(concurring). We are asked by the 44 same-sex couples who commenced these four cases to declare that the denial of marriage licenses to same-sex couples violates the Due Process and Equal Protection clauses of the New York Constitution. Plaintiffs and petitioners (collectively referred to as plaintiffs) are representative of many homosexual couples living in committed relationships in our state, some of whom are raising children. They seek the societal recognition and legal and financial benefits accorded by the State to legally married couples. Respondents are the State of New York, the State Department of Health and local officials from the cities of New York, Albany and Ithaca who are involved either in overseeing the New York marriage licensing process or issuing marriage licenses.
Plaintiffs assert that the restriction of marriage to opposite-sex couples impedes the fundamental right to marry and amounts to gender or sexual orientation discrimination that does not withstand any level of constitutional analysis, whether *367strict scrutiny, intermediate scrutiny or rational basis review. Because the determination of the proper level of constitutional review is crucial to the judicial resolution of the issues in this case, I write separately to elaborate on the standard of review that should be applied under the precedent of this Court and the United States Supreme Court. I conclude that rational basis analysis is appropriate and, applying this standard, I concur in the result reached by the plurality that an affirmance is warranted in each of these cases.
This Court has long recognized that “[fjrom time immemorial the State has exercised the fullest control over the marriage relation,” going so far as to observe that “[tihere are, in effect, three parties to every marriage, the man, the woman and the State” (Fearon v Treanor, 272 NY 268, 272 [1936], appeal dismissed 301 US 667 [1937]). The historical conception of marriage as a union between a man and a woman is reflected in the civil institution of marriage adopted by the New York Legislature. The cases before us present no occasion for this Court to debate whether the State Legislature should, as a matter of social welfare or sound public policy, extend marriage to same-sex couples. Our role is limited to assessing whether the current statutory scheme offends the Due Process or Equal Protection clauses of the New York Constitution. Because it does not, we must affirm. Absent a constitutional violation, we may not disturb duly enacted statutes to, in effect, substitute another policy preference for that of the Legislature.
The Statutory Scheme:
As a preliminary matter, although plaintiffs have abandoned the argument (raised in Supreme Court in both Kane and Seymour) that the Domestic Relations Law already authorizes same-sex marriage because it does not explicitly define marriage as a union between one man and one woman, several amici continue to suggest that this Court can avoid a constitutional analysis by simply interpreting the statutory scheme to allow same-sex marriage. Our role when construing a statute is to ascertain and implement the will of the Legislature unless we are prevented from doing so by constitutional infirmity. It would be inappropriate for us to interpret the Domestic Relations Law in a manner that virtually all concede would not comport with legislative intent.
There is no basis to conclude that, when the Legislature adopted the Domestic Relations Law more than a century ago, it contemplated the possibility of same-sex marriage, *368much less intended to authorize it. In fact, the Domestic Relations Law contains many references to married persons that demonstrate that the Legislature viewed marriage as a union between one woman and one man — as seen by references to the parties to a marriage as the “bride” and “groom” (Domestic Relations Law § 15 [1] [a]) and “wife” and “husband” (Domestic Relations Law §§ 6, 12, 221, 248; see also CPLR 4502 [b]). Notably, high courts of other states with statutory schemes comparable to New York’s have interpreted the pertinent statutes as not authorizing same-sex marriage (see Goodridge v Department of Pub. Health, 440 Mass 309, 798 NE2d 941 [2003]; Baker v Nelson, 291 Minn 310, 191 NW2d 185 [1971], appeal dismissed 409 US 810 [1972]). And several of our prior cases alluded to the fact that the Domestic Relations Law precludes same-sex couples from marrying (Levin v Yeshiva Univ., 96 NY2d 484, 494 [2001]; Braschi v Stahl Assoc. Co., 74 NY2d 201, 210 [1989]). Because the Domestic Relations Law does not authorize marriage between persons of the same sex, this Court must address plaintiffs’ constitutional challenges to the validity of the marriage scheme, which are at the heart of this litigation.
Due Process:
Plaintiffs argue that the Domestic Relations Law violates article I, § 6 of the New York Constitution, which provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” Their substantive due process challenge is predicated on the assertion that the New York Constitution precludes the State from defining marriage as a union between one man and one woman because the right to privacy derived therein grants each individual the unqualified right to select and marry the person of his or her choice. If the Due Process Clause encompasses this right, and if it is one of the bundle of rights deemed “fundamental” as plaintiffs contend, the Domestic Relations Law would be subjected to the most demanding form of constitutional review, with the State having the burden to prove that it is narrowly tailored to serve compelling state interests.
But it is an inescapable fact that New York due process cases and the relevant federal case law cited therein do not support plaintiffs’ argument. While many US Supreme Court decisions recognize marriage as a fundamental right protected under the Due Process Clause, all of these cases understood the marriage *369right as involving a union of one woman and one man (see e.g. Turner v Safley, 482 US 78 [1987]; Zablocki v Redhail, 434 US 374 [1978]; Griswold v Connecticut, 381 US 479 [1965]; Skinner v Oklahoma ex rel. Williamson, 316 US 535 [1942]). Whether interpreting New York’s Due Process Clause or its federal counterpart (which is textually identical), when this Court has addressed the fundamental right to marry, it has relied on federal precedent and similarly used the word “marriage” in its traditional sense. For example, in Cooper v Morin, we grounded the right of pretrial detainees to have contact visits with family on the “fundamental right to marriage and family life . . . and to bear and rear children” (49 NY2d 69, 80 [1979], cert denied sub nom. Lombard v Cooper, 446 US 984 [1980]), citing US Supreme Court cases highlighting the link between marriage and procreation. As the Third Department aptly noted in Samuels, to ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the US Supreme Court and this Court to recognize marriage as a fundamental right in the first place.
Nor has this Court recognized a due process right to privacy distinct from that articulated by the US Supreme Court. Although our Court has interpreted the New York Due Process Clause more broadly than its federal counterpart on a few occasions, all of those cases involved the rights of criminal defendants, prisoners or pretrial detainees, or other confined individuals and implicated classic liberty concerns beyond the right to privacy. Most recently, in People v LaValle (3 NY3d 88 [2004]), the Court concluded that the anticipatory deadlock charge in the Death Penalty Act violated New York’s Due Process Clause, even though it may have been upheld under the United States Constitution. Likewise, in Cooper (49 NY2d 69 [1979]), we held that the New York Due Process Clause protected the right of pretrial detainees in a county jail to have nonconjugal contact visits with family members, even though no such right had been deemed protected under the federal Due Process Clause. Even then, our analysis did not turn on recognition of broader family privacy rights than those articulated by the Supreme Court. Rather, the analysis focused on rejection of the rational basis test that the Supreme Court then applied to *370assess jail regulations,1 with this Court instead adopting a test that “balanc[ed] . . . the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement” (id. at 79).
Most of our Due Process Clause decisions in the right to privacy realm have cited federal authority interchangeably with New York precedent, making no distinction between New York’s constitutional provision and the federal Due Process Clause (see e.g. Hope v Perales, 83 NY2d 563, 575 [1994]; Matter of Raquel Marie X., 76 NY2d 387 [1990], cert denied sub nom. Robert C. v Miguel T., 498 US 984 [1990]; Matter of Doe v Coughlin, 71 NY2d 48 [1987], cert denied 488 US 879 [1988]; Rivers v Katz, 67 NY2d 485 [1986]). Our Court has not recognized a fundamental right to marry that departs in any respect from the right defined by the US Supreme Court in cases like Skinner which acknowledged that marriage is “fundamental to the very existence and survival of the [human] race” because it is the primary institution supporting procreation and child-rearing (316 US at 541; see also Zablocki, 434 US 374; Griswold, 381 US 479). The binary nature of marriage — its inclusion of one woman and one man — reflects the biological fact that human procreation cannot be accomplished without the genetic contribution of both a male and a female. Marriage creates a supportive environment for procreation to occur and the resulting offspring to be nurtured. Although plaintiffs suggest that the connection between procreation and marriage has become anachronistic because of scientific advances in assisted reproduction technology, the fact remains that the vast majority of children are conceived naturally through sexual contact between a woman and a man.
Plaintiffs’ reliance on Loving v Virginia (388 US 1 [1967]) for the proposition that the US Supreme Court has established a fundamental “right to marry the spouse of one’s choice” outside the male/female construct is misplaced. In Loving, an interracial couple argued that Virginia’s antimiscegenation statute, which precluded “any white person in this State to marry any save a white person, or a person with no other admixture of *371blood than white and American Indian” (id. at 5 n 4), violated the federal Due Process and Equal Protection clauses. The statute made intermarriage in violation of its terms a felony carrying a potential jail sentence of one to five years. The Lovings — a white man and a black woman — had married in violation of the law and been convicted, prompting them to challenge the validity of the Virginia law.
The Supreme Court struck the statute on both equal protection and due process grounds, but the focus of the analysis was on the Equal Protection Clause. Noting that “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States,” the Court applied strict scrutiny review to the racial classification, finding “no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification” (id. at 10, 11). It made clear “that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause” (id. at 12). There is no question that the Court viewed this antimiscegenation statute as an affront to the very purpose for the adoption of the Fourteenth Amendment — to combat invidious racial discrimination.
In its brief due process analysis, the Supreme Court reiterated that marriage is a right “fundamental to our very existence and survival” (id., citing Skinner, 316 US at 541) — a clear reference to the link between marriage and procreation. It reasoned: “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes ... is surely to deprive all the State’s citizens of liberty without due process of law” (id.). Although the Court characterized the right to marry as a “choice,” it did not articulate the broad “right to marry the spouse of one’s choice” suggested by plaintiffs here. Rather, the Court observed that “[t]he Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations” (id. [emphasis added]).2 Needless to say, a statutory scheme that burdens a fundamental right by making conduct criminal based on the race of the individual who engages in it is inimical to the *372values embodied in the state and federal Due Process clauses. Far from recognizing a right to marry extending beyond the one woman and one man union,3 it is evident from the Loving decision that the Supreme Court viewed marriage as fundamental precisely because of its relationship to human procreation.4
Nor does the Supreme Court’s recent federal due process analysis in Lawrence v Texas (539 US 558 [2003]) support defining the fundamental marriage right in the manner urged by *373plaintiffs. In Lawrence, the Court overruled its prior decision in Bowers v Hardwick (478 US 186 [1986]) and struck as unconstitutional a Texas statute that criminalized consensual sodomy between adult individuals of the same sex. The holding in Lawrence is consistent with our Court’s decision in People v Onofre (51 NY2d 476 [1980], cert denied 451 US 987 [1981]), which invalidated under a federal due process analysis a New York Penal Law provision that criminalized consensual sodomy between nonmarried persons.
In Lawrence the Supreme Court did not create any new fundamental rights, nor did it employ a strict scrutiny analysis. It acknowledged that laws that criminalize sexual conduct between homosexuals
“have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals” (539 US at 567).
Criticizing the historical analysis in Bowers, it noted that, even though sodomy as well as other nonprocreative sexual activity had been proscribed, criminal statutes “directed at homosexual conduct as a distinct matter” {id. at 568) were of recent vintage, having developed in the last third of the 20th century, and therefore did not possess “ancient roots” (id. at 570).
Consistent with our analysis in Onofre, the Lawrence court held “that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons” (id. at 567) because “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (id. at 572). It reasoned that “moral disapproval” — the only justification Texas proffered for its law — is never an adequate basis for a criminal statute, a conclusion similar to this Court’s observation in Onofre that “it is not the function of the Penal Law in our governmental policy to provide either a medium for the articulation or the apparatus for the intended enforcement of moral or theological values” (51 NY2d at 488 n 3). Thus, in striking the sodomy law, the Supreme Court found that “[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” (Lawrence, 539 US at 578).
*374The right affirmed by the Supreme Court in Lawrence is not comparable to the new right to marry plaintiffs assert here, nor is the Texas statute criminalizing homosexual sodomy analogous to the marriage statutes under review. The Domestic Relations Law is not a penal provision and New York has not attempted to regulate plaintiffs’ private sexual conduct or disturb the sanctity of their homes. And, in contrast to the Texas statute, New York’s marriage laws are part of a longstanding tradition with roots dating back long before the adoption of our State Constitution.
New York’s Due Process Clause simply does not encompass a fundamental right to marry the spouse of one’s choice outside the one woman/one man construct. Strict scrutiny review of the Domestic Relations Law is therefore not warranted and, insofar as due process analysis is concerned, the statutory scheme must be upheld unless plaintiffs prove that it is not rationally related to any legitimate state interest.
Equal Protection:
Plaintiffs contend that, even if strict scrutiny analysis is not appropriate under the Due Process Clause, a heightened standard of review is nonetheless mandated under the Equal Protection Clause because New York’s marriage laws create gender and sexual orientation classifications that require a more rigorous level of analysis than rational basis review.
The Equal Protection Clause, added to the New York Constitution in 1938, provides:
“No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state” (NY Const, art I, § 11).
Soon after the adoption of this provision, this Court recognized that it was modeled after its federal counterpart and “embodies” the federal equal protection command (Dorsey v Stuyvesant Town Corp., 299 NY 512, 530 [1949], cert denied 339 US 981 [1950]; see also, Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 360 n 6 [1985] [“the State constitutional equal protection clause ... is no broader in coverage than the Federal provision”]). Accordingly, this Court has consistently cited federal cases and applied federal *375analysis to resolve equal protection claims brought under the federal and state constitutions (see e.g. Matter of Aliessa v Novello, 96 NY2d 418 [2001]; People v Liberta, 64 NY2d 152 [1984], cert denied 471 US 1020 [1985]).
The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike” (Cleburne v Cleburne Living Center, Inc., 473 US 432, 439 [1985]). Both the US Supreme Court and this Court have applied three levels of review to legislative classifications. “[W]hen a statute classifies by race, alienage, or national origin” (id. at 440), or when it burdens a fundamental right protected under the Due Process Clause, it is subjected to strict scrutiny meaning that it will be sustained only if it is narrowly tailored to serve a compelling state interest (see Golden v Clark, 76 NY2d 618, 623 [1990]). Classifications based on gender or illegitimacy are reviewed under an intermediate level of scrutiny — meaning they will be sustained if “substantially related to the achievement of an important governmental objective” (Liberta, 64 NY2d at 168; Clark v Jeter, 486 US 456 [1988]). Neither the Supreme Court nor this Court has recognized any other classifications as triggering heightened scrutiny and, therefore, all other statutory distinctions have been sustained if rationally related to a legitimate government interest (see e.g. Golden, 76 NY2d 618).
Plaintiffs argue that the Domestic Relations Law creates a classification based on gender that requires intermediate scrutiny because a woman cannot marry another woman due to her gender and a man cannot marry another man due to his gender. Respondents counter that the marriage laws are neutral insofar as gender is concerned because they treat all males and females equally — neither gender can marry a person of the same sex and both can marry persons of the opposite sex.
Respondents’ interpretation more closely comports with the analytical framework for gender discrimination applied by this Court and the Supreme Court. The precedent establishes that gender discrimination occurs when men and women are not treated equally and one gender is benefitted or burdened as opposed to the other. For example, in Liberta (64 NY2d 152), we held that the Penal Law’s restriction of the crime of forcible rape to male offenders constituted gender discrimination and the restriction was struck on the basis that it failed to meet the intermediate scrutiny standard. Men and women were not treated equally because only men could be convicted of forcible rape; women who engaged in precisely the same conduct could *376not be charged or convicted of the same offense. Similarly, in Mississippi Univ. for Women v Hogan (458 US 718 [1982]), the Supreme Court found that a publically-funded state university that refused to allow men admission to its nursing program had engaged in gender discrimination. The university improperly privileged female students by allowing them a benefit not available to similarly-situated male applicants. Likewise, in J. E. B. v Alabama ex rel. T. B. (511 US 127 [1994]), a prosecutor was determined to have engaged in gender discrimination when he exercised 9 of his 10 peremptory challenges to strike males from the venire panel resulting in an all-female jury. There, the prosecutor did not apply jury selection criteria equally among males and females — he used almost all of his challenges to exclude men from the jury.
Plaintiffs cite Loving for the proposition that a statute can discriminate even if it treats both classes identically. This misconstrues the Loving analysis because the antimiscegenation statute did not treat blacks and whites identically — it restricted who whites could marry (but did not restrict intermarriage between non-whites) for the purpose of promoting white supremacy. Virginia’s antimiscegenation statute was the quintessential example of invidious racial discrimination as it was intended to advantage one race and disadvantage all others, which is why the Supreme Court applied strict scrutiny and struck it down as violating the core interest of the Equal Protection Clause.
In contrast, neither men nor women are disproportionately disadvantaged or burdened by the fact that New York’s Domestic Relations Law allows only opposite-sex couples to marry— both genders are treated precisely the same way. As such, there is no gender classification triggering intermediate scrutiny.
Nor does the statutory scheme create a classification based on sexual orientation. In this respect, the Domestic Relations Law is facially neutral: individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual. Regardless of sexual orientation, any person can marry a person of the opposite sex. Certainly, the marriage laws create a classification that distinguishes between opposite-sex and same-sex couples and this has a disparate impact on gays and lesbians. However, a claim that a facially-neutral statute enacted without an invidious discriminatory intent has a disparate impact on a class (even a suspect class, such as one defined by race) is insufficient *377to establish an equal protection violation5 (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 321 [1995]; People v New York City Tr. Auth., 59 NY2d 343, 350 [1983]; Washington v Davis, 426 US 229, 240 [1976]). Plaintiffs concede that the Domestic Relations Law was not enacted with an invidiously discriminatory intent — the Legislature did not craft the marriage laws for the purpose of disadvantaging gays and lesbians (cf. Romer v Evans, 517 US 620 [1996]). Hence, there is no basis to address plaintiffs’ argument that classifications based on sexual orientation should be subjected to intermediate scrutiny.
Rational Basis Review:
Thus, under both the Due Process and Equal Protection clauses, these cases turn on whether the Legislature’s decision to confine the institution of marriage to couples composed of one woman and one man is rationally related to any legitimate state interest. In Affronti v Crosson (95 NY2d 713, 719 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001]), we explained that
“[t]he rational basis standard of review is a paradigm of judicial restraint. On rational basis review, a statute will be upheld unless the disparate treatment is so unrelated to the achievement of any combination of legitimate purposes that it is irrational. Since the challenged statute is presumed to be valid, the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it . . . whether or not the basis has a foundation in the record. Thus, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” (Internal quotation marks, citations, brackets and emphasis omitted.)
Especially in the realm of social or economic legislation, “the Equal Protection Clause allows the States wide latitude . . . and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes” *378(Cleburne, 473 US at 440; see generally Lovelace v Gross, 80 NY2d 419, 427 [1992]).
In these cases, respondents articulate a number of interests that they claim are legitimate and are advanced by the current definition of marriage. Given the extremely deferential standard of review, plaintiffs cannot prevail unless they establish that no conceivable legitimate interest is served by the statutory scheme. This means that if this Court finds a rational connection between the classification and any single governmental concern, the marriage laws survive review under both the Due Process and Equal Protection clauses.
As set forth in the plurality opinion, plaintiffs have failed to negate respondents’ explanation that the current definition of marriage is rationally related to the State’s legitimate interest in channeling opposite-sex relationships into marriage because of the natural propensity of sexual contact between opposite-sex couples to result in pregnancy and childbirth. Of course, marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing, such as companionship and emotional fulfilment. But here we are concerned with the State’s interest in promoting the institution of marriage.
As Justice Robert Cordy pointed out in his dissent in Goodridge v Department of Pub. Health (440 Mass at 381-382, 798 NE2d at 995 [Cordy, J., dissenting]):
“Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of human society. . . . Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. . . . [A]n orderly society requires some mechanism for coping with the fact that sexual intercourse [between a man and a woman] commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.”
Since marriage was instituted to address the fact that sexual contact between a man and a woman naturally can result in *379pregnancy and childbirth, the Legislature’s decision to focus on opposite-sex couples is understandable. It is not irrational for the Legislature to provide an incentive for opposite-sex couples — for whom children may be conceived from casual, even momentary intimate relationships — to marry, create a family environment, and support their children. Although many same-sex couples share these family objectives and are competently raising children in a stable environment, they are simply not similarly situated to opposite-sex couples in this regard given the intrinsic differences in the assisted reproduction or adoption processes that most homosexual couples rely on to have children.
As respondents concede, the marriage classification is imperfect and could be viewed in some respects as overinclusive or underinclusive since not all opposite-sex couples procreate, opposite-sex couples who cannot procreate may marry, and opposite-sex partners can and do procreate outside of marriage. It is also true that children being raised in same-sex households would derive economic and social benefits if their parents could marry. But under rational basis review, the classification need not be perfectly precise or narrowly tailored — all that is required is a reasonable connection between the classification and the interest at issue. In light of the history and purpose of the institution of marriage, the marriage classification in the Domestic Relations Law meets that test.
The Legislature has granted the benefits (and responsibilities) of marriage to the class — opposite-sex couples — that it concluded most required the privileges and burdens the institution entails due to inherent procreative capabilities. This type of determination is a central legislative function and lawmakers are afforded leeway in fulfilling this function, especially with respect to economic and social legislation where issues are often addressed incrementally (see FCC v Beach Communications, Inc., 508 US 307, 315-316 [1993]). It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate. Because the New York Constitution does not compel such a revision of the Domestic Relations Law, the decision whether or not to do so rests with our elected representatives.
. Eight years after Cooper was decided, the US Supreme Court strengthened the federal test for assessing the efficacy of prison regulations that implicate fundamental rights, requiring the state to show that the restriction is reasonably related to a legitimate security or penological interest and is not an “exaggerated response” to such interests (see Turner v Safley, 482 US 78, 90 [1987]).
. Plaintiffs cite Crosby v State of N.Y., Workers’ Compensation Bd. (57 NY2d 305, 312 [1982]) and People v Shepard (50 NY2d 640, 644 [1980]) for the proposition that the right to marry encompasses the unqualified right to marry the spouse of one’s choice. But, in resolving controversies unrelated to the right to marry, those cases did not analyze the fundamental marriage *372right but merely cited Loving when including marriage in a list of rights that have received constitutional protection.
. Of course, the rights and responsibilities attendant marriage have changed over time and there have always been differences between the states concerning the legal incidents of marriage, including differing age restrictions, consanguinity provisions and, unfortunately, some states — although not New York — once had antimiscegenation laws. With the exception of the recent extension of marriage to same-sex couples by the Supreme Judicial Court of Massachusetts (see Opinions of the Justices to the Senate, 440 Mass 1201, 802 NE2d 565 [2004], clarifying Goodridge, 440 Mass 309, 798 NE2d 941), the one element common to the institution across the nation and despite the passage of time has been its definition as a union between one man and one woman. This is how marriage is defined in the federal Defense of Marriage Act (Pub L 104-199, 110 US Stat 2419; see 1 USC § 7), which provides that no state “shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State” (28 USC § 1738C).
. Four years after Loving, the Minnesota Supreme Court upheld Minnesota’s marriage laws in the face of a challenge brought by same-sex couples (Baker v Nelson, 291 Minn 310, 191 NW2d 185 [1971], appeal dismissed 409 US 810 [1972]). The court rejected the argument that the federal Due Process Clause encompassed a right to marry that extended to same-sex couples, noting that in Loving and its other privacy cases the US Supreme Court had recognized 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 at 312, 191 NW2d at 186). The US Supreme Court summarily dismissed the appeal “for want of a substantial federal question” (409 US 810 [1972]). Under Supreme Court decisional law, as far as lower courts are concerned, “summary dismissals are ... to be taken as rulings on the merits ... in the sense that they rejected the specific challenges presented in the statement of jurisdiction and left undisturbed the judgment appealed from” (Washington v Confederated Bands & Tribes of Yakima Nation, 439 US 463, 477 n 20 [1979] [internal quotation marks and citation omitted]) and “lower courts are bound by summary decisions . . . until such time as the [Supreme] Court informs (them) that (they) are not” (Hicks v Miranda, 422 US 332, 344-345 [1975] [internal quotation marks omitted]). Thus, with respect to the federal Due Process Clause, we must presume that Loving did not expand the fundamental right to marry in the manner suggested by plaintiffs in the cases before us. This observation does not, however, preclude this Court from interpreting the New York State Due Process Clause more expansively.
. Such disparate impact claims are usually brought under civil rights statutes that authorize them, such as the New York City Human Rights Law (see e.g. Levin v Yeshiva Univ., 96 NY2d 484 [2001]).