concurring:
I join Judge FeRREn’s compelling analysis of appellants’ several arguments in Parts L, II., III., and V. of his comprehensive opinion. However, in my judgment, the marriage statute must be sustained as well against the challenge under constitutional equal protection, applicable within the District of Columbia through the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694-95, 98 L.Ed. 884 (1954).
My initial difficulty with a postulate of appellants’ analysis, reflected in Judge Fer-ren’s discussion of equal protection, is its treatment of the marriage statute as the equivalent of a statute expressly addressed to an assertedly suspect class. The marriage statute is simply not the same as, say, a statute prohibiting the employment of homosexuals. Cf. Evans v. Romer, 882 P.2d 1335 (Colo.1994) (holding that Amendment 2, which prohibited the state and municipalities from passing legislation to protect homosexuals, infringed on plaintiffs’ right to vote in violation of the Equal Protection Clause). Rather, it is a statute of inclusion of opposite-sex couples who may wish to enter a particular legal status recognized by the state. To the extent it is exclusive, it is exclusive evenly of all same-sex couples, who may, for whatever reason, wish to enter that legal *363status.1 I think it would take a considerable stretch to find, in such circumstances, the requisite “purposeful” or “invidious” legislative discrimination addressed to homosexuals. See Personnel Administrator v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 2293-94, 60 L.Ed.2d 870 (1979) (when a neutral law is challenged as having a disparate impact on women, plaintiffs must show purposeful discrimination); Washington v. Davis, 426 U.S. 229, 239-40, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976) (plaintiffs who alleged a racially disproportionate impact from governmental action must show invidious discrimination on the part of governmental actors).2
But even assuming that the marriage statute should be analyzed as one of unequal application to homosexuals and assuming further that homosexuals are a quasi-suspect class, as Judge FERREN suggests may be the case,3 I fail to see an unconstitutional transgression of equal protection. As Judge Fer-ren demonstrates, the right to marry is a fundamental right only in application to opposite-sex couples. While plainly the marriage state involves far more,4 the Supreme Court teaches that at bottom the institution reflects considerations “fundamental to the very existence and survival of the [human] race,” Skinner, supra, 316 U.S. at 541, 62 S.Ct. at 1113, and bound up with sexual relations, procreation, childbirth and child rearing. Zablocki, supra, 434 U.S. at 386, 98 S.Ct. at 681.5 It seems to me apparent that *364much the same considerations that elevate opposite-sex marriage to the status of a fundamental right constitute the requisite substantial relationship to an important governmental interest6 of a statute designed to recognize and promote that fundamental right. Surely, if only opposite-sex marriage is a fundamental right, the state may give separate recognition solely to that institution through a marriage act as here.7
These and like considerations have led, so far as I am aware, every appellate court in the land presented with the issue to reject federal constitutional challenges to opposite-sex marriage statutes.8 I am led to the same conclusion.
. As the Supreme Court of Hawaii has noted, just as not all opposite-sex marriages are between heterosexuals, not all same-sex marriages would necessarily be between homosexuals. Baehr v. Lewin, 852 P.2d 44, 51 n. 11 (Haw.), reconsideration granted in part, 74 Haw. 650, 875 P.2d 225 (1993). Cf., e.g., the statute struck down in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), which specifically employed the suspect classification of race.
. I have a somewhat similar difficulty with the argument that discrimination on the basis of gender is involved here. The marriage statute applies equally to men and women. It seems to me to stretch the concept of gender discrimination to assert that it applies to treatment of same-sex couples differently from opposite-sex couples. This argument was rejected in Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, 1196 review denied, 84 Wash.2d 1008 (1974), which discussed and distinguished Loving v. Virginia, supra, outlawing the ban on interracial marriages. (The Hawaii Supreme Court took a somewhat different view in ruling on the application of the gender discrimination clause of the Hawaii Constitution in Baehr, supra note 1.) In any event, appellants’ broad argument is plainly focussed on the impact of the marriage statute upon homosexuals, not upon men and women in general, and, in this context, it would seem somewhat unrealistic to use gender discrimination as the basis for the analysis.
. Discrimination on the basis of gender calls for an analysis based on quasi-suspect status, see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456-57, 50 L.Ed.2d 397 (1976), and I can perceive no warrant under current constitutional doctrine and present factual knowledge for placing homosexuality in a status calling for greater scrutiny. Indeed, as Judge Ferren points out, all federal appellate courts that have considered the subject have refused to recognize homosexuality even as much as a quasi-suspect class, even with respect to statutes or regulations addressed solely to that status.
. See Turner v. Safley, 482 U.S. 78, 95-96, 107 S.Ct. 2254, 2265, 96 L.Ed.2d 64 (1987). I do not think that the existence of other aspects of marriage with which the state cannot impermissibly interfere negates the importance of the basic considerations expressed, e.g., in Zablocki v. Redhail, 434 U.S. 374, 386, 98 S.Ct. 673, 681, 54 L.Ed.2d 618 (1978), and Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942).
. The sexual aspect of opposite-sex marriage would appear to relate in a similar way to same-sex marriage between homosexuals. If, as it may appear from Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), the state could ban the commission of acts presumably to be expected in such a same-sex relationship, it is difficult to understand on what basis the state constitutionally could be forced to extend the recognition of marriage to that relationship, whatever view it might otherwise take of such acts. Cf. Steffan v. Aspin, 303 U.S.App.D.C. 404, 409-10, 8 F.3d 57, 62-63 (1993) ("we have noted the anomaly of according special protection to a class whose defining characteristic, homosexual conduct, can be made illegal”), judgment vacated, 41 F.3d 677 (D.C.Cir.1994) (en banc). In the marriage context, the much-mooted distinction between homosexual orientation and homosexual acts does not seem particularly relevant.
It is, of course, true that not all opposite-sex marriages involve procreation or even sexual relations and conversely that those activities occur without marriage. In the leading case of Baker v. Nelson, the Minnesota Supreme Court rejected this consideration thus:
Petitioners note that the state does not impose upon heterosexual married couples a condition *364that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming [I think the Minnesota court here makes a massive assumption] that such a condition would be neither unrealistic nor offensive under the Gris-wold rationale [Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)], the classification is no more than theoretically imperfect. We are reminded, however, that ‘abstract symmetry’ is not demanded by the Fourteenth Amendment.
291 Minn. 310, 191 N.W.2d 185, 187 (1971) (footnote omitted). The court then cites to several cases and quotes from Skinner v. Oklahoma, supra, 316 U.S. at 540, 62 S.Ct. at 1113: "The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” 191 N.W.2d at 187 n. 4.
. See 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 18.23 (2d ed. 1992) and cases cited.
. To the extent that appellants attack not the institution of marriage as recognized by statute but rather the special considerations given to that status by particularized statutes, as detailed by Judge Ferren in his opinion, it seems to me clear that appellants cannot claim the protection of the equal protection clause on the basis of homosexuals as a quasi-suspect class. Most if not all of such statutes "adversely” affect all unmarried couples of whatever status, and presumably would pass the rational relation test normally used in equal protection analysis. See, e.g., Pennell v. City of San Jose, 485 U.S. 1, 14, 108 S.Ct. 849, 858-59, 99 L.Ed.2d 1 (1988). In any event, each such statute would have to be addressed on an individual basis.
. See Jones v. Hallaban, 501 S.W.2d 588, 590 (Ky.Ct.App.1973) (holding that two females are not capable of entering a marriage and therefore the denial of a marriage license to same-sex couples infringes upon no constitutional rights); Baker, supra, 191 N.W.2d at 186-87 (holding that the state’s marriage statute did not authorize same-sex marriages and rejecting the plaintiffs’ claims that the prohibition of same-sex marriages violated the Fourteenth Amendment's Equal Protection and Due Process Clauses); In re Cooper, 187 A.D.2d 128, 592 N.Y.S.2d 797, 799-800 (holding that a same-sex partner was not a "surviving spouse” and therefore had no right of election against a decedent’s will and that exclusion of same-sex partners did not violate equal protection), appeal dismissed, 82 N.Y.2d 801, 604 N.Y.S.2d 558, 624 N.E.2d 696 (1993); Singer, supra, 522 P.2d at 1196-97 (holding that the state's refusal to issue a marriage license to a female-female couple did not violate equal protection under the state or federal constitution). A number of cases are extant rejecting other arguments relating to same-sex marriages. See, e.g., Jennings v. Jennings, 20 Md. App. 369, 315 A.2d 816, 820 n. 7 (1974) (noting that Maryland does not recognize same-sex marriages); Gajovski v. Gajovski, 81 Ohio App.3d 11, 610 N.E.2d 431, 433 (1991) (holding that a female cannot live in concubinage with another woman because Ohio does not recognize homosexual marriages); DeSanto v. Barnsley, 328 Pa.Super. 181, 476 A.2d 952, 955-56 (1984) (holding that two persons of the same sex cannot enter a common-law marriage); Slayton v. State, 633 S.W.2d 934, 937 (Tex.Crim.App.1982) (holding that a marriage cannot exist between two persons of the same sex under Texas law). As already alluded to, see note 2 supra, the Hawaii Supreme Court has found that a state statute which denies same-sex couples the right to marry presumptively violated its state constitution unless the state showed it could survive strict scrutiny. Baehr, supra, 852 P.2d at 67. However, the constitutionality of the District’s laws is judged solely under the federal constitution.