IN RE MARRIAGE CASES

McGUINESS, P.J.

The legal issue presented in these appeals is straightforward: Did the trial court err when it concluded Family Code statutes defining civil marriage as the union between a man and a woman are unconstitutional? (Fam. Code, §§ 300, 301, 302, 308.5.) Appellants assert legal error; respondents reiterate their arguments that excluding same-sex couples from marriage violates due process and equal protection and is not supported by a compelling state interest. Our dissenting colleague advances theories and arguments not made by the parties or relied on by the trial court and concludes a constitutionally protected privacy interest compels expanding the definition of marriage to include same-sex couples. California has long sought to eliminate discrimination against gays and lesbians. Our Legislature has passed landmark legislation providing substantially all the rights, responsibilities, benefits and protections of marriage to same-sex couples who register as domestic partners. (Fam. Code, § 297 et seq.) We must now decide whether the state's definition of marriage, which historically has precluded same-sex partners from marrying, is constitutional. Obviously, the question is one of great significance, and it requires us to venture into the storm of a fierce national debate. Both sides believe passionately in their positions. One side argues the time has come for lesbian and gay relationships to enjoy full social equality, and it is fundamentally unfair for the state to continue to reserve marriage as an institution for heterosexual couples only. The other side stresses the need for judicial restraint and the importance of preserving the traditional understanding of marriage — which is very important to many Californians, who fear such a fundamental change will destroy or seriously weaken the institution at the heart of family life. While we have considered all arguments raised on both sides of the issue, our task as an appellate court is not to decide who has the most compelling vision of what marriage is, or what it should be. "[T]he judiciary is not in the business of preferring, much less anointing, one value as more valid than another. . . ." ( Lewis v. Harris (2005) 378 N.J. Super. 168, 200 [ 875 A.2d 259] (conc. opn. of Parrillo, J.A.D.).) We are called upon to decide only whether the statutory definition of marriage as the union of a man and a woman — which has existed, explicitly or implicitly, since the founding of our state — is unconstitutional because it does not permit gays and lesbians to marry persons of their choice. All can agree that California has not deprived its gay and lesbian citizens of a right they previously enjoyed; same-sex couples have never before had the right to enter a civil marriage. It is also beyond dispute that our society has historically understood "marriage" to refer to the union of a man and a woman. These facts do not mean the opposite-sex nature of marriage can never change, or should never change, but they do limit our ability as a court to effect such change. The respondents in these appeals are asking this court to recognize a new right. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage. "The role of the judiciary is not to rewrite legislation to satisfy the court's, rather than the Legislature's, sense of balance and order. Judges are not `"knight[s]-errant, roaming at will in pursuit of [their] own ideal of beauty or of goodness."' [Citation.]" ( People v. Carter (1997) 58 Cal.App.4th 128, 134 [ 67 Cal.Rptr.2d 845].) In other words, judges are not free to rewrite statutes to say what they would like, or what they believe to be better social policy. Because we have a fundamentally different view of the appellate judicial function, at least in relation to these cases, we part ways with our dissenting colleague. The dissent delivers what is essentially an impassioned policy lecture on why marriage should be extended to same-sex couples. Lacking controlling precedent, it misconstrues case law and mischaracterizes the parties' claims and our analysis to reach this result. But the court's role is not to define social policy; it is only to decide legal issues based on precedent and the appellate record. The six cases before us ultimately distill to the question of who gets to define marriage in our democratic society. We believe this power rests in the people and their elected representatives, and courts may not appropriate to themselves the power to change the definition of such a basic social institution. Our dissenting colleague's views, while well intentioned, disregard this delicate balance. Moreover, his unfortunate rhetoric suggesting our opinion is an exercise in discrimination rather than a legitimate attempt to follow the law (dis. opn., post, at pp. 983-984) does nothing to advance the serious subject matter of these appeals. We conclude California's historical definition of marriage does not deprive individuals of a vested fundamental right or discriminate against a suspect class, and thus we analyze the marriage statutes to determine whether the opposite-sex requirement is rationally related to a legitimate government interest. According the Legislature the extreme deference that rational basis review requires, we conclude the marriage statutes are constitutional. The time may come when California chooses to expand the definition of marriage to encompass same-sex unions. That change must come from democratic processes, however, not by judicial fiat.

Litigation in California over the right to same-sex marriage was sparked by the controversial decision of Gavin Newsom, Mayor of the City and County of San Francisco (City), to begin issuing marriage licenses without regard to the gender or sexual orientation of either prospective spouse. On February 10, 2004, Newsom sent a letter to County Clerk Nancy Alfaro asking her to alter the forms used in order to provide marriage licenses regardless of gender or sexual orientation. ( Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1069-1070 [ 17 Cal.Rptr.3d 225, 95 P.3d 459] ( Lockyer).) Observing that "`[t]he Supreme Courts in other states have held that equal protection provisions in their state constitutions prohibit discrimination against gay men and lesbians with respect to the rights and obligations flowing from marriage,'" the mayor stated his belief that these decisions were persuasive "`and that the California Constitution similarly prohibits such discrimination.'" ( Id. at p. 1070.) Finally, Mayor Newsom asserted his request "was made `[p]ursuant to [his] sworn duty to uphold the California Constitution, including specifically its equal protection clause. . . .'" ( Ibid., fn. omitted.) In accordance with this directive, the City began issuing marriage licenses to same-sex couples on February 12, 2004. ( Lockyer, supra, 33 Cal.4th at p. 1071.) The following day, two actions were filed in the San Francisco County Superior Court seeking an immediate stay and writ relief to halt the issuance of such licenses. ( Thomasson v. Newsom (Super.Ct. S.F. City County, No. CGC-04-428794) ( Thomasson); Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco (Super.Ct. S.F. City County, No. CPF-04-503943) ( Proposition 22).) After the trial court refused to grant an immediate stay, the Attorney General filed an original writ petition in the California Supreme Court, asserting the City's actions were unlawful and immediate intervention by the Supreme Court was justified. ( Lockyer, supra, 33 Cal.4th at p. 1072.) On March 11, 2004, the Supreme Court issued an order to show cause and stayed all proceedings in the Thomasson and Proposition 22 actions, noting, however, that its order would not preclude the filing of a separate action raising a direct challenge to the constitutionality of California's marriage statutes. ( Lockyer, supra, 33 Cal.4th at pp. 1073-1074.) Acting on this suggestion, the City filed a complaint for declaratory relief and a petition for writ of mandate challenging the validity of Family Code provisions limiting marriage in California to unions between a man and a woman. (Fam. Code, §§ 300, 308.5.) ( City and County of San Francisco v. State of California (Super.Ct. S.F. City County, No. CGC-04-429539) ( CCSF).) Two similar actions were filed by groups of same-sex couples, who allege they are involved in committed relationships but are prevented from marrying in California, or whose out-of-state marriages are not recognized under California law. ( Tyler v. County of Los Angeles (Super.Ct. L.A. County, No. BS-088506) ( Tyler); Woo v. Lockyer (Super.Ct. S.F. City County, No. CGC-04-504038) ( Woo).) On August 12, 2004, the Supreme Court issued its opinion in Lockyer. Having concluded local officials in San Francisco exceeded their authority in issuing marriage licenses to same-sex couples, the court issued a writ of mandate directing these officials to enforce the statutes governing marriage "unless and until they are judicially determined to be unconstitutional" and compelling them to take remedial action with respect to marriages that were previously conducted in violation of applicable laws. ( Lockyer, supra, 33 Cal.4th at pp. 1069, 1120.) A majority of the court also concluded that the approximately 4,000 same-sex marriages performed in San Francisco were void and of no legal effect. ( Id. at pp. 1069, 1071, 1114.) The high court repeatedly stressed that the constitutional validity of California's limitation of marriage to opposite-sex couples was not before it, and the court expressed no opinion on the issue. ( Id. at p. 1069; see also id. at p. 1125 (conc. opn. of Moreno, J.); id. at pp. 1132-1133 (conc. dis. opn. of Kennard, J.).) Meanwhile, when Lockyer was pending, the Judicial Council coordinated the three actions challenging the constitutionality of the marriage laws into a single proceeding, known as the Marriage Cases (JCCP No. 4365), and assigned them to San Francisco Superior Court Judge Richard A. Kramer. A fourth suit filed by a group of same-sex couples was later added. ( Clinton v. State of California (Super.Ct. S.F. City and County, No. CGC-04-429-548) ( Clinton).) The Thomasson and Proposition 22 cases, which had been stayed while the Supreme Court considered Lockyer, were also assigned to the coordinated proceedings before Judge Kramer. The trial court directed all parties to submit briefs, and, on December 22 and 23, 2004, it held hearings in the coordinated cases to consider the constitutional validity of California's marriage statutes. On April 13, 2005, the trial court issued its final decision. Although the City and other plaintiffs had also claimed the marriage laws violated their rights to due process and privacy, the court addressed only those challenges based on the equal protection clause of the California Constitution (Cal. Const., art. I, § 7, subd. (a)). The court ruled that Family Code provisions limiting marriage in California to opposite-sex unions are subject to strict judicial scrutiny because they rest on a suspect classification (gender) and because they impinge upon the fundamental right to marry. After considering interests advanced by the state and other parties — i.e., CCF and the Proposition 22 Legal Defense and Education Fund (the Fund) — and searching for additional interests in relevant legislative history and ballot materials, the court concluded the marriage statutes' opposite-sex requirement does not pass strict scrutiny, or even the more deferential review accorded under the rational basis test, because it does not further any legitimate state interest. Accordingly, the court declared Family Code sections 300 and 308.5 unconstitutional under the California Constitution and entered judgment in each of the coordinated cases in favor of the City and/or the individual plaintiffs and interveners. Separate appeals from the state, the Fund and CCF followed, and we consolidated all six appeals for purposes of decision.

I. Justiciability Issues As a preliminary matter, we must address arguments that two of the cases before us should have been dismissed because they are not justiciable controversies. After the Supreme Court issued a remittitur in Lockyer and dissolved the stay that had applied to the Thomasson and Proposition 22 actions, CCF and the Fund sought leave to amend the complaints in these cases. The City and certain intervener-defendants opposed this request and moved to dismiss Thomasson and Proposition 22 as moot, arguing the Supreme Court's decision in Lockyer had granted all the relief sought in these cases and plaintiffs lacked standing to pursue bare claims for declaratory relief. The trial court denied the plaintiffs' request for leave to amend but also denied the defendants' motion to dismiss. The court concluded the Thomasson and Proposition 22 complaints "adequately state[d]" claims for declaratory relief concerning the constitutionality of the marriage laws. On appeal, the City and interveners renew their arguments that claims brought in the Thomasson and Proposition 22 actions are not justiciable. Such challenges may be raised without a cross-appeal because they do not seek affirmative relief; rather, they are alternative legal theories offered to support affirmance of the judgments in these cases. (Code Civ. Proc., § 906; see Westinghouse Electric Corp. v. County of Los Angeles (1982) 129 Cal.App.3d 771, 781 [ 181 Cal.Rptr. 332] [respondent's challenge to ruling on standing proper without cross-appeal].) Assuming the trial court acted within its discretion when it construed the declaratory relief claims in Thomasson and Proposition 22 broadly to encompass issues about the constitutionality of the marriage statutes (see Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 892-893 [ 72 Cal.Rptr.2d 73]), we conclude the court erred in denying the motion to dismiss because CCF and the Fund lacked standing to pursue these pure declaratory relief claims. Code of Civil Procedure section 1060 confers standing upon "[a]ny person interested under a written instrument" who brings an action for declaratory relief "in cases of actual controversy relating to the legal rights and duties of the respective parties." The validity or construction of a statute is recognized as a proper subject of declaratory relief. ( City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 [ 124 Cal.Rptr.2d 519, 52 P.3d 695].) However, declaratory relief is only appropriate where there is an actual controversy, and not simply an abstract or academic dispute, between parties who are affected by the legislation. (See Newland v. Kizer (1989) 209 Cal.App.3d 647, 657 [ 257 Cal.Rptr. 450].) In general, to have standing, a plaintiff must have an actual interest in the subject matter that is subject to injury depending on the outcome of the suit. "`One who invokes the judicial process does not have "standing" if he, or those whom he properly represents, does not have a real interest in the ultimate adjudication because the actor has neither suffered nor is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.' [Citations.] [¶] `[T]he mere surmise that some right or claim may be asserted does not confer jurisdiction. . . . [¶] The plaintiff must establish facts which give rise as a matter of law to an existing or imminent invasion of his rights by the defendant which would result in injury to him.' [Citations.]" ( Zetterberg v. State Dept. of Public Health (1974) 43 Cal.App.3d 657, 662-663 [ 118 Cal.Rptr. 100].) For reasons we discussed in a prior opinion concerning the Fund's attempt to intervene in the CCSF and Woo cases, neither the Fund nor CCF satisfies these requirements for injury-based standing. In determining that the Fund lacked a sufficiently direct and immediate interest to support intervention, we observed there was no indication that a judgment in the action would in any way benefit or harm the Fund's members. ( City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1038 [ 27 Cal.Rptr.3d 722].) "Specifically, the Fund [did] not claim a ruling about the constitutionality of denying marriage licenses to same-sex couples [would] impair or invalidate the existing marriages of its members, or affect the rights of its members to marry persons of their choice in the future. Nor ha[d] the Fund identified any diminution in legal rights, property rights or freedoms that an unfavorable judgment might impose on" its members, or on other Californians who oppose same-sex marriage. ( Id. at pp. 1038-1039, fn. omitted.) The same is true for CCF. Although these associations, and their members, may have a strong philosophical or political interest in defending the validity of California's marriage laws, they have not alleged or demonstrated any possibility that they will suffer injury from an adverse judgment in these actions. While the Fund urges us to relax the standing rules due to the great public interest in the issues at stake, "[t]he fact that an issue raised in an action for declaratory relief is of broad general interest is not grounds for the courts to grant such relief in the absence of a true justiciable controversy. [Citations.]" ( Zetterberg v. State Dept. of Public Health, supra, 43 Cal.App.3d at p. 662; see also id. at p. 663 ["A difference of opinion as to the interpretation of a statute as between a citizen and a governmental agency does not give rise to a justiciable controversy"].) However, unlike in federal courts, two related rules permit standing in California in the absence of such potential injury. "Code of Civil Procedure section 526a permits a taxpayer to bring an action to restrain or prevent an illegal expenditure of public money. No showing of special damage to a particular taxpayer is required as a requisite for bringing a taxpayer suit. [Citation.] Rather, taxpayer suits provide a general citizen remedy for controlling illegal governmental activity. [Citation.]" ( Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 29 [ 112 Cal.Rptr.2d 5].) The purpose of the taxpayer standing statute "is to permit a large body of persons to challenge wasteful government action that otherwise would go unchallenged because of the standing requirement. [Citation.]" ( Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1240 [ 94 Cal.Rptr.2d 740].) Although members of CCF and the Fund may be taxpayers, these organizations do not have standing under Code of Civil Procedure section 526a to seek declaratory relief because their claims do not identify or challenge any allegedly illegal expenditure of public funds. In accordance with the Supreme Court's directive in Lockyer, the City has stopped issuing marriage licenses to same-sex couples, and neither the Fund nor CCF has identified any continuing public expenditure it challenges. (7) Regardless of the liberal construction granted claims under Code of Civil Procedure section 526a, "the essence of a taxpayer action remains an illegal or wasteful expenditure of public funds or damage to public property. [Citation.] The taxpayer action must involve an actual or threatened expenditure of public funds. [Citation.]" ( Waste Management of Alameda County v. County of Alameda, supra, 79 Cal.App.4th at p. 1240.) In addition to taxpayer actions, standing requirements are also relaxed in the area of so-called citizen suits. In such actions, citizens who are not personally affected may nevertheless sue to compel performance of a public duty. ( Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at p. 29.) This exception to standing requirements applies, typically in the context of a mandamus proceeding, "where the question is one of public right and the object of the action is to enforce a public duty — in which case it is sufficient that the plaintiff be interested as a citizen in having the laws executed and the public duty enforced. [Citations.]" ( Waste Management of Alameda County v. County of Alameda, supra, 79 Cal.App.4th at pp. 1236-1237; see Green v. Obledo (1981) 29 Cal.3d 126, 144 [ 172 Cal.Rptr. 206, 624 P.2d 256].) This exception gave CCF and the Fund standing to pursue their original actions for mandamus, because these claims sought to compel City officials to enforce the marriage laws. However, mandamus having been granted by the Supreme Court, the "citizen suit" exception does not give these organizations standing to pursue pure declaratory relief claims in which neither they nor their members have a personal beneficial interest. Judicial recognition of citizen standing is not a repudiation of the usual requirement of a plaintiff's beneficial interest in litigation. ( Waste Management of Alameda County v. County of Alameda, supra, 79 Cal.App.4th at p. 1237.) Because the remaining claims in Thomasson and Proposition 22 seek only declaratory relief about the constitutionality of the marriage laws, and do not seek to enforce a public duty (such as the execution of these laws), the citizen suit exception no longer applies. Although we have determined CCF and the Fund lack standing to pursue their declaratory relief claims, this conclusion has had little to no significance, as a practical matter, in our review of the substantive issues in these appeals. We have reviewed all appellate briefs submitted by the Fund and CCF, and amicus curiae briefs submitted on their behalf, and have considered all the arguments contained therein. For reasons discussed later in this opinion, we have concluded California's marriage laws are subject to review under the rational basis test. Because rational basis review requires a court to consider all reasonably conceivable state interests that may be furthered by a challenged statute ( Warden v. State Bar (1999) 21 Cal.4th 628, 644, 650 [ 88 Cal.Rptr.2d 283, 982 P.2d 154]), we would have been obliged to consider the merit of state interests proposed by CCF and the Fund regardless of how they were presented (i.e., in appellate or amicus curiae briefs). As a legal matter, however, our conclusion that CCF and the Fund lack standing means that the judgments against them in Thomasson and Proposition 22 must be affirmed on the ground that the cases were not justiciable controversies.

II. Relevant Statutory Provisions A. The Marriage Statutes Civil marriage in this state is entirely a creature of statutory law. ( Lockyer, supra, 33 Cal.4th at p. 1074; Estate of DePasse (2002) 97 Cal.App.4th 92, 99 [ 118 Cal.Rptr.2d 143].) While many legislative enactments govern the creation and dissolution of marriages, and the legal consequences of marriage, these cases require us to address only the statutes that limit the availability of marriage to unions in California between a man and a woman. Of these, the most significant is probably Family Code section 300, which defines what a marriage is. Family Code section 300 states, in relevant part: "Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary." Gender-specific language also appears in sections 301 and 302 of the Family Code, which set the age of consent for marriage between "[a]n unmarried male" and "an unmarried female" at 18 years or older, absent parental consent and court approval. The gender specifications were added to the Family Code's definition of marriage in 1977. (Stats. 1977, ch. 339, § 1, p. 1295.) Previous versions of the statute stated only that marriage "is a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary." (Former Civ. Code, § 4100, added by Stats. 1969, ch. 1608, § 8, p. 3314 and repealed by Stats. 1992, ch. 162, § 10, pp. 464, 474 [moving the provision, without substantive change, to Fam. Code, § 300]; see also former Civ. Code, § 55, enacted 1872 [stating "Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary"].) In 1977, the County Clerks Association of California sponsored Assembly Bill No. 607, which sought to specify that marriage is a relationship "between a man and a woman." (Assem. Bill No. 607 (1977-1978 Reg. Sess.).) Although county clerks throughout the state had interpreted existing law as permitting only opposite-sex marriages, and consequently had "uniformly denied marriage licenses to same sex couples" (Legis. Counsel, Rep. on Assem. Bill No. 607 (1977-1978 Reg. Sess.) p. 1), they believed former Civil Code, section 4100 was unclear and could be interpreted to encompass same-sex unions. (Sen. Republican Caucus, analysis of Assem. Bill No. 607 (1977-1978 Reg. Sess.) p. 1.) Assembly Bill No. 607 was therefore introduced, and passed, for the express purpose of amending the statute "to prohibit persons of the same sex from entering lawful marriage." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607 (1977-1978 Reg. Sess.) as amended May 23, 1977, p. 1; see Lockyer, supra, 33 Cal.4th at p. 1076, fn. 11 [stating the bill's objective of prohibiting same-sex marriage is clear from its legislative history].) Former Civil Code section 4100 was later recodified, without substantial change, as Family Code section 300. (Stats. 1992, ch. 162, § 10, pp. 464, 474.) A second statute limiting marriage in California to opposite-sex unions was passed by voter initiative in 2000. Proposition 22 added Family Code section 308.5, which states: "Only marriage between a man and a woman is valid or recognized in California." The scope of section 308.5 remains a matter of some dispute. Last year, Division One of the Second District Court of Appeal held that Family Code section 308.5 addresses only the extent to which out-of-state marriages will be recognized as valid in California. ( Armijo v. Miles (2005) 127 Cal.App.4th 1405, 1422-1424 [ 26 Cal.Rptr.3d 623].) After reviewing the Legislative Analyst's ballot summary of Proposition 22 and arguments in favor of the initiative — which acknowledged that same-sex marriage was currently prohibited in California but suggested the state might be required to recognize same-sex marriages entered in other states — the Armijo court concluded Proposition 22 "was designed to prevent same-sex couples who could marry validly in other countries or who in the future could marry validly in other states from coming to California and claiming, in reliance on Family Code section 308, that their marriages must be recognized as valid marriages. With the passage of Proposition 22, then, only opposite-sex marriages validly contracted outside this state will be recognized as valid in California." ( Armijo v. Miles, supra, 127 Cal.App.4th at p. 1424.) The Third District Court of Appeal has reached a somewhat broader interpretation of the reach of Proposition 22. In rejecting a claim that the state's domestic partnership laws (Fam. Code, § 297 et seq.) constitute an inappropriate amendment to Proposition 22, because they grant marriage-like rights to same-sex unions, the Third District concluded the initiative was intended "to prevent the recognition in California of homosexual marriages that have been, or may in the future be, legitimized by laws of other jurisdictions," and "to limit the status of marriage to heterosexual couples." ( Knight v. Superior Court (2005) 128 Cal.App.4th 14, 18 [ 26 Cal.Rptr.3d 687].) The Knight court observed the plain language of Proposition 22, and the resulting statute (Fam. Code, § 308.5), "reaffirms the [existing] definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state." (Knight v. Superior Court, supra, 128 Cal.App.4th at pp. 23-24, italics added.) In other words, according to the Knight decision, Proposition 22 was designed to reserve marriage in California as an institution exclusively for opposite-sex couples. (See Knight v. Superior Court, supra, at p. 26.) Furthermore, in light of this broad interpretation of the initiative, Knight observed that, "[w]ithout submitting the matter to the voters, the Legislature cannot change this absolute refusal to recognize marriages between persons of the same sex. (Cal. Const., art. II, § 10, subd. (c).)" ( Knight v. Superior Court, supra, 128 Cal.App.4th at p. 24; see also Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1483-1484, 1487 [ 76 Cal.Rptr.2d 342] [Legislature may not directly or indirectly amend a law passed by initiative without obtaining voters' consent].) We need not resolve this controversy because issues about the precise scope of Proposition 22, and whether it inhibits the Legislature from passing laws to permit same-sex marriage between Californians, are not directly presented in these appeals. Taken together, Family Code sections 300 and 308.5 clearly and consistently limit the institution of marriage in California to opposite-sex unions. We must decide only whether the limitation is constitutional. Before turning to this question, however, we discuss the rights and benefits California law currently provides to same-sex relationships, most notably through the domestic partnership statutes. B. The Domestic Partner Act California has passed many laws to reduce discrimination against gays and lesbians. For example, the Unruh Civil Rights Act (Civ. Code, § 51) prohibits business establishments that offer services to the public from discriminating on the basis of sexual orientation. ( Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 733-734 [ 195 Cal.Rptr. 325]; see also Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 850 [ 31 Cal.Rptr.3d 565, 115 P.3d 1212] [concluding Unruh Civil Rights Act prohibits discrimination against registered domestic partners in favor of married couples].) Similarly, California's Fair Employment and Housing Act expressly identifies sexual orientation discrimination as an unlawful employment practice. (Gov. Code, § 12940, subd. (a).) Gays and lesbians are equally entitled to become foster parents or adoptive parents (Welf. Inst. Code, § 16013, subd. (a) ["all persons engaged in providing care and services to foster children, including, but not limited to, foster parents, adoptive parents, relative caregivers, and other caregivers . . . shall not be subjected to discrimination or harassment on the basis of . . . sexual orientation"]), and the Supreme Court has upheld the use of "second parent" adoption as a means for a nonbiological parent to establish legal family ties with the child of his or her same-sex partner. ( Sharon S. v. Superior Court (2003) 31 Cal.4th 417 [ 2 Cal.Rptr.3d 699, 73 P.3d 554]; see Fam. Code, § 9000, subds. (b) (g) [providing for adoption by registered domestic partner]; see also Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 113, 119-120 [ 33 Cal.Rptr.3d 46, 117 P.3d 660] [same-sex partner not biologically related to child may be considered a "parent" for purposes of Uniform Parentage Act].) In 1999, the Legislature passed a bill creating a statewide domestic partnership registry. (Stats. 1999, ch. 588, § 2 [adding Fam. Code, §§ 297- 299.6]; see Armijo v. Miles, supra, 127 Cal.App.4th at p. 1411.) In so doing, "California became one of the first states to allow cohabiting adults of the same sex to establish a `domestic partnership' in lieu of the right to marry." ( Holguin v. Flores (2004) 122 Cal.App.4th 428, 433 [ 18 Cal.Rptr.3d 749].) Newly enacted Family Code, section 297 defined "domestic partners" as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." (Fam. Code, § 297, subd. (a); see Holguin v. Flores, supra, 122 Cal.App.4th at p. 433.) Among other requirements for registration, domestic partners must share a common residence, be at least 18 years old and unrelated by blood, and be either members of the same sex or over the age of 62. (Fam. Code, § 297, subd. (b).) Soon after their creation, these domestic partnership laws were expanded by amendments that granted registered partners new legal rights. (Stats. 2001, ch. 893; Holguin v. Flores, supra, 122 Cal.App.4th at p. 434.) Then in 2003, with the passage of Assembly Bill No. 205 (2003-2004 Reg. Sess.), the Legislature significantly broadened domestic partnership rights by enacting comprehensive legislation: the California Domestic Partner Rights and Responsibilities Act of 2003 (Domestic Partner Act). (Stats. 2003, ch. 421.) Family Code section 297.5, subdivision (a) was added by the Domestic Partner Act and became operative on January 1, 2005. (Stats. 2003, ch. 421, § 4; Armijo v. Miles, supra, 127 Cal.App.4th at p. 1413.) This statute declares: "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law . . . as are granted to and imposed upon spouses." (Fam. Code, § 297.5, subd. (a).) Specifically, registered domestic partners have the same rights and obligations as married spouses regarding financial support, property ownership, child custody and support. (Fam. Code, § 297.5, subds. (a)-(d).) There are some exceptions, however. First, the Domestic Partner Act confers only rights and responsibilities available under California law; it does not (because it cannot) extend to domestic partners the numerous benefits married couples enjoy under federal law. (Fam. Code, § 297.5, subd. (k); Knight v. Superior Court, supra, 128 Cal.App.4th at p. 30.) Registered domestic partners may not file joint income tax returns, nor is their earned income treated as community property for state or federal tax purposes. (Fam. Code, § 297.5, subd. (g).) Second, the Domestic Partner Act does not (because it cannot) impact rights and responsibilities that are expressly reserved for married couples under the California Constitution or statutes adopted by initiative. (Fam. Code, § 297.5, subd. (j).) So, for example, the property tax reassessment benefit granted to surviving spouses under Proposition 13 is not available to a surviving domestic partner. (See Assem. Com. on Judiciary, Analysis of Assem. Bill No. 205 (2003-2004 Reg. Sess.) as amended Mar. 25, 2003, p. 4.) Third, given the federal Defense of Marriage Act ( 28 U.S.C. § 1738c) and similar state enactments, registered domestic partners do not have the assurance that their partnerships will be legally recognized in other states, as marriages are. ( Knight v. Superior Court, supra, 128 Cal.App.4th at p. 31; see also Assem. Com. on Judiciary, Analysis of Assem. Bill No. 205 (2003-2004 Reg. Sess.) as amended Mar. 25, 2003, pp. 4, 7.) As a result, domestic partners who travel or move out of California may lose many or all of the rights conveyed by the Domestic Partner Act. ( Knight v. Superior Court, supra, 128 Cal.App.4th at p. 31.) Moreover, the prerequisites for forming a domestic partnership, and the mechanisms for terminating such a partnership, differ in significant ways from marriage. (See Knight v. Superior Court, supra, 128 Cal.App.4th at pp. 30-31.) A same-sex couple may form a domestic partnership simply by filing a "Declaration of Domestic Partnership" form with the Secretary of State (Fam. Code, § 298.5), and under certain circumstances they may terminate the partnership simply by filing a corresponding "Notice of Termination of Domestic Partnership" form. (Fam. Code, § 299.) In contrast, marriages must be licensed and solemnized in some form of ceremony (Fam. Code, §§ 300, 420), and even the most summary dissolution of a marriage requires judicial proceedings. (Fam. Code, §§ 2400-2403.) Consideration of these differences led the Third District Court of Appeal to observe that "marriage is considered a more substantial relationship and is accorded a greater stature than a domestic partnership." ( Knight v. Superior Court, supra, 128 Cal.App.4th at p. 31.) While this may be true, the Legislature declared that the 2003 Domestic Partner Act was intended to serve a broad remedial goal of "help[ing] California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state's interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises." (Stats. 2003, ch. 421, § 1, subd. (a); see Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at p. 838; Bouley v. Long Beach Memorial Medical Center (2005) 127 Cal.App.4th 601, 612 [ 25 Cal.Rptr.3d 813].) Having found that "despite longstanding social and economic discrimination, many lesbian, gay, and bisexual Californians have formed lasting, committed, and caring relationships with persons of the same sex," the Legislature determined that expanding the rights and responsibilities of registered domestic partners "would further California's interests in promoting family relationships and protecting family members during life crises, and would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the requirements of the California Constitution." (Stats. 2003, ch. 421, § 1, subd. (b).) Contrary to Knight's observation about the greater stature of marriage, these legislative declarations and the statutory language of Family Code, section 297.5 recently led the Supreme Court to conclude that "a chief goal of the Domestic Partner Act is to equalize the status of registered domestic partners and married couples." ( Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at p. 839.) Our review of domestic partnership laws would not be complete without a discussion of the Legislature's recent attempt to extend marriage rights to same-sex couples. In 2005, Assemblyman Mark Leno introduced a bill to enact the Religious Freedom and Civil Marriage Protection Act. (Legis. Counsel's Dig., Assem. Bill No. 849 (2005-2006 Reg. Sess.) p. 1.) Assembly Bill No. 849 recited legislative findings that (1) gender-specific language added by the 1977 amendments to the marriage laws (Fam. Code, § 300 et seq.) discriminates against same-sex couples; (2) the exclusion of same-sex couples from marriage violates the rights of gays and lesbians under the California Constitution; (3) California's same-sex couples are harmed in various ways by their exclusion from marriage; and (4) "[t]he Legislature has an interest in encouraging stable relationships regardless of the gender or sexual orientation of the partners. The benefits that accrue to the general community when couples undertake the mutual obligations of marriage accrue regardless of the gender or sexual orientation of the partners." (Assem. Bill No. 849 (2005-2006 Reg. Sess.) as amended June 28, 2005, § 3, subds. (d), (f), (g) (j).) With a declared intent to "correct the constitutional infirmities" of the marriage laws ( id., § 8), the bill would have amended Family Code sections 300 through 302 to remove all gender-specific terms. (Assem. Bill No. 849 (2005-2006 Reg. Sess.) as amended June 28, 2005, §§ 4-6.) Recognizing its inability to correct any such problems in Family Code section 308.5, due to its enactment by initiative, the Legislature declared Assembly Bill No. 849 was not intended to alter or amend the prohibition in section 308.5 against recognizing same-sex marriages entered outside California. (Assem. Bill No. 849 (2005-2006 Reg. Sess.) as amended June 28, 2005, §§ 3, subd. (k), 8.) Finally, the bill provided that no clergy or religious official would be required to solemnize a marriage in violation of his or her constitutional right to free exercise of religion. ( Id., § 7.) Although Assembly Bill No. 849 (2005-2006 Reg. Sess.) passed both houses of the Legislature in September 2005, it was vetoed by the Governor. In his veto message, Governor Schwarzenegger explained that while he supported domestic partnerships for gay and lesbian couples, he did not believe the Legislature could amend Family Code section 308.5 without submitting the provision for voter approval. (Governor's veto message to Assem. on Assem. Bill No. 849 (Sept. 29, 2005) Recess J. No. 4 (2005-2006 Reg. Sess.) pp. 3737-3738.) Moreover, because the constitutionality of the marriage laws was pending before this appellate court at the time, the Governor believed Assembly Bill No. 849 would add "confusion" to the constitutional issues under review. ( Ibid.) He remarked, "If the ban of same-sex marriage is unconstitutional, this bill is not necessary. If the ban is constitutional, this bill is ineffective." ( Ibid.)

III. Respondents' Constitutional Claims Respondents claim Family Code provisions limiting marriage to unions between a man and a woman violate their fundamental right to marry, under the due process and equal protection clauses of the California Constitution, and discriminate against them on the basis of gender and sexual orientation, in violation of the equal protection clause. (Cal. Const., art. I, § 7, subd. (a) ["A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . ."].) Respondents also argue the marriage laws violate their constitutional rights to privacy and freedom of expression and association. (Cal. Const., art. I, §§ 1, 2.) A two-tiered analysis is typically used to determine the constitutionality of laws challenged under the equal protection clause, depending upon the classification involved or the nature of the interest affected. ( D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16-17 [ 112 Cal.Rptr. 786, 520 P.2d 10]; Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16 [ 95 Cal.Rptr. 329, 485 P.2d 529].) "Although normally any rational connection between distinctions drawn by a statute and the legitimate purpose thereof will suffice to uphold the statute's constitutionality [citation], closer scrutiny is afforded a statute which affects fundamental interests or employs a suspect classification. [Citations.]" ( In re Gary W. (1971) 5 Cal.3d 296, 306 [ 96 Cal.Rptr. 1, 486 P.2d 1201].) If a law abridges a fundamental right, or employs a suspect classification, it is reviewed under the strict scrutiny test, under which " the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose." ( D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 17; see also Serrano v. Priest (1976) 18 Cal.3d 728, 761 [ 135 Cal.Rptr. 345, 557 P.2d 929].) If the law does not impact a fundamental right or employ a suspect classification, we review it under the less stringent "rational relationship" test. ( Hardy v. Stumpf (1978) 21 Cal.3d 1, 8 [ 145 Cal.Rptr. 176, 576 P.2d 1342]; D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 16.) Under this standard, which applies to most economic and social welfare legislation, a law passed by the Legislature or the people is presumed to be constitutional, and distinctions drawn by the law must merely "`bear some rational relationship to a conceivable legitimate state purpose.' [Citation.]" ( D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 16.) "Moreover, the burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it." ( Id. at p. 17.) A similar approach is employed in passing upon substantive due process challenges to legislative measures. "In analyzing a substantive due process claim, we first examine the nature of the interest at issue to determine whether it is a `fundamental right' protected by the Fourteenth Amendment. [Citation.] Where there is a fundamental right, we must next determine whether the state has significantly infringed upon this right. [Citation.] If so, we then consider whether an important state interest justifies the infringement. [Citation.]" ( Adoption of Kay C. (1991) 228 Cal.App.3d 741, 748 [ 278 Cal.Rptr. 907].) "In the absence of such factors, `a Legislature does not violate due process so long as an enactment is procedurally fair and reasonably related to a proper legislative goal.' [Citations.]" ( In re Arthur W. (1985) 171 Cal.App.3d 179, 185 [ 217 Cal.Rptr. 183], fn. omitted.) In addressing respondents' constitutional claims, we consider decisions of the United States Supreme Court and other federal courts as persuasive authority because the equal protection provision of the California Constitution is "substantially the equivalent of the equal protection clause of the Fourteenth Amendment. . . ." ( Dept. of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586, 588 [ 43 Cal.Rptr. 329, 400 P.2d 321]; see Manduley v. Superior Court (2002) 27 Cal.4th 537, 571-572 [117 Cal.Rptr.2d 168, 41 P.3d 3]; Children's Hospital Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 769 [ 118 Cal.Rptr.2d 629].) However, "it is well established that the California Constitution `is, and always has been, a document of independent force' [citation], and that the rights embodied in and protected by the state Constitution are not invariably identical to the rights contained in the federal Constitution. [Citation.]" ( American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 325 [ 66 Cal.Rptr.2d 210, 940 P.2d 797].) In the area of civil liberties, for example, the California Supreme Court has observed that "`our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.' [Citations.]" ( Serrano v. Priest, supra, 18 Cal.3d at pp. 764-765.) A. No Fundamental Right to Marriage Between Same-sex Partners Has Been Recognized. The due process clause of the Fourteenth Amendment includes a substantive component that forbids the government from infringing certain fundamental liberty interests unless the infringement is narrowly tailored to serve a compelling state interest. ( Reno v. Flores (1993) 507 U.S. 292, 301-302 [ 123 L.Ed.2d 1, 113 S.Ct. 1439]; Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 939-940 [ 72 Cal.Rptr.2d 871, 952 P.2d 1139].) Impairment of a fundamental right or liberty interest is similarly prohibited under equal protection principles. (See, e.g., Zablocki v. Redhail (1978) 434 U.S. 374, 381-382 [ 54 L.Ed.2d 618, 98 S.Ct. 673] [law infringing fundamental right to marry violated equal protection]; Perez v. Sharp (1948) 32 Cal.2d 711, 714, 731-732 [ 198 P.2d 17] [same].) As is typically the case with substantive due process claims, the question whether California's marriage laws infringe upon a fundamental right depends almost entirely on how that right is defined. Undoubtedly, all citizens have a fundamental constitutional right to marry. ( Zablocki v. Redhail, supra, 434 U.S. at pp. 383-386; Loving v. Virginia (1967) 388 U.S. 1, 12 [ 18 L.Ed.2d 1010, 87 S.Ct. 1817]; Skinner v. Oklahoma (1942) 316 U.S. 535, 541 [ 86 L.Ed. 1655, 62 S.Ct. 1110]; Perez v. Sharp, supra, 32 Cal.2d at pp. 714-715.) Even prison inmates, however terrible their crime, have an acknowledged right to marry. ( Turner v. Safley (1987) 482 U.S. 78, 95-96 [ 96 L.Ed.2d 64, 107 S.Ct. 2254]; see also Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1304 [ 120 Cal.Rptr.2d 670].) Moreover, our high court has explained that this fundamental right includes the right to marry the person of one's choice. ( Perez v. Sharp, supra, 32 Cal.2d at p. 715.) Respondents urge us to end the discussion here. Because marriage is a fundamental right that belongs to everyone, respondents reason the Family Code provisions that prevent them from marrying the persons they choose — i.e., their same-sex partners — deprive them of this fundamental right. Language from many historical decisions stressing the importance of the right to marriage supports their position. (See, e.g., Perez v. Sharp, supra, 32 Cal.2d at p. 714 ["Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men"]; Loving v. Virginia, supra, 388 U.S. at p. 12 ["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"]; Skinner v. Oklahoma, supra, 316 U.S. at p. 541 ["Marriage and procreation are fundamental to the very existence and survival of the race"].) However, we cannot ignore the reality that none of these cases addressed the type of union respondents are now urging California to recognize within the institution of marriage. Until very recently, the term "marriage" in court opinions has always referred, either explicitly or implicitly, to the union of a man and a woman. (See, e.g., Elden v. Sheldon (1988) 46 Cal.3d 267, 274-275 [ 250 Cal.Rptr. 254, 758 P.2d 582] [noting, in context of discussing state's interest in promoting marriage, that marriage is accorded special status "`in recognition that "[t]he joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime"'"]; Mott v. Mott (1890) 82 Cal. 413, 416 [22 P. 1140] [describing marriage as a civil contract "`by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge toward each other the duties imposed by law on the relation of husband and wife'"].) When cases challenging the constitutionality of marriage laws were first filed in the 1970's, courts dismissed the idea of same-sex marriage as a definitional impossibility. (E.g., Adams v. Howerton (C.D.Cal. 1980) 486 F.Supp. 1119, 1122 ["The term `marriage?' . . . necessarily and exclusively involves a contract, a status, and a relationship between persons of different sexes"]; Jones v. Hallahan (Ky.Ct.App. 1973) 501 S.W.2d 588, 589 ["appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Court Clerk . . . to issue them a license, but rather by their own incapability to enter into a marriage as that term is defined"]; Singer v. Hara (1974) 11 Wn.App. 247 [ 522 P.2d 1187, 1192] ["appellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex"].) The reaction of these courts is not surprising, because "there is a long history in this country of defining marriage as a relation between one man and one woman. . . ." ( Lockyer, supra, 33 Cal.4th at p. 1127 (conc. dis. opn. of Kennard, J.).) This is not to say that marriage can never be defined to include same-sex unions. As noted, civil marriage in California is based entirely on statutory law. ( Lockyer, supra, 33 Cal.4th at p. 1074.) Thus, if the Legislature someday amends Family Code section 300 to omit gender references, the definition of marriage in this state will encompass same-sex unions. "The Court here does not hold marriage must remain a heterosexual institution." ( Smelt v. County of Orange (C.D.Cal. 2005) 374 F.Supp.2d 861, 878, fn. 22, vacated on another ground (9th Cir. 2006) 447 F.3d 673.) However, it is important to acknowledge the historical definition of marriage because this definition limits the precedential value of cases discussing the fundamental right to marriage. No authority binding upon us — from California appellate courts to the United States Supreme Court — has ever held or suggested that individuals have a fundamental constitutional right to enter the public institution of marriage with someone of the same sex. Although appellants are probably correct in asserting that marriage is an evolving institution, and that the idea of same-sex marriage is gaining acceptance around the world, they do not dispute the historical understanding of marriage as opposite-sex in nature, and this understanding must inform our consideration of the relevant case law. (See Hernandez v. Robles, supra, ___ N.E.2d at p. ___ [ 2006 WL 1835429] (conc. opn. of Graffeo, J.) ["[T]o 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 U.S. Supreme Court . . . to recognize marriage as a fundamental right in the first place"].) Whereas respondents frame the fundamental right at issue generically, as the right to marriage, appellants argue the interest truly at issue here is the more narrow right to same-sex marriage. In considering which side has the better definition of the right at stake, we heed the guiding principle that substantive due process analysis "must begin with a careful description of the asserted right." ( Reno v. Flores, supra, 507 U.S. at p. 302; see also Washington v. Glucksberg (1997) 521 U.S. 702, 721 [ 138 L.Ed.2d 772, 117 S.Ct. 2258].) As our Supreme Court has explained, this "`careful description'" must be "concrete and particularized, rather than abstract and general." ( Dawn D. v. Superior Court, supra, 17 Cal.4th at p. 940.) Judicial restraint in the area of defining fundamental rights is especially important because "`[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," [citation], lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court, [citation].' [Citation.]" ( Id. at p. 939, quoting Washington v. Glucksberg, supra, 521 U.S. at p. 720.) Thus, the judicial branch has generally been reluctant to expand the catalog of rights protected as fundamental. ( Washington v. Glucksberg, supra, 521 U.S. at p. 720; Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 141 [ 29 Cal.Rptr.3d 553].) Considering the importance of judicial restraint in this area, we must agree with appellants that, carefully described, the right at issue in these cases is the right to same-sex marriage, not simply marriage. Just as the United States Supreme Court determined the right before it in Glucksberg was the right to assisted suicide, and not a more generic "right to die" or right to control the manner of one's death ( Washington v. Glucksberg, supra, 521 U.S. at pp. 722-723), we must be as precise as possible about the right being asserted by the parties before us. As discussed, the term "marriage" has traditionally been understood to describe only opposite-sex unions. Respondents, who are as free as anyone to enter such opposite-sex marriages, clearly seek something different here. Although the Woo respondents forcefully argue that a fundamental right should not be defined based on the group that is seeking to exercise it, the due process clause does not require us to blind ourselves to reality. Where the identity of individuals who claim a fundamental right is relevant in defining the precise liberty interest asserted, courts have not ignored such pertinent facts. For example, in Dawn D. v. Superior Court, a man who claimed to be the biological father of a child born during the mother's marriage to another man challenged a statutory presumption that favored the mother's husband as the child's natural father. ( Dawn D. v. Superior Court, supra, 17 Cal.4th at pp. 934-935.) Rather than defining the constitutional liberty interest broadly as the claimant's right to have an opportunity to develop a parental relationship with his child (see id. at p. 935), our Supreme Court narrowly defined the right, consistent with Glucksberg, as the interest of an alleged biological father "in establishing a relationship with his child born to a woman married to another man at the time of the child's conception and birth." ( Dawn D. v. Superior Court, supra, 17 Cal.4th at p. 941.) Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone. For example, although the ability to make personal decisions regarding child rearing and education has been recognized as a fundamental right (see, e.g., Pierce v. Society of Sisters (1925) 268 U.S. 510, 534-535 [ 69 L.Ed. 1070, 45 S.Ct. 571]), this right is irrelevant to people who do not have children. Yet, everyone who has children enjoys this fundamental right to control their upbringing. A similar analogy applies in the case of marriage. Everyone has a fundamental right to "marriage," but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings. Furthermore, for purposes of a due process analysis, only rights that are "objectively, `deeply rooted in this Nation's history and tradition,' [citations] and `implicit in the concept of ordered liberty,' such that `neither liberty nor justice would exist if they were sacrificed'" are recognized as fundamental. ( Washington v. Glucksberg, supra, 521 U.S. at pp. 720-721; see Dawn D. v. Superior Court, supra, 17 Cal.4th at p. 940; Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 708 [ 34 Cal.Rptr.3d 19].) It is this prong of the analysis that dooms respondents' fundamental rights claim. Everyone agrees there is no historical tradition of same-sex marriage in this country. Quite the contrary. Until just three years ago, United States Supreme Court precedent permitted states to criminalize intimate homosexual conduct. (See Lawrence v. Texas (2003) 539 U.S. 558 [ 156 L.Ed.2d 508, 123 S.Ct. 2472], overruling Bowers v. Hardwick (1986) 478 U.S. 186 [ 92 L.Ed.2d 140, 106 S.Ct. 2841].) Not surprisingly, given Bowers's sanction of such a severe curtailment of the liberty of gays and lesbians, the issue of whether states should or must permit marriage between same-sex partners has only recently come into public debate. Only one state currently allows same-sex couples to enter the institution of marriage itself, i.e., as opposed to alternative legal relationships such as civil unions or domestic partnerships ( Goodridge v. Department of Public Health, supra, 798 N.E.2d 941), and the Mssachusetts Supreme Judicial Court's decision establishing this right has been controversial. (See, e.g., Note, Civil Partnership in the United Kingdom and a Moderate Proposal for Change in the United States (2005) 22 Ariz. J. Internat. Comparative L. 613, 630-631 [describing the controversy engendered by Goodridge]; see also Lewis v. Harris, supra, 378 N.J.Super. at p. 193 [ 875 A.2d 259] [concluding from "the strongly negative public reactions" to Goodridge, and similar decisions from lower courts of other states, that "there is not yet any public consensus favoring recognition of same-sex marriage"].) Several other states have reacted negatively by, for example, amending their constitutions to prohibit same-sex marriage. (See Stein, Symposium on Abolishing Civil Marriage: An Introduction (2006) 27 Cardozo L.Rev. 1155, 1157, fn. 12 [noting, as of January 2006, "39 states [had] either passed laws or amended their constitutions (or done both) to prohibit same-sex marriages, to deny recognition of same-sex marriages from other jurisdictions, and/or to deny recognition of other types of same-sex relationships"].) Nevertheless, recognition of the rights and liberties of gays and lesbians is progressing swiftly, and "our laws and traditions in the past half century are of most relevance" in this area. ( Lawrence v. Texas, supra, 539 U.S. at pp. 571-572.) Even the recent history of the last 50 years, however, does not demonstrate the existence of a "deeply rooted" right to or practice of same-sex marriage. While same-sex relationships have undeniably gained greater societal and legal acceptance, the simple fact is that same-sex marriage has never existed before. The novelty of this interest, more than anything else, is what precludes its recognition as a constitutionally protected fundamental right. (See Smelt v. County of Orange, supra, 374 F.Supp.2d at p. 878 ["A definition of marriage only recognized in Massachusetts and for less than two years cannot be said to be `deeply rooted in this Nation's history and tradition' of the last half century"]; see also Coshow v. City of Escondido, supra, 132 Cal.App.4th at p. 709 [noting the "mere novelty" of an asserted fundamental right "is sufficient to create a doubt" whether it is so deeply rooted in our country's traditions and conscience as to be considered fundamental]; Duncan, Legislative Deference the Novelty of Same-Sex Marriage (2005) 16 Stan. L. Pol'y. Rev. 83, 86 ["To this point, no court has ever held that same-sex marriage is deeply rooted in a state's history and tradition"].) Respondents argue it is illogical to require that a right long denied by law be supported by a deeply rooted tradition. Of course no such tradition will be found if the people asserting the right have been legally precluded from exercising it. For example, when our Supreme Court struck down California's antimiscegenation laws in Perez v. Sharp, supra, 32 Cal.2d 711, it did not ask whether there was a "deeply rooted tradition of interracial marriage." Nor did the United States Supreme Court when it addressed this issue on a national scale. (See Loving v. Virginia, supra, 388 U.S. 1.) On the surface, the interracial marriage cases appear to provide compelling support for finding gays and lesbians have a fundamental right to marry their same-sex partners. However, upon closer inspection, the analogy is flawed. The central holdings of Perez and Loving are that laws prohibiting interracial marriage constitute invidious racial discrimination in violation of the equal protection clause. ( Loving v. Virginia, supra, 388 U.S. at p. 12 ["There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause"]; Perez v. Sharp, supra, 32 Cal.2d at p. 718 ["By restricting the individual's right to marry on the basis of race alone, [antimiscegenation statutes] violate the equal protection of the laws clause of the United State Constitution"].) These laws were subjected to strict scrutiny because they drew distinctions based solely on the race of potential spouses, and race has long been recognized as a suspect classification. (See Loving v. Virginia, supra, 388 U.S. at pp. 11-12; Perez v. Sharp, supra, 32 Cal.2d at pp. 718-719.) To be sure, the cases also held antimiscegenation laws deprived the participants of their fundamental right to marriage, but this holding cannot be divorced from the laws' racially discriminatory context. The laws were doubly evil for equal protection purposes because they denied people a fundamental right (marriage) based upon the most suspect of classifications (race). (See Loving v. Virginia, supra, 388 U.S. at p. 12 [the Constitution requires "that the freedom of choice to marry not be restricted by invidious racial discriminations"]; Perez v. Sharp, supra, 32 Cal.2d at p. 715 [laws infringing fundamental right to marry "must be based upon more than prejudice and must be free from oppressive discrimination" to satisfy the Constitution].) Moreover, although antimiscegenation laws had been around for many years when they were declared invalid (see Perez v. Sharp, supra, 32 Cal.2d at pp. 746-748 (dis. opn. of Shenk, J.) [tracing history of these laws]), the Perez and Loving decisions contain no indication that interracial marriages were regarded at the time as so unprecedented that recognizing them would work a fundamental change in the definition of marriage itself. (See Smelt v. County of Orange, supra, 374 F.Supp.2d at p. 879 [observing "there is nothing in Loving that suggests an extension of the definition of the fundamental right"].) Because marriage in this state has always been defined, implicitly or explicitly, as the union of opposite-sex individuals, the fundamental right respondents urge us to recognize requires a redefinition of the term "marriage." Courts in this state simply do not have authority to redefine marriage. In California, "`the Legislature has full control of the subject of marriage and may fix the conditions under which the marital status may be created or terminated. . . .' [Citation.]" ( Lockyer, supra, 33 Cal.4th at p. 1074.) The Legislature's power to regulate marriage is thus exclusive, and subject only to constitutional restrictions. ( Ibid. ["`The regulation of marriage and divorce is solely within the province of the Legislature, except as the same may be restricted by the Constitution'"]; Estate of DePasse, supra, 97 Cal.App.4th at p. 99.) Our role is limited to determining whether the Legislature's definition comports with constitutional standards. Were we to expand the definition of marriage to include same-sex unions, we would overstep our bounds as a coequal branch of government. (See Dawn D. v. Superior Court, supra, 17 Cal.4th at p. 939 [courts must exercise caution in entertaining substantive due process challenges lest they assume an improper policymaking role]; see also Hernandez v. Robles, supra, 26 A.D.3d at p. 102 [805 N.Y.S.2d at p. 358] [in "purportedly creat[ing] a new constitutional right" to same-sex marriage, lower court exceeded its constitutional mandate and usurped legislature's function].) "While such a change of a basic element of the institution may eventually find favor with the Legislature" — and perhaps it will sooner rather than later, if the passage of Assembly Bill No. 849 is any indication — "we are not persuaded that the Due Process Clause requires a judicial redefinition of marriage." ( Samuels v. New York State Dept. of Health (2006) 29 A.D.3d 9 [ 811 N.Y.S.2d 136, 142]; see also Goodridge v. Department of Public Health, supra, 798 N.E.2d at p. 978 (dis. opn. of Spina, J.) ["The purpose of substantive due process is to protect existing rights, not to create new rights"].) We do not presume to hold same-sex marriage will never enjoy the same constitutional protection as is accorded to opposite-sex marriage. "Constitutional concepts are not static" ( People v. Belous (1969) 71 Cal.2d 954, 967 [ 80 Cal.Rptr. 354, 458 P.2d 194]), and Californians' evolving notions of equality may eventually lead to the recognition of a right to same-sex marriage and its ultimate status as a constitutionally guaranteed right. However, these developments are still in their infancy, and the courts may not compel the change respondents seek. "[W]hile same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because . . . members of this court have dictated it." ( Andersen v. King County, supra, 138 P.3d at p. 969.) B. The Marriage Laws Do Not Discriminate Based on Gender Respondents also claim California's marriage laws impermissibly discriminate on the basis of gender. "Public policy in California strongly supports eradication of discrimination based on sex." ( Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 36 [ 219 Cal.Rptr. 133, 707 P.2d 195].) Indeed, gender discrimination is one area in which the California Constitution has been construed to provide more protection than the federal Constitution. (See Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at pp. 17-19; Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at pp. 31-32, 39.) Classifications based on gender are therefore considered "suspect" in equal protection analyses under the California Constitution, and laws that discriminate based on sex are subject to strict scrutiny. ( Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527, 564 [ 10 Cal.Rptr.3d 283, 85 P.3d 67]; Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at p. 17.) The trial court concluded the marriage laws are discriminatory, reasoning: "If a person, male or female, wishes to marry, then he or she may do so as long as the intended spouse is of a different gender. It is the gender of the intended spouse that is the sole determining factor." Obviously, however, the opposite-sex requirement for marriage applies regardless of the applicant's gender. The laws treat men and women exactly the same, in that neither group is permitted to marry a person of the same gender. We fail to see how a law that merely mentions gender can be labeled "discriminatory" when it does not disadvantage either group. (See Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 559-560 [ 101 Cal.Rptr.2d 653, 12 P.3d 1068] ["`[D]iscriminate' means `to make distinctions in treatment; show partiality ( in favor of) or prejudice ( against)'"]; Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at p. 45 ["where the operation of the law does not differ between one individual and another based upon a suspect classification, strict scrutiny is not required even though the law might mention matters such as race or gender"]; cf. Gay Law Students Assn. v. Pacific Tel. Tel. Co. (1979) 24 Cal.3d 458, 490 [ 156 Cal.Rptr. 14, 595 P.2d 592] [rejecting argument that discrimination against homosexuals was effectively "sex discrimination" prohibited by statute because it was discrimination based on the gender of the homosexual's partner].) All of the leading sex-discrimination decisions from the United States Supreme Court have involved statutes that singled out men or women as a class for unequal treatment. ( Smelt v. County of Orange, supra, 374 F.Supp.2d at pp. 876-877; Baker v. State, supra, 744 A.2d at p. 880, fn. 13; see, e.g., United States v. Virginia (1996) 518 U.S. 515, 519-520 [ 135 L.Ed.2d 735, 116 S.Ct. 2264] [law excluded women from attending Virginia Military Institute]; Mississippi University for Women v. Hogan, supra, 458 U.S. at p. 719 [policy prevented men from attending state-sponsored nursing school]; Craig v. Boren (1976) 429 U.S. 190, 191-192 [ 50 L.Ed.2d 397, 97 S.Ct. 451] [law allowed women to purchase low-alcohol beer at an earlier age than men].) The same is true for the California Supreme Court's gender discrimination cases. (See, e.g., Arp v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 395, 398-399, 407 [ 138 Cal.Rptr. 293, 563 P.2d 849] [invalidating statute that created conclusive presumption of dependency, for establishing entitlement to death benefits, to widows but not widowers]; Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at pp. 6, 20-22 [invalidating statute that prevented women from working as bartenders unless they were liquor licensees, wives of a licensee, or shareholders in a corporate licensee].) Despite acknowledging that the marriage laws treat "all men and all women . . . the same," the trial court asserted this equality is beside the point because the laws establish explicit gender-based classifications. Similarly, respondents argue proof of disparate treatment is not required because the laws facially classify by gender. However, we are aware of no controlling authority imposing strict constitutional scrutiny on a law that merely mentions gender, without treating either group differently. Rather than dealing in semantics, a court's primary concern in analyzing gender classifications under the equal protection clause is to ensure equal treatment for men and women. (See Koire v. Metro Car Wash, supra, 40 Cal.3d at p. 37 ["public policy in California mandates the equal treatment of men and women"]; Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 364 [ 216 Cal.Rptr. 748, 703 P.2d 88] [under the equal protection clause, "a sovereign may not subject men and women to disparate treatment"]; cf. Boren v. Department of Employment Dev. (1976) 59 Cal.App.3d 250, 257 [ 130 Cal.Rptr. 683] [more important than a statute's neutral language is whether it has the ultimate effect of creating unequal treatment].) Indeed, unequal treatment is always the touchstone of an equal protection analysis. (See People v. Wilkinson (2004) 33 Cal.4th 821, 836 [ 16 Cal.Rptr.3d 420, 94 P.3d 551] [noting, in the context of a criminal's defendant's equal protection claim, "[i]t is a fundamental principle that, `[t]o succeed on [a] claim under the equal protection clause, [a defendant] first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner'"].) Several respondents rely on cases striking antimiscegenation laws as support for their positions. Just as today's marriage laws prohibit men and women equally from entering into same-sex marriages, respondents argue, antimiscegenation laws from the past century prohibited persons of all races equally from marrying outside their race. In the interracial marriage context, the United State Supreme Court "reject[ed] the notion that the mere `equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations. . . ." ( Loving v. Virginia, supra, 388 U.S. at p. 8.) Several years earlier, the California Supreme Court rejected the same argument, stating: "The decisive question, however, is not whether different races, each considered as a group, are equally treated. The right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals. [Citations.]" ( Perez v. Sharp, supra, 32 Cal.2d at p. 716; see also Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at p. 35 [noting rights guaranteed by the equal protection clause are personal rights belonging to the individual].) The analogy to statutes prohibiting interracial marriage is not entirely apt, however. Close examination of Perez and Loving reveals that these courts were especially troubled by the challenged laws' reliance on express racial classifications. Noting that "[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination" ( Loving v. Virginia, supra, 388 U.S. at p. 10), the Loving court held that all laws employing racial classifications must be subjected to strict scrutiny, and it refused to make an exception for laws that appear to affect all races equally. ( Id. at p. 9 ["the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race"]; see also Perez v. Sharp, supra, 32 Cal.2d at p. 719 [regarding California's antimiscegenation statute "with great suspicion" due to its classification based on racial groups].) Moreover, the Supreme Court looked beyond the apparently neutral classification scheme and determined that the true purpose of Virginia's antimiscegenation law was "to maintain White Supremacy." ( Loving v. Virginia, supra, 388 U.S. at p. 11.) The law punished only marriages "between `a white person and a colored person,'" but did not prevent intermarriage between non-White persons of different ethnicities. ( Id. at pp. 4-5; see also Perez v. Sharp, supra, 32 Cal.2d at p. 721 [California law restricted marriages between "white persons" and members of certain other races but left non-White races free to intermarry].) Thus, the high court concluded the law's superficially neutral classification was in reality a vehicle to perpetuate invidious racial discrimination. ( Loving v. Virginia, supra, 388 U.S. at pp. 11-12.) The analogy to respondents' claim of gender discrimination clearly falters on this point. No evidence indicates California's opposite-sex definition of marriage was intended to discriminate against males or females, and respondents do not argue that the purpose of the definition is to discriminate against either gender. If anything, relevant legislative history and voter materials suggest the intent was to single out same-sex couples for disparate treatment. (See, ante, pp. 897-899.) Respondents correctly point out that, during the last century, California has abolished or altered many marriage-related laws because they were based on improper sex-role stereotypes. For example, a husband was once regarded as the owner of all community property in a marriage, and he enjoyed the sole ability to control such marital property. ( Droeger v. Friedman, Sloan Ross (1991) 54 Cal.3d 26, 32 [ 283 Cal.Rptr. 584, 812 P.2d 931].) Our state's community property laws did not become completely gender-neutral until reform legislation was passed 1975. ( Id. at p. 35.) Also illustrative, the Legislature did not make forcible rape of a spouse a crime until 1979. (See People v. Hillard (1989) 212 Cal.App.3d 780, 784 [ 260 Cal.Rptr. 625].) However, this history does not demonstrate that the definition of marriage as male-female can itself be traced to a discriminatory purpose. "It is one thing to show that long-repealed marriage statutes subordinated women to men within the marital relation. It is quite another to demonstrate that the authors of the marriage laws excluded same-sex couples because of incorrect and discriminatory assumptions about gender roles or anxiety about gender-role confusion. That evidence is not before us." ( Baker v. State, supra, 744 A.2d at p. 880, fn. 13.) C. Disparate Impact on Gays and Lesbians Does Not Trigger Strict Scrutiny Although the trial court did not address this issue, we must consider respondents' claim that the marriage statutes are unconstitutional because they discriminate on the basis of sexual orientation. As noted ( ante, fn. 9), the Family Code provisions we are considering make no reference to the sexual orientation of potential marriage partners. California law does not literally prohibit gays and lesbians from marrying; however, it requires those who do to marry someone of the opposite sex. As a practical matter, of course, this requirement renders marriage unavailable to gay and lesbian individuals, whose choice of a life partner will, by definition, be a person of the same sex. Clearly, the statutory definition of marriage as male-female has a disparate impact on gay and lesbian individuals. (See Personnel Administrator of Mass. v. Feeney (1979) 442 U.S. 256, 272-274 [ 60 L.Ed.2d 870, 99 S.Ct. 2282] [disparate impact of a facially neutral law supports equal protection claim if the impact can be traced to a discriminatory purpose].) As such, the marriage laws implicitly classify along sexual orientation lines. (Cf. Lockyer, supra, 33 Cal.4th at pp. 1126, 1128, fn. 2 (conc. dis. opn. of Kennard, J.) [noting California law restricts marriage to "heterosexual couples"]; id. at p. 1135 (conc. dis. opn. of Werdegar, J.) [contrasting "heterosexual marriages" with same-sex unions that were voided by the majority opinion].) Moreover, the Legislature's manifest purpose in enacting the 1977 amendments to Family Code section 300, was to exclude same-sex couples from the institution of marriage. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607 (1977-1978 Reg. Sess.) as amended May 23, 1977, p. 1 [stating the purpose of Assembly Bill No. 607 was "to prohibit persons of the same sex from entering lawful marriage"]; see Lockyer, supra, 33 Cal.4th at p. 1076, fn. 11 [legislative history demonstrates the bill's purpose was to prohibit same-sex marriage].) Likewise, the exclusionary intent of California voters who passed Proposition 22 could not be more clear. Ballot arguments in favor of the initiative raised the specter of same-sex couples moving to this state and forcing California to recognize marriages they entered elsewhere, even though California law would not have authorized the marriage. (See Voter Information Guide, Primary Elec. (Mar. 7, 2000) argument in favor of Prop. 22, p. 52 ["If [judges in other states] succeed, California may have to recognize new kinds of marriages, even though most people believe marriage should be between a man and a woman"]; id., rebuttal to argument against Prop. 22, p. 53 [" UNLESS WE PASS PROPOSITION 22, LEGAL LOOPHOLES COULD FORCE CALIFORNIA TO RECOGNIZE `SAME-SEX MARRIAGES' PERFORMED IN OTHER STATES"].) The intent of this measure, as with the Legislature's 1977 Family Code amendments, was clearly to prohibit gays and lesbians from marrying their same-sex partners. However, though we agree with respondents that the marriage statutes implicitly classify based on sexual orientation, we do not agree that this classification requires that the laws be subjected to strict scrutiny. There is no precedent for doing so. The equal protection clauses of the United States and California Constitutions prohibit arbitrary discrimination against any class of individuals, including homosexuals. ( Gay Law Students Assn. v. Pacific Tel. Tel. Co., supra, 24 Cal.3d at p. 467; Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1025 [ 2 Cal.Rptr.2d 648].) But, "[w]hile all citizens are entitled to equal protection, the standard of review to be employed in analyzing legislation which singles out a particular group does depend on whether the group is classified as `suspect,' as well as whether the legislation impinges upon a fundamental right. If a suspect class or fundamental right is involved, the court examines legislation under the `strict scrutiny' standard; otherwise, a `rational basis' test is generally employed. [Citation.]" ( Citizens for Responsible Behavior v. Superior Court, supra, 1 Cal.App.4th at p. 1025.) Having concluded respondents are not seeking to exercise a fundamental right, we are therefore called upon to decide whether sexual orientation is a suspect classification for purposes of equal protection analysis. Unfortunately, prior case law does not provide a ready answer. Lower federal courts have held that sexual orientation does not constitute a suspect or quasi-suspect classification. (E.g., Holmes v. California Army National Guard, supra, 124 F.3d at p. 1132; High Tech Gays v. Defense Ind. Sec. Clearance Off. (9th Cir. 1990) 895 F.2d 563, 571; Padula v. Webster (1987) 261 U.S. App. D.C. 365 [ 822 F.2d 97, 102-103].) However, these decisions generally relied on the United States Supreme Court's now-disfavored decision in Bowers v. Hardwick, supra, 478 U.S. 186, overruled in Lawrence v. Texas, supra, 539 U.S. 558. In Bowers, the Supreme Court concluded there was no fundamental right, protected by substantive due process, to engage in homosexual sodomy. ( Bowers v. Hardwick, supra, 478 U.S. at pp. 190-192.) The Ninth Circuit Court of Appeals reasoned that this holding foreclosed heightened protection for homosexuals under the equal protection clause: "[B]y the [ Bowers v.] Hardwick majority holding that the Constitution confers no fundamental right upon homosexuals to engage in sodomy, and because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes. [Citations.]" ( High Tech Gays v. Defense Ind. Sec. Clearance Off., supra, 895 F.2d at p. 571; see also Padula v. Webster, supra, 822 F.2d at p. 103 ["If the Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal"].) In 2003, however, the United State Supreme Court destroyed the foundation of these arguments when it overturned its 17-year-old decision in Bowers. Noting that the Bowers court had failed to appreciate the liberty interest at stake and had demeaned this interest by framing it only as a right to engage in certain sexual conduct, the Supreme Court held, " Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent." ( Lawrence v. Texas, supra, 539 U.S. at pp. 566-567, 578.) The court also explained it was reexamining Bowers because of the stigma the decision had perpetuated against homosexuals: "When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. . . . [ Bowers's] continuance as precedent demeans the lives of homosexual persons." ( Lawrence v. Texas, supra, 539 U.S. at p. 575.) Despite this forceful repudiation of Bowers, the Lawrence court did not apply strict scrutiny to Texas's antisodomy law. (See Lawrence v. Texas, supra, 539 U.S. at p. 578 [stating the statute "furthers no legitimate state interest"].) Similarly, Justice O'Connor's concurrence concluded the law was invalid under the "more searching form of rational basis review" the court applies to laws that are designed to harm a politically unpopular group. ( Lawrence v. Texas, supra, 539 U.S. at p. 580 (conc. opn. of O'Connor, J.); see also Romer v. Evans (1996) 517 U.S. 620, 632-633 [ 134 L.Ed.2d 855, 116 S.Ct. 1620] [invalidating under rational basis review a state constitutional amendment that prohibited any legislative, executive or judicial action designed to protect homosexuals].) Moreover, the Lawrence majority specifically disclaimed an intention to comment on the constitutionality of laws prohibiting same-sex marriage. ( Lawrence v. Texas, supra, 539 U.S. at p. 578 [noting the case before it did not involve "whether the government must give formal recognition to any relationship that homosexual persons seek to enter"]; see also id. at p. 585 (conc. opn. of O'Connor, J.) [noting invalidation of the antisodomy law "does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review," and suggesting one legitimate state interest for such laws could be "preserving the traditional institution of marriage"]; but see id. at pp. 601, 604-605 (dis. opn. of Scalia, J.) [arguing the majority's insufficiently deferential application of rational basis review portends the ultimate invalidation of state laws limiting marriage to opposite-sex couples].) Lower courts have not seized on Lawrence as authority for imposing heightened scrutiny on laws that classify based on sexual orientation. (See, e.g., In re Kandu, supra, 315 B.R. at pp. 143-144 [noting that, while Lawrence "may indicate a shift in the Supreme Court's treatment of same-sex couples," it did not disturb Ninth Circuit precedent holding homosexuals are not a suspect or quasi-suspect class]; see also State v. Limon (2005) 280 Kan. 275 [ 122 P.3d 22, 29-30] [rejecting argument that Lawrence required heightened scrutiny and applying rational basis test to "Romeo and Juliet" statute that reduced penalties only for heterosexual sex with a minor].) Respondents have alerted us to no decision applying strict scrutiny to a classification based on sexual orientation, and the dissent has identified only one appellate opinion suggesting homosexuals belong to a suspect class. (See Tanner v. OHSU (1998) 157 Or.App. 502 [ 971 P.2d 435, 447] [holding nonmarried homosexual couples are a suspect class under the Oregon Constitution's privileges and immunities clause].) California courts have not decided whether sexual orientation is a suspect classification under our state Constitution's equal protection clause. In Gay Law Students Assn. v. Pacific Tel. Tel. Co., supra, 24 Cal.3d at p. 467, the California Supreme Court held state and federal equal protection principles prohibit arbitrary discrimination "against any class of individuals in employment decisions," including gays and lesbians. However, this holding was based on the fundamental nature of the right to work and the arbitrariness of the employment policy at issue. (See id. at pp. 467-470.) Although the court observed the homosexual community's struggle for equal rights bears close resemblance to the civil rights struggles of African-Americans, women and other minorities ( id. at p. 488), its decision "did not establish homosexuality as a suspect class." ( Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 526, fn. 8 [ 213 Cal.Rptr. 410].) The question was also left unanswered in Citizens for Responsible Behavior v. Superior Court, supra, 1 Cal.App.4th at p. 1013. Although the Court of Appeal invalidated a citizens' initiative that sought to repeal antidiscrimination laws pertaining to sexual orientation and HIV infection, it did so under the rational basis test and expressly declined to decide whether a form of heightened scrutiny should apply. ( Id. at pp. 1025-1026 fn. 8.) For a statutory classification to be considered "suspect" for equal protection purposes, generally three requirements must be met. The defining characteristic must (1) be based upon "an immutable trait"; (2) "bear? no relation to [a person's] ability to perform or contribute to society"; and (3) be associated with a "stigma of inferiority and second class citizenship," manifested by the group's history of legal and social disabilities. ( Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at pp. 18-19.) While the latter two requirements would seem to be readily satisfied in the case of gays and lesbians, the first is more controversial. (See, e.g., Ludwig, Protecting Laws Designed to Remedy Anti-Gay Discrimination from Equal Protection Challenges: The Desirability of Rational Basis Scrutiny (2006) 8 U. Pa. J. Const. L. 513, 552-553 [citing a CBS News/New York Times poll in which respondents were equally divided on the issue of "whether sexuality is a biology-based trait or a choice"]; see also Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L.Rev. 503, 563-567 [concluding advocates' reliance on biological immutability arguments may ultimately impede gay and lesbian rights].) In any event, whether sexual orientation is immutable presents a factual question. The trial court did not conduct an evidentiary hearing, and there is no factual record addressing any of the three suspect classification factors. Nevertheless, despite the complete absence of evidence on these issues, the dissent is prepared to declare sexual orientation a suspect classification based on assertions made by the authors of law review articles and unrelated federal opinions. (Dis. opn., post, at pp. 970-973.) We are not. (Cf. Dean v. District of Columbia (D.C. 1995) 653 A.2d 307, 356-357 (conc. dis. opn. of Ferren, J.) [despite extensive familiarity with relevant articles, a court should not resolve questions about the immutability of sexual orientation "without benefit of a trial record with the right kind of expert testimony, subject to cross-examination"].) Lacking guidance from our Supreme Court or decisions from our sister Courts of Appeal, and lacking even a finding from the trial court on the issue, we decline to forge new ground in this case by declaring sexual orientation to be a suspect classification for purposes of equal protection analysis. Instead, we will follow the lead of the federal courts and other state courts and review the constitutionality of the marriage laws under the rational basis test. (See, e.g., Wilson v. Ake (M.D.Fla. 2005) 354 F.Supp.2d 1298, 1307-1308; In re Kandu, supra, 315 B.R. at pp. 143-144; Andersen v. King County, supra, 138 P.3d at pp. 973-977, 980-985; Hernandez v. Robles, supra, 25 A.D.3d at pp. 103-105 [805 N.Y.S.2d at pp. 360-361].) D. The Marriage Laws Do Not Infringe Other Asserted Constitutional Rights. Finally, we turn to two additional, somewhat contradictory, arguments respondents have raised — i.e., that the opposite-sex definition of marriage violates their constitutional rights to privacy and to freedom of expression. 1. Right of Privacy/Intimate Association Unlike the federal Constitution, the California Constitution contains an explicit guarantee of the right of privacy. (Cal. Const., art. I, § 1; American Academy of Pediatrics v. Lungren, supra, 16 Cal.4th at p. 326.) "[N]ot only is the state constitutional right of privacy embodied in explicit constitutional language not present in the federal Constitution, but past California cases establish that, in many contexts, the scope and application of the state constitutional right of privacy is broader and more protective of privacy than the federal constitutional right of privacy as interpreted by the federal courts. [Citations.]" ( American Academy of Pediatrics v. Lungren, supra, 16 Cal.4th at p. 326.) The Supreme Court has articulated three requirements necessary to support a constitutional invasion of privacy claim: "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." ( Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 [ 26 Cal.Rptr.2d 834, 865 P.2d 633].) The parties have differing views on each of these elements, but they particularly disagree about whether same-sex couples have a legally protected privacy interest that the state is intruding upon by refusing them permission to marry. "Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (`informational privacy'); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (`autonomy privacy')." ( Hill v. National Collegiate Athletic Assn., supra 7 Cal.4th at p. 35.) Respondents are concerned here with the autonomy form of privacy or, perhaps more precisely stated, the freedom of intimate association. (See Warfield v. Peninsula Golf Country Club (1995) 10 Cal.4th 594, 624-625 [ 42 Cal.Rptr.2d 50, 896 P.2d 776] [describing constitutional protection afforded to close family relationships]; see also Ortiz v. Los Angeles Police Relief Assn., supra, 98 Cal.App.4th at p. 1302 [identifying intimate and expressive association as the two types of association protected under the constitutional right of free association].) (32) "Courts have `repeated[ly] acknowledg[ed] . . . a "right of privacy" or "liberty" in matters related to marriage, family, and sex.' ( People v. Belous [, supra,] 71 Cal.2d [at p.] 963 . . .; accord, Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 275 [ 172 Cal.Rptr. 866, 625 P.2d 779].)" ( Ortiz v. Los Angeles Police Relief Assn., supra, 98 Cal.App.4th at p. 1303; see also Griswold v. Connecticut (1965) 381 U.S. 479, 486 [ 14 L.Ed.2d 510, 85 S.Ct. 1678] [describing the marital relationship as "a right of privacy older than the Bill of Rights"].) Similarly, the right to marry one's chosen partner is "virtually synonymous" with the right of intimate association. ( Ortiz v. Los Angeles Police Relief Assn., supra, 98 Cal.App.4th at pp. 1303, 1306.) Relying on Lawrence v. Texas, supra, 539 U.S. 558, respondents argue there is now an acknowledged constitutional right to intimate association with persons of the same sex. This is a fair reading of Lawrence. But the existence of a protected right of privacy in having intimate relations with a same-sex partner does not mean the right to marry, as it has traditionally been understood, must be expanded to encompass a constitutionally protected privacy interest in same-sex marriage. Lawrence addressed the most private of activities between consenting adults and held that states may not criminalize such highly intimate relations based on outdated notions of morality. ( Lawrence v. Texas, supra, 539 U.S. at pp. 567, 571-572, 577-579.) Marriage, however, is much more than a private relationship. To be valid in California, a civil marriage must be licensed and solemnized in some form of ceremony. (Fam. Code, § 306; Estate of DePasse, supra, 97 Cal.App.4th at pp. 103, 106.) More importantly, marriage is revered as a public institution. ( De Burgh v. De Burgh (1952) 39 Cal.2d 858, 863-864 [ 250 P.2d 598].) It is valued not just for the private commitment it fosters between the individuals who marry, but also for its public role in organizing fundamental aspects of our society. (See Maynard v. Hill (1888) 125 U.S. 190, 213 [ 31 L.Ed. 654, 8 S.Ct. 723] [describing marriage as "`not so much the result of private agreement, as of public ordination. . . . It is a great public institution, giving character to our whole civil polity'"]; Elden v. Sheldon, supra, 46 Cal.3d at p. 275 [stating "[t]he policy favoring marriage is `rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society'"].) Our dissenting colleague insists that respondents have a constitutionally protected privacy interest in marrying their same-sex partners yet pointedly ignores the reality that respondents have never enjoyed such a right before. This is not a case in which the state has taken away a person's right to get married (e.g., Zablocki v. Redhail, supra, 434 U.S. at pp. 381-382; Turner v. Safley, supra, 482 U.S. at pp. 95-96) or criminalized certain private sexual conduct ( Lawrence v. Texas, supra, 539 U.S. at pp. 567, 571-572); rather, this is a case in which people who have never had a legal right to marry each other argue that the institution unconstitutionally excludes them. Under these circumstances, the dissent's failure to explain precisely how the marriage laws intrude upon respondents' right to privacy and intimate association is a glaring omission. Moreover, all of the California decisions the dissent cites addressing the right to "autonomy privacy" concern limits that the Constitution places on the government's ability to interfere into an individual's highly personal decisions or affairs. (See, e.g., American Academy of Pediatrics v. Lungren, supra, 16 Cal.4th at pp. 332-334 [holding autonomy privacy right protects decision whether to continue or terminate a pregnancy]; Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 40-41 [finding an autonomy privacy interest in freedom from observation of urination, "a function recognized by social norms as private"]; Ortiz v. Los Angeles Police Relief Assn., supra, 98 Cal.App.4th at pp. 1306-1307, 1312 [concluding termination of employee due to her choice of spouse was an actionable invasion of privacy, but finding it justified by legitimate employer interests]; Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1702 [ 39 Cal.Rptr.2d 65] [rejecting argument that employee's harassment and discharge due to his sexual orientation infringed his right to autonomy privacy]; see also Tom v. City and County of San Francisco (2004) 120 Cal.App.4th 674, 680 [ 16 Cal.Rptr.3d 13] [finding an autonomy privacy interest "in choosing the persons with whom a person will reside, and in excluding others from one's private residence"].) Here, however, the State of California provides benefits for a relationship — civil marriage — and respondents are seeking access to these benefits. The state is not interfering with how respondents conduct personal aspects of their lives; rather, by limiting marriage to opposite-sex couples, it is arguably affording its citizens unequal access to the tangible and intangible benefits marriage provides. This claim is most appropriately analyzed — like other unequal access claims — under equal protection principles. Furthermore, by contorting these privacy holdings to fit same-sex marriage, the dissent stands the notion of "autonomy privacy" on its head: The right to be let alone from government interference is the polar opposite of insistence that the government acknowledge and regulate a particular relationship, and afford it rights and benefits that have historically been reserved for others. The Constitution does not protect every conceivable claim for privacy. "`[N]ot every act which has some impact on personal privacy invokes the protections of [our Constitution]. . . . [A] court should not play the trump card of unconstitutionality to protect absolutely every assertion of individual privacy.' [Citation.]" ( Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 37.) Here, respondents have cited no authority showing the right to marry a same-sex partner has ever been recognized as a legally protected privacy interest. We must interpret and apply the right of privacy consistent with the intent of California voters who added this right to our state Constitution. ( Id. at p. 16.) The Supreme Court has observed that ballot arguments on this subject referred to "the federal constitutional tradition of safeguarding certain intimate and personal decisions from government interference in the form of penal and regulatory laws" but did not "purport to create any unbridled right of personal freedom of action." ( Id. at p. 36; see Leibert v. Transworld Systems, Inc., supra, 32 Cal.App.4th at p. 1702.) Because same-sex marriage has not been regarded as a right of any kind under the federal Constitution or state statutes or common law (see Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 16 [describing legal sources of privacy rights when voters added privacy to the Constitution]), it would be inconsistent with voters' intent to expand our constitutional privacy right to encompass it. Just as the lack of any prior legal recognition of same-sex marriage prevented us from finding it to be a fundamental right, the lack of any precedent for same-sex marriage precludes us from finding it to concern a legally protected privacy interest. The dissent suggests we have somehow abdicated our responsibility to address respondents' privacy claim. Not so. Respondents' briefing on privacy was often cursory and sometimes completely absent. Much of the parties', and our, discussion of issues raised in the dissent proceeds under the rubric of a fundamental rights analysis. The dissent often conflates the fundamental right issue with privacy, following the style of some federal opinions, but nothing obligates the majority to adopt the same approach — especially where the parties have not done so. To the extent a substantial privacy argument has been raised, it has been raised by the dissent. 2. Right of Free Expression The marriage laws do not interfere with the ability of individuals in this state to enter intimate relationships with persons of their choosing, regardless of gender. The laws do not proscribe any form of intimate conduct between same-sex partners. Nor do they prevent same-sex couples from associating with each other or from publicly expressing their mutual commitment through some form of ceremony. Indeed, California provides formal recognition to same-sex relationships in the Domestic Partner Act. (Fam. Code, § 297 et seq.) What the marriage statutes prohibit, however, is the state's recognition of same-sex relationships as "marriage." Although there are expressive aspects to it, entering a marriage is obviously something much more than a communicative act. If the state has legitimate reasons for limiting marriage to opposite-sex couples, then the unavailability for same-sex couples of this one form of expressing commitment — when all other expressions remain available — does not rise to the level of a constitutional violation. The dissent argues the state is constitutionally required to change the traditional definition of marriage in order to afford same-sex couples access to this particular form of expression. (Dis. opn., post, at pp. 949-950.) Contrary to the dissent's suggestion, the holding in Turner v. Safley, supra, 482 U.S. at pages 94 through 95 was not based upon prisoners' First Amendment rights to free expression. We are aware of no constitutional jurisprudence that would require states to make a particular mode of expressive conduct available to all citizens.

IV. The Marriage Laws Withstand Rational Basis Review Because we have concluded the marriage statutes do not abridge a fundamental right or involve a suspect classification, we review them under the "rational basis" test. ( Warden v. State Bar, supra, 21 Cal.4th at p. 644; Hardy v. Stumpf, supra, 21 Cal.3d at p. 8.) As noted, rational basis review is extremely deferential: "It manifests restraint by the judiciary in relation to the discretionary act of a co-equal branch of government; in so doing it invests legislation involving such differentiated treatment with a presumption of constitutionality and `requir[es] merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.' [Citation.]" ( D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 16.) Under this standard of review, we must uphold the challenged law "` if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are "plausible reasons" for [the classification] "our inquiry is at an end."' [Citations.]" ( Warden v. State Bar, supra, 21 Cal.4th at p. 644.) Moreover, the state is under no obligation to produce evidence supporting the rationality of a classification. ( Heller v. Doe (1993) 509 U.S. 312, 320 [ 125 L.Ed.2d 257, 113 S.Ct. 2637].) "`[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.' [Citations.]" ( Warden v. State Bar, supra, 21 Cal.4th at p. 650.) So long as the asserted state interest is a reasonably conceivable justification for the law, "rather than [a] `fictitious purpose? that could not have been within the contemplation of the Legislature'" ( id. at p. 649), "`[i]t is . . . "constitutionally irrelevant whether [the] reasoning in fact underlay the legislative decision"' [citation] or whether the `conceived reason for the challenged distinction actually motivated the legislature.' [Citation.]" ( Id. at p. 650; see also People v. Hofsheier (2006) 37 Cal.4th 1185, 1202 [ 39 Cal.Rptr.3d 821, 129 P.3d 29]; City and County of San Francisco v. Flying Dutchman Park, Inc. (2004) 122 Cal.App.4th 74, 83 [ 18 Cal.Rptr.3d 532].) As challengers of the marriage laws, respondents bear the burden of demonstrating their constitutional invalidity under the rational basis test. ( D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 17.) Under the rational basis test, then, we must decide whether the opposite-sex definition of marriage furthers a legitimate state interest. ( D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 16.) The dissent misapprehends the rational basis test — and the judicial function — when it criticizes us for undertaking "no serious inquiry" into the nature of the interests supporting and served by marriage. (Dis. opn., post, at p. 961.) The dissent argues that these interests apply equally to same-sex couples, and so advocates that the state extend marriage to them. But the court's role is not to look at interests served by an institution to see if it makes sense to expand the institution. That is policymaking. In reviewing the constitutionality of a statute, a court asks only whether valid state interests are served by limits the state has placed on the activity. Our task is to decide whether the challenged limit is constitutional, not whether state policies would be better served by removing the restriction. A. State's Interest in Preserving the Traditional Definition of Marriage Is Legitimate The Attorney General urges us to take a broad view and consider the availability of domestic partnership laws when we assess the constitutionality of laws restricting marriage to opposite-sex couples. He argues the state has a legitimate interest in "maintaining the understanding of marriage that has always existed in California, while declaring that registered domestic partners shall have the same rights, protections and benefits as spouses." Under rational basis review, it is appropriate for us to consider other relevant laws concerning the rights of same-sex couples, such as the Domestic Partner Act. (See Brown v. Merlo (1973) 8 Cal.3d 855, 862 [ 106 Cal.Rptr. 388, 506 P.2d 212] [analysis of constitutional validity need not be confined to the four corners of the challenged statute].) In recent years, the Legislature has worked consistently to expand the legal rights of same-sex domestic partners. ( Bouley v. Long Beach Memorial Medical Center, supra, 127 Cal.App.4th at p. 609.) Through the Domestic Partner Act, California provides one of the most comprehensive systems of rights and benefits for same-sex couples in the country. The Domestic Partner Act gives couples who register as domestic partners substantially "the same rights, protections, and benefits" as married spouses, and imposes upon them "the same responsibilities, obligations, and duties under law" as are imposed on married couples. (Fam. Code, § 297.5, subd. (a); see Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at pp. 837-838.) Indeed, the California Legislature has granted same-sex domestic partners virtually all of the same rights married couples enjoy to the extent it may do so without running afoul of federal law. Despite the differences focused on by respondents and the dissent, our Supreme Court has concluded that, in the Domestic Partner Act, "the Legislature has granted legal recognition comparable to marriage both procedurally and in terms of the substantive rights and obligations granted to and imposed upon the partners, which are supported by policy considerations similar to those that favor marriage. [Citation.]" ( Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at p. 845, italics added.) "Additionally, the Legislature has made it abundantly clear that an important goal of the Domestic Partner Act is to create substantial legal equality between domestic partners and spouses." ( Ibid.) Ignoring legislative declarations in the Domestic Partner Act, and our high court's interpretation of its purpose, the dissent accuses the Act of "stigmatiz[ing] homosexual unions" and insists the "most powerful message" conveyed by a domestic partnership is the couple's "inferior status." (Dis. opn., post, at pp. 979, 978.) We doubt our colleague truly believes that, absent marriage vows, gay and lesbian couples are incapable of creating any meaning for their partnerships beyond oppression and subjugation. In any event, however one regards the symbolic value of domestic partnership, the increase in tangible rights and protections the Domestic Partner Act gives to registered couples cannot be denied. At the same time, in Family Code sections 300 and 308.5, the Legislature has preserved the traditional definition of marriage. Since our Constitution was enacted, "marriage" has referred to the legal union between a man and a woman. (See, e.g., Murphy v. Ramsey (1885) 114 U.S. 15, 45 [ 29 L.Ed. 47, 5 S.Ct. 747] [describing "the union for life of one man and one woman in the holy estate of matrimony" as "the sure foundation of all that is stable and noble in our civilization"].) This traditional definition of marriage is echoed in federal law ( 1 U.S.C. § 7) and, currently, in the laws of every other state except Massachusetts. (See Goodridge v. Department of Public Health, supra, 798 N.E.2d at p. 965 [observing court's decision authorizing same-sex marriage "marks a significant change in the definition of marriage as it has been inherited from the common law and understood by many societies for centuries"].) Certainly, the state has a strong interest in promoting marriage. (See, e.g., Elden v. Sheldon, supra, 46 Cal.3d at p. 275 [explaining this policy is based on the institutional function marriage serves in defining social roles and responsibilities].) This same interest in supporting stable family relationships is served by the Legislature's expansion of domestic partnership rights. "[T]he Legislature was entitled to conclude that enactment of a statute encouraging same-sex couples to register as domestic partners is beneficial to society in the same way as is encouraging heterosexual couples to marry. It provides an institutional basis for defining their fundamental rights and responsibilities, which is essential to an organized and civilized society and to promote family stability." ( Knight v. Superior Court, supra, 128 Cal.App.4th at p. 29; see also Bouley v. Long Beach Memorial Medical Center, supra, 127 Cal.App.4th at p. 611 [identifying a "significant public interest," comparable to the interest supporting marriage, in "promoting stable families and individual rights and responsibilities through the extension of rights to domestic partners"].) The state policy favoring domestic partnerships is thus similar to, and intertwined with, the policy favoring marriage. (See Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at pp. 845-847 [noting the policies both seek to promote and protect families].) If the Domestic Partner Act does not go far enough in serving this policy, the Legislature can amend the law, but it is not for the court to implement this change. Under the highly deferential standard of review that applies, we believe it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union, while at the same time providing equal rights and benefits to same-sex partners through a comprehensive domestic partnership system. The state may legitimately support these parallel institutions while also acknowledging their differences. Some respondents dismiss the state's interest in preserving the definition of marriage as the mere perpetuation of historical discrimination. "Certainly the fact alone that the discrimination has been sanctioned by the state for many years does not supply [a compelling] justification" for sustaining such discrimination. ( Perez v. Sharp, supra, 32 Cal.2d at p. 727.) But this argument presupposes the existence of discrimination. Viewed in its entirety, California's system of marital and domestic partnership rights is not discriminatory. (See Brown v. Merlo, supra, 8 Cal.3d at p. 862 [proper to consider other relevant laws].) The state provides equal rights and benefits to same-sex couples to the extent possible given conflicting federal law. Moreover, we have concluded the marriage laws do not trigger strict scrutiny because they do not deprive individuals of a fundamental right and do not discriminate against a suspect class. Because the Perez court reached an opposite conclusion with respect to laws banning interracial marriage, it rejected the "history" justification for these laws in the context of applying strict scrutiny. ( Perez v. Sharp, supra, 32 Cal.2d at pp. 719, 727.) Under rational basis review, we must view the Legislature's dual system of domestic partnership and marriage rights with much more deference. (See Heller v. Doe, supra, 509 U.S. at p. 319 ["rational-basis review in equal protection analysis `is not a license for courts to judge the wisdom, fairness, or logic of legislative choices'"].) The trial court minimized the state's interest in providing rights to same-sex couples through a parallel domestic partnership scheme, arguing the provision of "marriage-like rights without marriage . . . smacks of a concept long rejected by the courts: separate but equal." Likewise, the dissent maligns our reliance on the Domestic Partner Act as a return to the discredited reasoning of Plessy v. Ferguson (1896) 163 U.S. 537 [ 41 L.Ed. 256, 16 S.Ct. 1138]. (Dis. opn., post, at pp. 977-980.) In Brown v. Board of Education (1954) 347 U.S. 483, 493-495 [ 98 L.Ed. 873, 74 S.Ct. 686], the Supreme Court rejected Plessy's central justification for the Jim Crow laws, holding racially segregated public schools deprived minority children of equal protection even though the facilities provided were tangibly equal in all respects. Moreover, even before Brown was decided, our Supreme Court observed that the "separate but equal" jurisprudence justifying provision of racially segregated facilities was "clearly inapplicable to the right of an individual to marry." ( Perez v. Sharp, supra, 32 Cal.2d at p. 717.) Once again, however, the facile comparison of California's marriage statutes to racial segregation is inappropriate. Analogizing the Domestic Partner Act to a "separate but equal" facility assumes the existence of a constitutionally suspect classification. Brown and Perez addressed laws and policies designed to perpetuate racial segregation, and the courts reviewed these laws and policies with great suspicion. (Cf. Loving v. Virginia, supra, 388 U.S. at p. 11 [racial classifications are "subjected to the `most rigid scrutiny'" in equal protection analysis].) Quite the opposite of the Jim Crow laws, the Domestic Partner Act was enacted not to perpetuate discrimination but to remedy it. Unlike the racial segregation regime ratified in Plessy, the Domestic Partner Act did not strip rights away from members of the minority group; rather, the Domestic Partner Act granted same-sex couples a panoply of rights and protections they had never previously enjoyed. (See Eskridge, Equality Practice: Civil Unions and the Future of Gay Rights, supra, pp. 139-145 [disputing the analogy of civil unions to racial apartheid and arguing civil unions are more like Brown than Plessy because they advance gay rights and promote liberal principles such as respect and tolerance].) Indeed, because registered domestic partners enjoy nearly all the same rights and responsibilities as married couples, to the extent California has the power to provide them, the quarrel here is largely symbolic, albeit highly significant. Respondents and the dissent stress the importance of this symbol. (Dis. opn., post, at pp. 977-980.) Of course, we agree marriage has extraordinary symbolic significance. This is all the more reason why a court should not impose drastic changes on the institution in the absence of a clear constitutional violation. Notwithstanding any "separate but equal" rhetoric, the substantial equality afforded to same-sex relationships by the Domestic Partner Act stands in stark contrast to the gross inequality that was imposed on racial minorities under Plessy. We are not dealing with a suspect classification such as race. Therefore, under the correct legal standard (rational basis review), we must uphold the opposite-sex requirement for marriage if it is supported by any plausible reason. ( Warden v. State Bar, supra, 21 Cal.4th at p. 644.) Unlike strict scrutiny, it is permissible under rational basis review for the Legislature to apply a piecemeal approach to providing rights or attacking social ills. ( Warden v. State Bar, supra, 21 Cal.4th at p. 649; cf. McLaughlin v. Florida (1964) 379 U.S. 184, 194 [ 13 L.Ed.2d 222, 85 S.Ct. 283] [holding "legislative discretion to employ [a] piecemeal approach stops short" of justifying racial classifications].) In the context of rational basis review, "`[c]ountless constitutional precedents establish . . . that the equal protection clause does not prohibit [the state] from implementing a reform measure "one step at a time" [citation]. . . .' [Citation.]" ( Warden v. State Bar, supra, 21 Cal.4th at p. 649.) The trial court suggested the Legislature's provision of domestic partnership rights for same-sex couples is irrelevant, stating: "The issue is not whether such a system is `irrational.' . . . The issue under the rational basis test in this case is whether there is a legitimate governmental purpose for denying same-sex couples the last step in the equation: the right to marriage itself." With all due respect, what the trial court described is not a rational basis analysis. Rational basis review starts with a presumption that distinctions drawn in a statute are constitutional. ( Heller v. Doe, supra, 509 U.S. at p. 320; Warden v. State Bar, supra, 21 Cal.4th at p. 641; see also Legislature v. Eu (1991) 54 Cal.3d 492, 501 [ 286 Cal.Rptr. 283, 816 P.2d 1309] [measures passed by initiative are presumed valid and "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears"].) While we must probe the relationship between the statutory distinction and the asserted state interest ( People v. Hofsheier, supra, 37 Cal.4th at pp. 1201, 1203; Young v. Haines (1986) 41 Cal.3d 883, 900 [ 226 Cal.Rptr. 547, 718 P.2d 909]), rational basis review does not permit us to assume that a group is being "den[ied]" a "right" and demand justification for the group's inferior treatment. If "the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not," a statutory classification benefiting the first group is not discriminatory under rational basis review. ( Johnson v. Robison (1974) 415 U.S. 361, 383 [ 39 L.Ed.2d 389, 94 S.Ct. 1160] [rational basis supported classification providing educational benefit to veterans but not conscientious objectors]; see also Romer v. Evans, supra, 517 U.S. at p. 632 [under rational basis review, "a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous"].) Here, the opposite-sex requirement in the marriage statutes is rationally related to the state's interest in preserving the institution of marriage in its historical opposite-sex form, while also providing comparable rights to same-sex couples through domestic partnership laws. The same-sex requirement for couples under age 62 who register as domestic partners (Fam. Code, § 297, subd. (b)(5)) could be likewise justified by the state's interest in providing rights to committed couples through this dual system. Contrary to the trial court's assertion, the question for purposes of rational basis review is indeed whether this system is irrational. We conclude it is not. (See Lawrence v. Texas, supra, 539 U.S. at p. 585 (conc. opn. of O'Connor, J.) [stating in dicta that "preserving the traditional institution of marriage" is a legitimate state interest].) Setting aside charges of discrimination, respondents also dispute the legitimacy of the state's interest in preserving tradition. The City labels this a "`status quo' justification" and asserts, "Nothing could be more arbitrary than to uphold a law simply because it is the law and always has been." Marriage is more than a "law," of course; it is a social institution of profound significance to the citizens of this state, many of whom have expressed strong resistance to the idea of changing its historically opposite-sex nature. We cannot say the state's interest in continuing this institution in the form it has always taken, and continues to take across the country, is so unreasonable that the marriage laws must be stricken under rational basis review. Given that the state affords same-sex couples "legal recognition comparable to marriage" ( Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at p. 845) through the domestic partnership laws, the state's reliance on the history and tradition of opposite-sex marriage, and the common understanding of most citizens, does not appear to be a smokescreen hiding a discriminatory intent. B. State's Interest in Carrying Out the Will of Its Citizens Is Legitimate In addition to tradition, the Attorney General argues the marriage laws are justified by a related state interest in carrying out the expressed wishes of a majority of Californians. In 2000, voters in this state passed Proposition 22, enacting a law that provides only a marriage between a man and a woman is valid or recognized in California. (Fam. Code, § 308.5.) Regardless of whether this initiative should be interpreted to pertain to all marriages or only those entered outside California (see ante, at pp. 898-900), the citizens who voted for Proposition 22 unquestionably expressed a desire to limit recognition of same-sex partnerships as marriage in this state. Meanwhile, the citizens' elected representatives in the Legislature have found that the public policy of this state supports providing equal rights and opportunities for gay and lesbian families. (See Stats. 2003, ch. 421, § 1, subd. (b) [finding that expanding the rights and responsibilities of registered domestic partners furthers California's interest in promoting and protecting stable family relationships]; see also Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at p. 847 [public policy favoring domestic partnerships, like policy favoring marriage, "seeks to promote and protect families as well as reduce discrimination based on gender and sexual orientation"].) Thus, the Legislature has enacted sweeping domestic partnership laws to provide substantially the same rights as marriage to committed same-sex couples. By maintaining the traditional definition of marriage while simultaneously granting legal recognition and expanded rights to same-sex relationships, the Legislature has struck a careful balance to satisfy the diverse needs and desires of Californians. Of course, the mere fact that a majority wishes it so cannot save an otherwise unconstitutional law. Majoritarian whims or prejudices will never be sufficient to sustain a law that deprives individuals of a fundamental right or discriminates against a suspect class. (See Bixby v. Pierno (1971) 4 Cal.3d 130, 141 [ 93 Cal.Rptr. 234, 481 P.2d 242] [it is a solemn duty of the courts "to preserve constitutional rights, whether of individual or minority, from obliteration by the majority"].) But, in reviewing a challenged law under the rational basis test, we must give due deference to the Legislature's considered judgment. (See Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180 [ 172 Cal.Rptr. 487, 624 P.2d 1215]; Schettler v. County of Santa Clara (1977) 74 Cal.App.3d 990, 999 [ 141 Cal.Rptr. 731] ["where, as here, the findings of the Legislature have a reasonable basis, the question of what constitutes a legitimate public purpose or public policy is largely one for the Legislature which may not be second-guessed, much less disturbed by the reviewing court"].) It is the proper role of the Legislature, not the court, to fashion laws that serve competing public policies. "The legislative process involves setting priorities, making difficult decisions, making imperfect decisions and approaching problems incrementally, and rational basis analysis does not require that a legislature take the ideal or best approach [citations]." ( Hernandez v. Robles, supra, 26 A.D.3d at p. 106 [ 805 N.Y.S.2d at p. 361].) Like Justice Sosman in Massachusetts, we "fully appreciate the strength of the temptation to find [the marriage laws] unconstitutional." ( Goodridge v. Department of Public Health, supra, 798 N.E.2d at p. 982 (dis. opn. of Sosman, J.).) Gay and lesbian couples can — and do — form committed, lasting relationships that compare favorably with any traditional marriage. Many same-sex couples have also devoted themselves to raising children, and these families are equally worthy of protection. (See Sharon S. v. Superior Court, supra, 31 Cal.4th at pp. 437-440.) But, absent infringement of a constitutional right, it is not for us to say the state must allow these couples to marry. The Legislature and the voters of this state have determined that "marriage" in California is an institution reserved for opposite-sex couples, and it makes no difference whether we agree with their reasoning. We may not strike down a law simply because we think it unwise or because we believe there is a fairer way of dealing with the problem. ( Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 163 [ 211 Cal.Rptr. 368, 695 P.2d 665]; see also California Federation of Teachers v. Oxnard Elementary Sch. (1969) 272 Cal.App.2d 514, 535 [ 77 Cal.Rptr. 497] ["It is not the duty of the courts to evaluate the wisdom of specific legislation"].) Respect for the considered judgment of the Legislature and the voters is especially warranted where the issue is so controversial and divisive as is the question whether gays and lesbians should be permitted to marry their same-sex partners. "It is not the judiciary's function to reorder competing societal interests which have already been ordered by the Legislature. [Citation.]" ( University of Southern California v. Superior Court (1996) 45 Cal.App.4th 1283, 1289 [ 53 Cal.Rptr.2d 260]; cf. Goodridge v. Department of Public Health, supra, 798 N.E.2d at p. 982 (dis. opn. of Sosman, J.) [great controversy and publicity surrounding same-sex marriage issue "make it all the more imperative that we adhere precisely and scrupulously to the established guideposts of our constitutional jurisprudence," including the extreme deference accorded to legislative justifications under the rational basis test].) The trial court's decision, although purporting to apply rational basis review, essentially redefined marriage to encompass unions that have never before been considered as such in this state. Laudable as the trial court's intentions may have been, it is beyond the judiciary's realm of authority to redefine a statute or to confer a new right where none previously existed. "While courts have the authority to recognize rights supported by the Constitution, the creation of new and unique rights is more properly reserved for the people through the legislative process." ( In re Kandu, supra, 315 B.R. at p. 145.) In the final analysis, the court is not in the business of defining marriage. The Legislature has control of the subject of marriage, subject only to initiatives passed by the voters and constitutional restrictions. ( Lockyer, supra, 33 Cal.4th at p. 1074; Estate of DePasse, supra, 97 Cal.App.4th at p. 99.) If marriage is to be extended to same-sex couples, this change must come from the people — either directly, through a voter initiative, or through their elected representatives in the Legislature. Having concluded the interests articulated by the state are legitimate and are advanced by the statutory limitation of marriage to opposite-sex couples, we need not consider the legitimacy of additional interests posited by other appellants and amici curiae.

For the reasons discussed herein, the judgments in CCSF, Woo, Tyler and Clinton are reversed. The judgments against CCF and the Fund in Thomasson (denoted Campaign for California Families v. Newsom on appeal) and Proposition 22 are affirmed on the ground that the cases do not present justiciable controversies. All parties shall bear their own costs on appeal. Parrilli, J., concurred.