinion are interesting, but obviously inapposite because they have not dealt in any significant way with the issue before us. Nonetheless, the separate opinion concludes, from what was intended in 1976, and from various cases discussing art. 1, that the revised provision cannot be used to justify the result I reach.
In so reasoning, the separate opinion places itself squarely on the side of the original intent school of constitutional interpretation. As a general principle, I do not accept the philosophy of the school. The Massachusetts Constitution was never meant to create dogma that adopts inflexible views of one time to deny lawful rights to those who live in another. The provisions of our Constitution are, and must be, adaptable to changing circumstances and new societal phenomena, and, unless and until the people speak again on a specific subject, conformable in their concepts of liberty and equality to what is fair, right, and just. I am cognizant of the voters’ intent in passing the amendment to art. 1 in 1976. Were the revision alone the basis for change, I would be reluctant to construe it favorably to the plaintiffs, in view of the amendment’s recent passage and the voters’ intent. The court’s opinion, however, rests in part on well-established principles of equal protection that are independent of the amendment. It is on these principles that I base my opinion.