Dissenting Opinion by
BELL, C.J.I join Judge BATTAGLIA’S dissent. As Judge Battaglia carefully and correctly explains,1 sex-based classifications are analogous to race-based classifications and Maryland law, unlike federal law, by refusing to apply intermediate scrutiny to the review of sex-based classifications, does not draw a distinction between them. In State v. Burning Tree Club, Inc., 315 Md. 254, 294, 554 A.2d 366, 386 (1989), this Court held that the burden of justifying sex-based classifications falls upon the State, and that the level of scrutiny to which the classifications are subject is “at least the same scrutiny as racial classifications.” See also Giffin v. Crane, 351 Md. 133, 148, 155, 716 A.2d 1029, 1037, 1040 (1998) (holding that the Equal Rights Amendment plainly prohibits sex-based classifications, absent substantial justification); Murphy v. Edmonds, *422325 Md. 342, 357 n. 7, 601 A.2d 102, 109 n. 7 (1992); Rand v. Rand, 280 Md. 508, 512-14, 374 A.2d 900, 903-04 (1977) (finding instructive, in interpreting the scope of the Equal Rights Amendment as it applied to sex discrimination, the Supreme Court of Washington’s “overriding compelling state interest” standard). It, therefore, is clear that an equal application approach cannot render constitutional a discriminatory sex-based classification any more than it could do so for a discriminatory race-based classification.
To justify its rejection of the enhanced standard of review, strict scrutiny, that this Court has applied to the review of gender-based classifications, the majority dismisses, an undisputed but extensive history of pervasive prejudice and discrimination targeted at homosexuals. Conaway v. Deane, 401 Md. 219, 283-88, 291-92, 932 A.2d 571, 609-12, 614-15 (2007). It then concludes, as a result, that (1) homosexuals have enough political power to effect the eventual establishment, by statute, of marriage or civil unions for same-sex couples; and (2) this political power precludes their characterization as a suspect class. Id.
I am not persuaded. The fact is that Maryland has not adopted, and it may safely be said, is not on the verge of adopting, a comprehensive statewide domestic partnership scheme for same-sex couples that approximates the institution of civil marriage, and thereby confers upon such couples the approximate rights and responsibilities of married heterosexual couples. Moreover, the laudable, though piecemeal, civil advances that the majority references and on which it relies, id. at 291-92, 932 A.2d at 614-15, occurred because marriage has remained an exclusive benefit of heterosexuality. See In Tyma v. Montgomery County, 369 Md. 497, 512, 801 A.2d 148, 158 (2002) (upholding local law granting benefits to the domestic partners of its employees by virtue of holding that such law does not implicate Maryland’s marriage laws). Thus, the conditioning of advances that benefit same-sex couples on the limitation that homosexuals shall not acquire the right to marry belies any argument that the right to marry, or its *423functional equivalent, is imminent, or likely to be, not to mention, inevitable, for same-sex couples.
In any event, a due process analysis requires that we reach a different result than the majority does. The majority determines that same-sex marriage is not deeply rooted in this State or in the United States, and, therefore, does not implicate a fundamental liberty interest. 401 Md. at 296-310, 932 A.2d at 617-26. That determination, however, only recognizes and gives voice and substance to an undisputed prejudice and objection—against and to homosexuality—that is not legally cognizable; it does not address, never mind resolve, the real issue. Chief Judge Kaye made this point, in addition to identifying the real issue, in Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 27 (2006) (Kaye, C.J., dissenting). There, the New York Court of Appeals framed the issue, as the majority in this case has done, as whether “same-sex marriage” is deeply rooted in tradition, and concluded, again as the majority does here, that such marriages are not. Noting that“[f]undamental rights are those ‘which are, objectively, deeply rooted in this Nation’s history and tradition ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed,’ ” id. at 770, 855 N.E.2d at 23, quoting Washington v. Glucksberg, 521 U.S. 702, 720-721, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772, 787-788 (1997), agreeing with the Supreme Court of the United States and Court of Appeals precedent, Chief Judge Kaye concluded that “the right to marry is fundamental,” id., citing, among others, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (holding unconstitutional statutes that prohibit interracial marriage) and Levin v. Yeshiva Univ., 96 N.Y.2d 484, 730 N.Y.S.2d 15, 754 N.E.2d 1099, 1108 (2001) (G.B.Smith, J., concurring) (“marriage is a fundamental constitutional right”), and that, as a matter of due process, “central to the right to marry is the right to marry the person of one’s choice.” Id. at 770, 855 N.E.2d at 22-23. (citations omitted).
Chief Judge Kaye then opined:
*424“Fundamental rights once recognized cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting the plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new" right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.”
Id. at 770, 855 N.E.2d at 23.
Relying on Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), in which the United States Supreme Court warned against such misapprehension, she explained:
“Lawrence overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which had upheld a Georgia statute criminalizing sodomy. In doing so, the Lawrence court criticized Bowers for framing the issue presented too narrowly. Declaring that ‘Bowers was not correct when it was decided, and it is not correct today’ (539 U.S. at 578, 123 S.Ct. 2472), Lawrence explained that Bowers purported to analyze erroneously-whether the Constitution conferred a ‘fundamental right upon homosexuals to engage in sodomy’ (539 U.S. at 566, 123 S.Ct. 2472 [citation omitted]). This was, however, the wrong question. The fundamental right at issue, properly framed, was the right to engage in private consensual sexual conduct-a right that applied to both homosexuals and heterosexuals alike. In narrowing the claimed liberty interest to embody the very exclusion being challenged, Bowers ‘disclose[d] the Court’s own failure to appreciate the extent of the liberty at stake’ (Lawrence, 539 U.S. at 567, 123 S.Ct. 2472).”
Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 23. (Kaye, C.J., dissenting). What Chief Judge Kaye next said applies with equal force to the case sub judice:
“The same failure is evident here. An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it {see Planned Parenthood of *425Southeastern Pa. v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 [1992] [it is ‘ tempting ... to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified.... But such a view would be inconsistent with our law’]).”
Id. at 770, 855 N.E.2d at 23-24.
It is clear to me that the majority misapprehends the nature of the liberty at issue in this case. It is not whether a same-sex marriage, with all the pejorative emotions that evokes, is a fundamental right; the real issue in this case, when properly framed, is whether marriage is a fundamental right. The issue has already been resolved; indeed, we all agree that it has been answered in the affirmative and the right is firmly established. See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (holding unconstitutional statutes that prohibit interracial marriage); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (concluding that state requirement that indigent individuals pay court fees to obtain divorce unconstitutionally burdened the fundamental right to marry); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (determining that states cannot require individuals with child support obligations to obtain court approval in order to marry); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (holding that inmates could not be denied the right to marry).
The right to marry, encompassing as it does the related and critically important element of choice—the freedom to choose whom to marry, to select the “lucky” person—is not inherently party-centric. Neither is it either hetero—or homo—sexual. I agree with Chief Judge Kaye, to construe the right to marry as narrowly as does the majority, i.e., based on sexual orientation, makes inevitable the conclusion that this fundamental right, by virtue of historical prejudice, does not exist for same-sex couples. See Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 24. (Kaye, C.J., dissenting) (citations omitted).
As Chief Judge Kaye observed:
*426“the result in Lawrence was not affected by the fact, acknowledged by the Court, that there had been no long history of tolerance for homosexuality. Rather, in holding that ‘[p]ersons in a homosexual relationship may seek autonomy for the [] purpose [of making intimate and personal choices], just as heterosexual persons do.’ Lawrence rejected the notion that fundamental rights it had already identified could be restricted based on traditional assumptions about who should be permitted their protection. As the Court noted, ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper only served to oppress.’ As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom” (Lawrence, 539 U.S. at 579, 123 S.Ct. 2472; see also id. at 572, 539 U.S. 558, 123 S.Ct. 2472 [‘(h)istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry....’]; Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 466, 105 S.Ct. 3249, 87 L.Ed.2d 313 [1985] [Marshall, J., concurring in the judgment in part and dissenting in part] [Vhat once was a ‘natural’ and ‘self-evident’ ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom’]). Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”
Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 24. (Kaye, C.J., dissenting) (citing Lawrence, 539 U.S. at 574, 579, 123 S.Ct. at 2472).
To be sure, there are important differences between the African American experience and that of gay men and lesbians in this country, yet many of the arguments made in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage and, as in Loving, their goal is to restrict the right of an individual to marry the person of his or her choice. Consequently, the reasoning of Loving requires rejection of the petitioners’ argument. Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 24-25, 26, (Kaye, *427C.J., dissenting) (citing and quoting Brief of NAACP Legal Defense and Education Fund, Inc., as amicus curiae in support of plaintiffs).
Finally,
“[i]t is no answer that same-sex couples can be excluded from marriage because ‘marriage,’ by definition, does not include them. In the end, ‘an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning’ (Halpern v. Attorney Gen. of Can., 65 OR3d 161, 172 OAC 276, ¶ 71 [2003]). ‘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’ (Goodridge v. Department of Pub. Health, 440 Mass. 309, 348, 798 N.E.2d 941, 972-973 [2003] [Greaney, J., concurring]).”
Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 26 (Kaye, C.J., dissenting).
At the very least, the benefits appurtenant to marriage accrue, whoever and whatever the nature of the parties. Therefore, I agree with, and join, Judge Raker’s dissent to the extent that it endorses and advocates that committed same-sex couples are entitled to the myriad statutory benefits that are associated with and flow from marriage. I do not join that part of her opinion that accepts the majority’s analysis and determination that rational basis review is the appropriate standard to be applied in this case.
As to a determination under rational basis review, again, I am persuaded by Chief Judge Kaye’s Hernández dissent. Thus, if the proper test were “rational basis,” I, like Chief Judge Kaye, believe that the classification at issue in this case does not pass muster: “it does not satisfy even rational basis review, which requires that the classification ‘rationally further a legitimate state interest.’ ” Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 30. (Kaye, C.J., dissenting) (citations omitted).
*428The majority determines that, under rational basis review, the limitation of marriage to “a man and a woman”2 is reasonably related to the State’s legitimate interest in fostering procreation, in a “stable environment,” ie., traditional heterosexual marriage. See 401 Md. at 315-18, 932 A.2d at 629-30. While the State undoubtedly has an interest in encouraging heterosexual couples to marry prior to procreation, “the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.” Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 30.
The majority discusses, at length, statistics and other evidence that support the existence of trend toward the “gradual erosion of the ‘traditional’ nuclear family in today’s society,” 401 Md. at 320, 932 A.2d at 633, and also identifies the ways in which Maryland Code (1957, 2006 Repl.Vol.), Family Law Article, § 2-201 (hereinafter “Family Law § 2-201”) is both over-and under-inclusive. Id. at 319-22, 932 A.2d at 631-33. Reasoning that, because rational basis review does not require “mathematic exactitude, and may contain imperfections which result in some degree of inequality,” the majority submits that both the aforementioned trend and the inexactness, that is, the over-and under-inclusive nature of Family Law § 2-201, are insufficient to support a determination that Family Law § 2-201 runs afoul of equal protection. Id. at 325, 932 A.2d at 635 (emphasis added). At issue here, however, is not some degree of inequality but total exclusion of same-sex couples “from the entire spectrum of protections that come with civil marriage— purportedly to encourage other people to procreate.” Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 31. (Kaye, C.J., dissenting) (emphasis added).
Consequently, it is disingenuous indeed to surmise that the “possibility of procreation” creates a reasonable relationship in this context. 401 Md. at 322, 932 A.2d at 633 (emphasis *429added). As simply put by Chief Judge Kaye, “[mjarriage is about much more than producing children,” and yet the majority leaves open gaping questions such as “how offering only heterosexuals the right to visit a sick loved one in the hospital ... conceivably furthers the State’s interest in encouraging opposite-sex couples to have children.” See id. at 770, 855 N.E.2d at 31 (Kaye, C.J., dissenting). The sheer breadth of the benefits appurtenant to marriage that are, pursuant to Family Law § 2-201, made unavailable to same-sex couples renders justification “impossible to credit.” Id. at 770, 855 N.E.2d at 32. (Kaye, C.J., dissenting) (citing Romer v. Evans ), 517 U.S. 620, 635, 116 S.Ct. 1620, 1629, 134 L.Ed.2d 855 (1996)).
. Judge Battaglia also fully analyzes, and explains, why, under Maryland law, Maryland Code (1957, 2006 Repl.Vol.) § 2-201 of the Family Law Article, creates a sex-based classification. Conaway v. Deane, 401 Md. 219, 277-86, 932 A.2d 571, 605-11 (2007). As stated simply in a case presenting much the same issues as this one, Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 27 (2006) (Kaye, C.J., dissenting) (citing Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)), "[Homosexuals meet the constitutional definition of a suspect class, that is, a group whose defining characteristic is 'so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy....' ”
. Maryland Code (1957, 2006 RepLVol.), Family Law Article, § 2-201.