OPINION OF THE COURT

R.S. Smith, J.

We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.

Facts and Procedural History

Plaintiffs and petitioners (hereafter plaintiffs) are the members of 44 same-sex couples. Each couple tried unsuccessfully to obtain a marriage license. Plaintiffs then began these four lawsuits, seeking declaratory judgments that the restriction of marriage to opposite-sex couples is invalid under the State Constitution. Defendants and respondents (hereafter defendants) are the license-issuing authorities of New York City, Albany and Ithaca; the State Department of Health, which *357instructs local authorities about the issuance of marriage licenses; and the State itself. In Hernandez v Robles, Supreme Court granted summary judgment in plaintiffs’ favor; the Appellate Division reversed. In Samuels v New York State Department of Health, Matter of Kane v Marsolais and Seymour v Holcomb, Supreme Court granted summary judgment in defendants’ favor, and the Appellate Division affirmed. We now affirm the orders of the Appellate Division.

Discussion

I

All the parties to these cases now acknowledge, implicitly or explicitly, that the Domestic Relations Law limits marriage to opposite-sex couples. Some amici, however, suggest that the statute can be read to permit same-sex marriage, thus mooting the constitutional issues. We find this suggestion untenable.

Articles 2 and 3 of the Domestic Relations Law, which govern marriage, nowhere say in so many words that only people of different sexes may marry each other, but that was the universal understanding when articles 2 and 3 were adopted in 1909, an understanding reflected in several statutes. Domestic Relations Law § 12 provides that “the parties must solemnly declare . . . that they take each other as husband and wife.” Domestic Relations Law § 15 (1) (a) requires town and city clerks to obtain specified information from “the groom” and “the bride.” Domestic Relations Law § 5 prohibits certain marriages as incestuous, specifying opposite-sex combinations (brother and sister, uncle and niece, aunt and nephew), but not same-sex combinations. Domestic Relations Law § 50 says that the property of “a married woman . . . shall not be subject to her husband’s control.”

New York’s statutory law clearly limits marriage to opposite-sex couples. The more serious question is whether that limitation is consistent with the New York Constitution.

II

New York is one of many states in which supporters of same-sex marriage have asserted it as a state constitutional right. Several other state courts have decided such cases, under various state constitutional provisions and with divergent results (e.g., Goodridge v Department of Pub. Health, 440 Mass 309, 798 NE2d 941 [2003] [excluding same-sex couples from mar*358riage violates Massachusetts Constitution]; Standhardt v Superior Ct. ex rel. County of Maricopa, 206 Ariz 276, 77 P3d 451 [Ct App 2004] [constitutional right to marry under Arizona Constitution does not encompass marriage to same-sex partner]; Morrison v Sadler, 821 NE2d 15 [Ind 2005] [Indiana Constitution does not require judicial recognition of same-sex marriage]; Lewis v Harris, 378 NJ Super 168, 875 A2d 259 [2005] [limitation of marriage to members of opposite sex does not violate New Jersey Constitution]; Baehr v Lewin, 74 Haw 530, 852 P2d 44 [1993] [refusal of marriage licenses to couples of the same sex subject to strict scrutiny under Hawaii Constitution]; Baker v State, 170 Vt 194, 744 A2d 864 [1999] [denial to same-sex couples of benefits and protections afforded to married people violates Vermont Constitution]). Here, plaintiffs claim that, by limiting marriage to opposite-sex couples, the New York Domestic Relations Law violates two provisions of the State Constitution: the Due Process Clause (art I, § 6 [“No person shall be deprived of life, liberty or property without due process of law”]) and the Equal Protection Clause (art I, § 11 [“No person shall be denied the equal protection of the laws of this state or any subdivision thereof’]).

We approach plaintiffs’ claims by first considering, in section III below, whether the challenged limitation can be defended as a rational legislative decision. The answer to this question, as we show in section IV below, is critical at every stage of the due process and equal protection analysis.

Ill

It is undisputed that the benefits of marriage are many. The diligence of counsel has identified 316 such benefits in New York law, of which it is enough to summarize some of the most important: Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions. Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State.

The critical question is whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples. The question is not, we emphasize, whether the Legislature must or should continue to limit marriage in this way; of course the Legislature *359may (subject to the effect of the federal Defense of Marriage Act [Pub L 104-199, 110 US Stat 2419]) extend marriage or some or all of its benefits to same-sex couples. We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule — some children who never know their fathers, or their *360mothers, do far better than some who grow up with parents of both sexes — but the Legislature could find that the general rule will usually hold.

Plaintiffs, and amici supporting them, argue that the proposition asserted is simply untrue: that a home with two parents of different sexes has no advantage, from the point of view of raising children, over a home with two parents of the same sex. Perhaps they are right, but the Legislature could rationally think otherwise.

To support their argument, plaintiffs and amici supporting them refer to social science literature reporting studies of same-sex parents and their children. Some opponents of same-sex marriage criticize these studies, but we need not consider the criticism, for the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.

Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the commonsense premise that children will do best with a mother and father in the home. (See Goodridge, 440 Mass at 358-359, 798 NE2d at 979-980 [Sosman, J., dissenting].) And a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households.

In sum, there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. This is the question on which these cases turn. If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice — if we agreed with plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on inter*361racial marriage that was plainly “designed to maintain White Supremacy” (id. at 11) — we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving.

But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950’s and 1960’s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began.

It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind.

The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

IV

Our conclusion that there is a rational basis for limiting marriage to opposite-sex couples leads us to hold that that limitation is valid under the New York Due Process and Equal Protection clauses, and that any expansion of the traditional definition of marriage should come from the Legislature.

This Court is the final authority as to the meaning of the New York Constitution. This does not mean, of course, that we ignore the United States Supreme Court’s interpretations of similarly worded clauses of the Federal Constitution. The governing principle is that our Constitution cannot afford less protection to our citizens than the Federal Constitution does, but it can give more (People v P.J. Video, 68 NY2d 296, 302 *362[1986]). We have at times found our Due Process Clause to be more protective of rights than its federal counterpart, usually in cases involving the rights of criminal defendants (e.g., People v LaValle, 3 NY3d 88 [2004]) or prisoners (e.g., Cooper v Morin, 49 NY2d 69 [1979]). In general, we have used the same analytical framework as the Supreme Court in considering due process cases, though our analysis may lead to different results. By contrast, we have held that our Equal Protection Clause “is no broader in coverage than the Federal provision” (Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 360 n 6 [1985]).

We find no inconsistency that is significant in this case between our due process and equal protection decisions and the Supreme Court’s. No precedent answers for us the question we face today; we reject defendants’ argument that the Supreme Court’s ruling without opinion in Baker v Nelson (409 US 810 [1972]) bars us from considering plaintiffs’ equal protection claims. But both New York and federal decisions guide us in applying the Due Process and Equal Protection clauses.

A. Due Process

In deciding the validity of legislation under the Due Process Clause, courts first inquire whether the legislation restricts the exercise of a fundamental right, one that is “deeply rooted in this Nation’s history and tradition” (Washington v Glucksberg, 521 US 702, 721 [1997], quoting Moore v East Cleveland, 431 US 494, 503 [1977] [plurality op]; Hope v Perales, 83 NY2d 563, 575 [1994]). In this case, whether the right in question is “fundamental” depends on how it is defined. The right to marry is unquestionably a fundamental right (Loving, 388 US at 12; Zablocki v Redhail, 434 US 374, 384 [1978]; Cooper, 49 NY2d at 79). The right to marry someone of the same sex, however, is not “deeply rooted”; it has not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.

Recent Supreme Court decisions show that the definition of a fundamental right for due process purposes may be either too narrow or too broad. In Lawrence v Texas (539 US 558, 566 [2003]), the Supreme Court criticized its own prior decision in Bowers v Hardwick (478 US 186, 190 [1986]) for defining the right at issue as the right of “homosexuals to engage in sodomy.” The Lawrence court plainly thought the right should *363have been defined more broadly, as a right to privacy in intimate relationships. On the other hand, in Washington v Glucksberg (521 US at 722, 723), the Court criticized a lower federal court for defining the right at issue too broadly as a “right to die”; the right at issue in Glucksberg, the Court said, was really the “right to commit suicide” and to have assistance in doing so.

The difference between Lawrence and Glucksberg is that in Glucksberg the relatively narrow definition of the right at issue was based on rational line-drawing. In Lawrence, by contrast, the court found the distinction between homosexual sodomy and intimate relations generally to be essentially arbitrary. Here, there are, as we have explained, rational grounds for limiting the definition of marriage to opposite-sex couples. This case is therefore, in the relevant way, like Glucksberg and not at all like Lawrence. Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against state intrusion on intimate, private activity. They seek from the courts access to a state-conferred benefit that the Legislature has rationally limited to opposite-sex couples. We conclude that, by defining marriage as it has, the New York Legislature has not restricted the exercise of a fundamental right (see also concurring op of Judge Graffeo at 368-374).

Where no fundamental right is at issue, legislation is valid under the Due Process Clause if it is rationally related to legitimate government interests (Glucksberg, 521 US at 728; Hope, 83 NY2d at 577). Again, our earlier discussion answers this question. Protecting the welfare of children is a legitimate governmental interest, and we have shown above that there is a rational relationship between that interest and the limitation of marriage to opposite-sex couples. That limitation therefore does not deprive plaintiffs of due process of law.

B. Equal Protection

Plaintiffs claim that the distinction made by the Domestic Relations Law between opposite-sex and same-sex couples deprives them of the equal protection of the laws. This claim raises, first, the issue of what level of scrutiny should be applied to the legislative classification. The plaintiffs argue for strict scrutiny, on the ground that the legislation affects their fundamental right to marry (see Alevy v Downstate Med. Ctr. of State of N.Y., 39 NY2d 326, 332 [1976]) — a contention we rejected above. Alternatively, plaintiffs argue for so-called intermediate or heightened scrutiny on two grounds. They say that the legisla*364tion discriminates on the basis of sex, a kind of discrimination that has been held to trigger heightened scrutiny (e.g., United States v Virginia, 518 US 515, 532-533 [1996]). They also say that discrimination on the basis of sexual preference should trigger heightened scrutiny, a possibility we left open in Under 21, Catholic Home Bur. for Dependent Children v City of New York (65 NY2d at 364). We reject both of these arguments, and hold that the restriction of marriage to opposite-sex couples is subject only to rational basis scrutiny.

By limiting marriage to opposite-sex couples, New York is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and men are treated alike — they are permitted to marry people of the opposite sex, but not people of their own sex. This is not the kind of sham equality that the Supreme Court confronted in Loving; the statute there, prohibiting black and white people from marrying each other, was in substance anti-black legislation. Plaintiffs do not argue here that the legislation they challenge is designed to subordinate either men to women or women to men as a class.

However, the legislation does confer advantages on the basis of sexual preference. Those who prefer relationships with people of the opposite sex and those who prefer relationships with people of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage. This case thus presents the question of what level of scrutiny is to be applied to legislation that classifies people on this basis. We held in Under 21 that “classifications based on sexual orientation” would not be subject to strict scrutiny, but left open the question of “whether some level of ‘heightened scrutiny’ would be applied” in such cases (id. at 364).

We resolve this question in this case on the basis of the Supreme Court’s observation that no more than rational basis scrutiny is generally appropriate “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement” (Cleburne v Cleburne Living Center, Inc., 473 US 432, 441 [1985]). Perhaps that principle would lead us to apply heightened scrutiny to sexual preference discrimination in some cases, but not where we review legislation governing marriage and family relationships. A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the *365State’s interest in fostering relationships that will serve children best. In this area, therefore, we conclude that rational basis scrutiny is appropriate.

Where rational basis scrutiny applies, “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest” (id. at 440). Plaintiffs argue that a classification distinguishing between opposite-sex couples and same-sex couples cannot pass rational basis scrutiny, because if the relevant state interest is the protection of children, the category of those permitted to marry — opposite-sex couples — is both underinclusive and overinclusive. We disagree.

Plaintiffs argue that the category is underinclusive because, as we recognized above, same-sex couples, as well as opposite-sex couples, may have children. That is indeed a reason why the Legislature might rationally choose to extend marriage or its benefits to same-sex couples; but it could also, for the reasons we have explained, rationally make another choice, based on the different characteristics of opposite-sex and same-sex relationships. Our earlier discussion demonstrates that the definition of marriage to include only opposite-sex couples is not irrationally underinclusive.

In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, fimiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.

Rational basis scrutiny is highly indulgent towards the State’s classifications (see Heller v Doe, 509 US 312, 320-321 [1993]). Indeed, it is “a paradigm of judicial restraint” (Affronti v Crosson, 95 NY2d 713, 719 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001]). We conclude that permitting marriage by all opposite-sex couples does not create an irrationally overnarrow or overbroad classification. The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection Clause.

*366V

We hold, in sum, that the Domestic Relations Law’s limitation of marriage to opposite-sex couples is not unconstitutional. We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong. We have presented some (though not all) of the arguments against same-sex marriage because our duty to defer to the Legislature requires us to do so. We do not imply that there are no persuasive arguments on the other side — and we know, of course, that there are very powerful emotions on both sides of the question.

The dissenters assert confidently that “future generations” will agree with their view of this case (dissenting op at 396). We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result — as many undoubtedly will be — will respect it as people in a democratic state should respect choices democratically made.

Accordingly, the orders of the Appellate Division in each case should be affirmed without costs.

Graffeo, J.

(concurring). We are asked by the 44 same-sex couples who commenced these four cases to declare that the denial of marriage licenses to same-sex couples violates the Due Process and Equal Protection clauses of the New York Constitution. Plaintiffs and petitioners (collectively referred to as plaintiffs) are representative of many homosexual couples living in committed relationships in our state, some of whom are raising children. They seek the societal recognition and legal and financial benefits accorded by the State to legally married couples. Respondents are the State of New York, the State Department of Health and local officials from the cities of New York, Albany and Ithaca who are involved either in overseeing the New York marriage licensing process or issuing marriage licenses.

Plaintiffs assert that the restriction of marriage to opposite-sex couples impedes the fundamental right to marry and amounts to gender or sexual orientation discrimination that does not withstand any level of constitutional analysis, whether *367strict scrutiny, intermediate scrutiny or rational basis review. Because the determination of the proper level of constitutional review is crucial to the judicial resolution of the issues in this case, I write separately to elaborate on the standard of review that should be applied under the precedent of this Court and the United States Supreme Court. I conclude that rational basis analysis is appropriate and, applying this standard, I concur in the result reached by the plurality that an affirmance is warranted in each of these cases.

This Court has long recognized that “[fjrom time immemorial the State has exercised the fullest control over the marriage relation,” going so far as to observe that “[tihere are, in effect, three parties to every marriage, the man, the woman and the State” (Fearon v Treanor, 272 NY 268, 272 [1936], appeal dismissed 301 US 667 [1937]). The historical conception of marriage as a union between a man and a woman is reflected in the civil institution of marriage adopted by the New York Legislature. The cases before us present no occasion for this Court to debate whether the State Legislature should, as a matter of social welfare or sound public policy, extend marriage to same-sex couples. Our role is limited to assessing whether the current statutory scheme offends the Due Process or Equal Protection clauses of the New York Constitution. Because it does not, we must affirm. Absent a constitutional violation, we may not disturb duly enacted statutes to, in effect, substitute another policy preference for that of the Legislature.

The Statutory Scheme:

As a preliminary matter, although plaintiffs have abandoned the argument (raised in Supreme Court in both Kane and Seymour) that the Domestic Relations Law already authorizes same-sex marriage because it does not explicitly define marriage as a union between one man and one woman, several amici continue to suggest that this Court can avoid a constitutional analysis by simply interpreting the statutory scheme to allow same-sex marriage. Our role when construing a statute is to ascertain and implement the will of the Legislature unless we are prevented from doing so by constitutional infirmity. It would be inappropriate for us to interpret the Domestic Relations Law in a manner that virtually all concede would not comport with legislative intent.

There is no basis to conclude that, when the Legislature adopted the Domestic Relations Law more than a century ago, it contemplated the possibility of same-sex marriage, *368much less intended to authorize it. In fact, the Domestic Relations Law contains many references to married persons that demonstrate that the Legislature viewed marriage as a union between one woman and one man — as seen by references to the parties to a marriage as the “bride” and “groom” (Domestic Relations Law § 15 [1] [a]) and “wife” and “husband” (Domestic Relations Law §§ 6, 12, 221, 248; see also CPLR 4502 [b]). Notably, high courts of other states with statutory schemes comparable to New York’s have interpreted the pertinent statutes as not authorizing same-sex marriage (see Goodridge v Department of Pub. Health, 440 Mass 309, 798 NE2d 941 [2003]; Baker v Nelson, 291 Minn 310, 191 NW2d 185 [1971], appeal dismissed 409 US 810 [1972]). And several of our prior cases alluded to the fact that the Domestic Relations Law precludes same-sex couples from marrying (Levin v Yeshiva Univ., 96 NY2d 484, 494 [2001]; Braschi v Stahl Assoc. Co., 74 NY2d 201, 210 [1989]). Because the Domestic Relations Law does not authorize marriage between persons of the same sex, this Court must address plaintiffs’ constitutional challenges to the validity of the marriage scheme, which are at the heart of this litigation.

Due Process:

Plaintiffs argue that the Domestic Relations Law violates article I, § 6 of the New York Constitution, which provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” Their substantive due process challenge is predicated on the assertion that the New York Constitution precludes the State from defining marriage as a union between one man and one woman because the right to privacy derived therein grants each individual the unqualified right to select and marry the person of his or her choice. If the Due Process Clause encompasses this right, and if it is one of the bundle of rights deemed “fundamental” as plaintiffs contend, the Domestic Relations Law would be subjected to the most demanding form of constitutional review, with the State having the burden to prove that it is narrowly tailored to serve compelling state interests.

But it is an inescapable fact that New York due process cases and the relevant federal case law cited therein do not support plaintiffs’ argument. While many US Supreme Court decisions recognize marriage as a fundamental right protected under the Due Process Clause, all of these cases understood the marriage *369right as involving a union of one woman and one man (see e.g. Turner v Safley, 482 US 78 [1987]; Zablocki v Redhail, 434 US 374 [1978]; Griswold v Connecticut, 381 US 479 [1965]; Skinner v Oklahoma ex rel. Williamson, 316 US 535 [1942]). Whether interpreting New York’s Due Process Clause or its federal counterpart (which is textually identical), when this Court has addressed the fundamental right to marry, it has relied on federal precedent and similarly used the word “marriage” in its traditional sense. For example, in Cooper v Morin, we grounded the right of pretrial detainees to have contact visits with family on the “fundamental right to marriage and family life . . . and to bear and rear children” (49 NY2d 69, 80 [1979], cert denied sub nom. Lombard v Cooper, 446 US 984 [1980]), citing US Supreme Court cases highlighting the link between marriage and procreation. As the Third Department aptly noted in Samuels, to ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the US Supreme Court and this Court to recognize marriage as a fundamental right in the first place.

Nor has this Court recognized a due process right to privacy distinct from that articulated by the US Supreme Court. Although our Court has interpreted the New York Due Process Clause more broadly than its federal counterpart on a few occasions, all of those cases involved the rights of criminal defendants, prisoners or pretrial detainees, or other confined individuals and implicated classic liberty concerns beyond the right to privacy. Most recently, in People v LaValle (3 NY3d 88 [2004]), the Court concluded that the anticipatory deadlock charge in the Death Penalty Act violated New York’s Due Process Clause, even though it may have been upheld under the United States Constitution. Likewise, in Cooper (49 NY2d 69 [1979]), we held that the New York Due Process Clause protected the right of pretrial detainees in a county jail to have nonconjugal contact visits with family members, even though no such right had been deemed protected under the federal Due Process Clause. Even then, our analysis did not turn on recognition of broader family privacy rights than those articulated by the Supreme Court. Rather, the analysis focused on rejection of the rational basis test that the Supreme Court then applied to *370assess jail regulations,1 with this Court instead adopting a test that “balanc[ed] . . . the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement” (id. at 79).

Most of our Due Process Clause decisions in the right to privacy realm have cited federal authority interchangeably with New York precedent, making no distinction between New York’s constitutional provision and the federal Due Process Clause (see e.g. Hope v Perales, 83 NY2d 563, 575 [1994]; Matter of Raquel Marie X., 76 NY2d 387 [1990], cert denied sub nom. Robert C. v Miguel T., 498 US 984 [1990]; Matter of Doe v Coughlin, 71 NY2d 48 [1987], cert denied 488 US 879 [1988]; Rivers v Katz, 67 NY2d 485 [1986]). Our Court has not recognized a fundamental right to marry that departs in any respect from the right defined by the US Supreme Court in cases like Skinner which acknowledged that marriage is “fundamental to the very existence and survival of the [human] race” because it is the primary institution supporting procreation and child-rearing (316 US at 541; see also Zablocki, 434 US 374; Griswold, 381 US 479). The binary nature of marriage — its inclusion of one woman and one man — reflects the biological fact that human procreation cannot be accomplished without the genetic contribution of both a male and a female. Marriage creates a supportive environment for procreation to occur and the resulting offspring to be nurtured. Although plaintiffs suggest that the connection between procreation and marriage has become anachronistic because of scientific advances in assisted reproduction technology, the fact remains that the vast majority of children are conceived naturally through sexual contact between a woman and a man.

Plaintiffs’ reliance on Loving v Virginia (388 US 1 [1967]) for the proposition that the US Supreme Court has established a fundamental “right to marry the spouse of one’s choice” outside the male/female construct is misplaced. In Loving, an interracial couple argued that Virginia’s antimiscegenation statute, which precluded “any white person in this State to marry any save a white person, or a person with no other admixture of *371blood than white and American Indian” (id. at 5 n 4), violated the federal Due Process and Equal Protection clauses. The statute made intermarriage in violation of its terms a felony carrying a potential jail sentence of one to five years. The Lovings — a white man and a black woman — had married in violation of the law and been convicted, prompting them to challenge the validity of the Virginia law.

The Supreme Court struck the statute on both equal protection and due process grounds, but the focus of the analysis was on the Equal Protection Clause. Noting that “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States,” the Court applied strict scrutiny review to the racial classification, finding “no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification” (id. at 10, 11). It made clear “that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause” (id. at 12). There is no question that the Court viewed this antimiscegenation statute as an affront to the very purpose for the adoption of the Fourteenth Amendment — to combat invidious racial discrimination.

In its brief due process analysis, the Supreme Court reiterated that marriage is a right “fundamental to our very existence and survival” (id., citing Skinner, 316 US at 541) — a clear reference to the link between marriage and procreation. It reasoned: “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes ... is surely to deprive all the State’s citizens of liberty without due process of law” (id.). Although the Court characterized the right to marry as a “choice,” it did not articulate the broad “right to marry the spouse of one’s choice” suggested by plaintiffs here. Rather, the Court observed that “[t]he Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations” (id. [emphasis added]).2 Needless to say, a statutory scheme that burdens a fundamental right by making conduct criminal based on the race of the individual who engages in it is inimical to the *372values embodied in the state and federal Due Process clauses. Far from recognizing a right to marry extending beyond the one woman and one man union,3 it is evident from the Loving decision that the Supreme Court viewed marriage as fundamental precisely because of its relationship to human procreation.4

Nor does the Supreme Court’s recent federal due process analysis in Lawrence v Texas (539 US 558 [2003]) support defining the fundamental marriage right in the manner urged by *373plaintiffs. In Lawrence, the Court overruled its prior decision in Bowers v Hardwick (478 US 186 [1986]) and struck as unconstitutional a Texas statute that criminalized consensual sodomy between adult individuals of the same sex. The holding in Lawrence is consistent with our Court’s decision in People v Onofre (51 NY2d 476 [1980], cert denied 451 US 987 [1981]), which invalidated under a federal due process analysis a New York Penal Law provision that criminalized consensual sodomy between nonmarried persons.

In Lawrence the Supreme Court did not create any new fundamental rights, nor did it employ a strict scrutiny analysis. It acknowledged that laws that criminalize sexual conduct between homosexuals

“have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals” (539 US at 567).

Criticizing the historical analysis in Bowers, it noted that, even though sodomy as well as other nonprocreative sexual activity had been proscribed, criminal statutes “directed at homosexual conduct as a distinct matter” {id. at 568) were of recent vintage, having developed in the last third of the 20th century, and therefore did not possess “ancient roots” (id. at 570).

Consistent with our analysis in Onofre, the Lawrence court held “that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons” (id. at 567) because “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (id. at 572). It reasoned that “moral disapproval” — the only justification Texas proffered for its law — is never an adequate basis for a criminal statute, a conclusion similar to this Court’s observation in Onofre that “it is not the function of the Penal Law in our governmental policy to provide either a medium for the articulation or the apparatus for the intended enforcement of moral or theological values” (51 NY2d at 488 n 3). Thus, in striking the sodomy law, the Supreme Court found that “[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” (Lawrence, 539 US at 578).

*374The right affirmed by the Supreme Court in Lawrence is not comparable to the new right to marry plaintiffs assert here, nor is the Texas statute criminalizing homosexual sodomy analogous to the marriage statutes under review. The Domestic Relations Law is not a penal provision and New York has not attempted to regulate plaintiffs’ private sexual conduct or disturb the sanctity of their homes. And, in contrast to the Texas statute, New York’s marriage laws are part of a longstanding tradition with roots dating back long before the adoption of our State Constitution.

New York’s Due Process Clause simply does not encompass a fundamental right to marry the spouse of one’s choice outside the one woman/one man construct. Strict scrutiny review of the Domestic Relations Law is therefore not warranted and, insofar as due process analysis is concerned, the statutory scheme must be upheld unless plaintiffs prove that it is not rationally related to any legitimate state interest.

Equal Protection:

Plaintiffs contend that, even if strict scrutiny analysis is not appropriate under the Due Process Clause, a heightened standard of review is nonetheless mandated under the Equal Protection Clause because New York’s marriage laws create gender and sexual orientation classifications that require a more rigorous level of analysis than rational basis review.

The Equal Protection Clause, added to the New York Constitution in 1938, provides:

“No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state” (NY Const, art I, § 11).

Soon after the adoption of this provision, this Court recognized that it was modeled after its federal counterpart and “embodies” the federal equal protection command (Dorsey v Stuyvesant Town Corp., 299 NY 512, 530 [1949], cert denied 339 US 981 [1950]; see also, Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 360 n 6 [1985] [“the State constitutional equal protection clause ... is no broader in coverage than the Federal provision”]). Accordingly, this Court has consistently cited federal cases and applied federal *375analysis to resolve equal protection claims brought under the federal and state constitutions (see e.g. Matter of Aliessa v Novello, 96 NY2d 418 [2001]; People v Liberta, 64 NY2d 152 [1984], cert denied 471 US 1020 [1985]).

The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike” (Cleburne v Cleburne Living Center, Inc., 473 US 432, 439 [1985]). Both the US Supreme Court and this Court have applied three levels of review to legislative classifications. “[W]hen a statute classifies by race, alienage, or national origin” (id. at 440), or when it burdens a fundamental right protected under the Due Process Clause, it is subjected to strict scrutiny meaning that it will be sustained only if it is narrowly tailored to serve a compelling state interest (see Golden v Clark, 76 NY2d 618, 623 [1990]). Classifications based on gender or illegitimacy are reviewed under an intermediate level of scrutiny — meaning they will be sustained if “substantially related to the achievement of an important governmental objective” (Liberta, 64 NY2d at 168; Clark v Jeter, 486 US 456 [1988]). Neither the Supreme Court nor this Court has recognized any other classifications as triggering heightened scrutiny and, therefore, all other statutory distinctions have been sustained if rationally related to a legitimate government interest (see e.g. Golden, 76 NY2d 618).

Plaintiffs argue that the Domestic Relations Law creates a classification based on gender that requires intermediate scrutiny because a woman cannot marry another woman due to her gender and a man cannot marry another man due to his gender. Respondents counter that the marriage laws are neutral insofar as gender is concerned because they treat all males and females equally — neither gender can marry a person of the same sex and both can marry persons of the opposite sex.

Respondents’ interpretation more closely comports with the analytical framework for gender discrimination applied by this Court and the Supreme Court. The precedent establishes that gender discrimination occurs when men and women are not treated equally and one gender is benefitted or burdened as opposed to the other. For example, in Liberta (64 NY2d 152), we held that the Penal Law’s restriction of the crime of forcible rape to male offenders constituted gender discrimination and the restriction was struck on the basis that it failed to meet the intermediate scrutiny standard. Men and women were not treated equally because only men could be convicted of forcible rape; women who engaged in precisely the same conduct could *376not be charged or convicted of the same offense. Similarly, in Mississippi Univ. for Women v Hogan (458 US 718 [1982]), the Supreme Court found that a publically-funded state university that refused to allow men admission to its nursing program had engaged in gender discrimination. The university improperly privileged female students by allowing them a benefit not available to similarly-situated male applicants. Likewise, in J. E. B. v Alabama ex rel. T. B. (511 US 127 [1994]), a prosecutor was determined to have engaged in gender discrimination when he exercised 9 of his 10 peremptory challenges to strike males from the venire panel resulting in an all-female jury. There, the prosecutor did not apply jury selection criteria equally among males and females — he used almost all of his challenges to exclude men from the jury.

Plaintiffs cite Loving for the proposition that a statute can discriminate even if it treats both classes identically. This misconstrues the Loving analysis because the antimiscegenation statute did not treat blacks and whites identically — it restricted who whites could marry (but did not restrict intermarriage between non-whites) for the purpose of promoting white supremacy. Virginia’s antimiscegenation statute was the quintessential example of invidious racial discrimination as it was intended to advantage one race and disadvantage all others, which is why the Supreme Court applied strict scrutiny and struck it down as violating the core interest of the Equal Protection Clause.

In contrast, neither men nor women are disproportionately disadvantaged or burdened by the fact that New York’s Domestic Relations Law allows only opposite-sex couples to marry— both genders are treated precisely the same way. As such, there is no gender classification triggering intermediate scrutiny.

Nor does the statutory scheme create a classification based on sexual orientation. In this respect, the Domestic Relations Law is facially neutral: individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual. Regardless of sexual orientation, any person can marry a person of the opposite sex. Certainly, the marriage laws create a classification that distinguishes between opposite-sex and same-sex couples and this has a disparate impact on gays and lesbians. However, a claim that a facially-neutral statute enacted without an invidious discriminatory intent has a disparate impact on a class (even a suspect class, such as one defined by race) is insufficient *377to establish an equal protection violation5 (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 321 [1995]; People v New York City Tr. Auth., 59 NY2d 343, 350 [1983]; Washington v Davis, 426 US 229, 240 [1976]). Plaintiffs concede that the Domestic Relations Law was not enacted with an invidiously discriminatory intent — the Legislature did not craft the marriage laws for the purpose of disadvantaging gays and lesbians (cf. Romer v Evans, 517 US 620 [1996]). Hence, there is no basis to address plaintiffs’ argument that classifications based on sexual orientation should be subjected to intermediate scrutiny.

Rational Basis Review:

Thus, under both the Due Process and Equal Protection clauses, these cases turn on whether the Legislature’s decision to confine the institution of marriage to couples composed of one woman and one man is rationally related to any legitimate state interest. In Affronti v Crosson (95 NY2d 713, 719 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001]), we explained that

“[t]he rational basis standard of review is a paradigm of judicial restraint. On rational basis review, a statute will be upheld unless the disparate treatment is so unrelated to the achievement of any combination of legitimate purposes that it is irrational. Since the challenged statute is presumed to be valid, the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it . . . whether or not the basis has a foundation in the record. Thus, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” (Internal quotation marks, citations, brackets and emphasis omitted.)

Especially in the realm of social or economic legislation, “the Equal Protection Clause allows the States wide latitude . . . and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes” *378(Cleburne, 473 US at 440; see generally Lovelace v Gross, 80 NY2d 419, 427 [1992]).

In these cases, respondents articulate a number of interests that they claim are legitimate and are advanced by the current definition of marriage. Given the extremely deferential standard of review, plaintiffs cannot prevail unless they establish that no conceivable legitimate interest is served by the statutory scheme. This means that if this Court finds a rational connection between the classification and any single governmental concern, the marriage laws survive review under both the Due Process and Equal Protection clauses.

As set forth in the plurality opinion, plaintiffs have failed to negate respondents’ explanation that the current definition of marriage is rationally related to the State’s legitimate interest in channeling opposite-sex relationships into marriage because of the natural propensity of sexual contact between opposite-sex couples to result in pregnancy and childbirth. Of course, marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing, such as companionship and emotional fulfilment. But here we are concerned with the State’s interest in promoting the institution of marriage.

As Justice Robert Cordy pointed out in his dissent in Goodridge v Department of Pub. Health (440 Mass at 381-382, 798 NE2d at 995 [Cordy, J., dissenting]):

“Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of human society. . . . Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. . . . [A]n orderly society requires some mechanism for coping with the fact that sexual intercourse [between a man and a woman] commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.”

Since marriage was instituted to address the fact that sexual contact between a man and a woman naturally can result in *379pregnancy and childbirth, the Legislature’s decision to focus on opposite-sex couples is understandable. It is not irrational for the Legislature to provide an incentive for opposite-sex couples — for whom children may be conceived from casual, even momentary intimate relationships — to marry, create a family environment, and support their children. Although many same-sex couples share these family objectives and are competently raising children in a stable environment, they are simply not similarly situated to opposite-sex couples in this regard given the intrinsic differences in the assisted reproduction or adoption processes that most homosexual couples rely on to have children.

As respondents concede, the marriage classification is imperfect and could be viewed in some respects as overinclusive or underinclusive since not all opposite-sex couples procreate, opposite-sex couples who cannot procreate may marry, and opposite-sex partners can and do procreate outside of marriage. It is also true that children being raised in same-sex households would derive economic and social benefits if their parents could marry. But under rational basis review, the classification need not be perfectly precise or narrowly tailored — all that is required is a reasonable connection between the classification and the interest at issue. In light of the history and purpose of the institution of marriage, the marriage classification in the Domestic Relations Law meets that test.

The Legislature has granted the benefits (and responsibilities) of marriage to the class — opposite-sex couples — that it concluded most required the privileges and burdens the institution entails due to inherent procreative capabilities. This type of determination is a central legislative function and lawmakers are afforded leeway in fulfilling this function, especially with respect to economic and social legislation where issues are often addressed incrementally (see FCC v Beach Communications, Inc., 508 US 307, 315-316 [1993]). It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate. Because the New York Constitution does not compel such a revision of the Domestic Relations Law, the decision whether or not to do so rests with our elected representatives.

*380Chief Judge Kaye

(dissenting). Plaintiffs (including petitioners) are 44 same-sex couples who wish to marry. They include a doctor, a police officer, a public school teacher, a nurse, an artist and a state legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children — from toddlers to teenagers. Many are active in their communities, serving on their local school board, for example, or their cooperative apartment building board. In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.

For most of us, leading a full life includes establishing a family. Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives. They, like plaintiffs, grew up hoping to find that one person with whom they would share their future, eager to express their mutual lifetime pledge through civil marriage. Solely because of their sexual orientation, however — that is, because of who they love — plaintiffs are denied the rights and responsibilities of civil marriage. This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.

I. Due Process

Under both the state and federal constitutions, the right to due process of law protects certain fundamental liberty interests, including the right to marry. Central to the right to marry is the right to marry the person of one’s choice (see e.g. Crosby v State of N.Y., Workers’ Compensation Bd., 57 NY2d 305, 312 [1982] [“clearly falling within (the right of privacy) are matters relating to the decision of whom one will marry”]; People v Shepard, 50 NY2d 640, 644 [1980] [“the government has been prevented from interfering with an individual’s decision about whom to marry”]). The deprivation of a fundamental right is subject to strict scrutiny and requires that the infringement be narrowly tailored to achieve a compelling state interest (see e.g. Carey v Population Services Int’l, 431 US 678, 686 [1977]).

Fundamental rights are those “which are, objectively, deeply rooted in this Nation’s history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed” (Washington v *381Glucksberg, 521 US 702, 720-721 [1997] [internal quotation marks and citations omitted]). Again and again, the Supreme Court and this Court have made clear that the right to marry is fundamental (see e.g. Loving v Virginia, 388 US 1 [1967]; Zablocki v Redhail, 434 US 374 [1978]; Turner v Safley, 482 US 78 [1987]; Matter of Doe v Coughlin, 71 NY2d 48, 52 [1987]; Cooper v Morin, 49 NY2d 69, 80 [1979]; Levin v Yeshiva Univ., 96 NY2d 484, 500 [2001] [G.B. Smith, J., concurring] [“marriage is a fundamental constitutional right”]).

The Court concludes, however, that same-sex marriage is not deeply rooted in tradition, and thus cannot implicate any fundamental liberty. But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a “new” right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake. In Lawrence v Texas (539 US 558 [2003]), the Supreme Court warned against such error.

Lawrence overruled Bowers v Hardwick (478 US 186 [1986]), which had upheld a Georgia statute criminalizing sodomy. In so doing, the Lawrence court criticized Bowers for framing the issue presented too narrowly. Declaring that “Bowers was not correct when it was decided, and it is not correct today” (539 US at 578), Lawrence explained that Bowers purported to analyze — erroneously—whether the Constitution conferred a “fundamental right upon homosexuals to engage in sodomy” (539 US at 566 [citation omitted]). This was, however, the wrong question. The fundamental right at issue, properly framed, was the right to engage in private consensual sexual conduct — a right that applied to both homosexuals and heterosexuals alike. In narrowing the claimed liberty interest to embody the very exclusion being challenged, Bowers “disclose[d] the Court’s own failure to appreciate the extent of the liberty at stake” (Lawrence, 539 US at 567).

The same failure is evident here. An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it (see Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 847 [1992] [it is “tempting ... to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government *382interference by other rules of law when the Fourteenth Amendment was ratified. . . . But such a view would be inconsistent with our law”]).

Notably, the result in Lawrence was not affected by the fact, acknowledged by the Court, that there had been no long history of tolerance for homosexuality. Rather, in holding that “[pier-sons in a homosexual relationship may seek autonomy for the[ ] purpose[ of making intimate and personal choices], just as heterosexual persons do” (539 US at 574), Lawrence rejected the notion that fundamental rights it had already identified could be restricted based on traditional assumptions about who should be permitted their protection. As the Court noted, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom” (Lawrence, 539 US at 579; see also id. at 572 [“(history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry” (internal quotation marks and citation omitted)]; Cleburne v Cleburne Living Center, Inc., 473 US 432, 466 [1985] [Marshall, J., concurring in the judgment in part and dissenting in part] [“what once was a ‘natural’ and ‘self-evident’ ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom”]).

Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.

Instead, the Supreme Court has repeatedly held that the fundamental right to marry must be afforded even to those who have previously been excluded from its scope — that is, to those whose exclusion from the right was “deeply rooted.”1 Well into the twentieth century, the sheer weight of precedent accepting the constitutionality of bans on interracial marriage was deemed sufficient justification in and of itself to perpetuate these discriminatory laws (see e.g. Jones v Lorenzen, 441 P2d 986, 989 *383[Okla 1965] [upholding antimiscegenation law since the “great weight of authority holds such statutes constitutional”]) — much as defendants now contend that same-sex couples should be prohibited from marrying because historically they always have been.

Just 10 years before Loving declared unconstitutional state laws banning marriage between persons of different races, 96% of Americans were opposed to interracial marriage (see brief of NAACP Legal Defense and Educational Fund, Inc., as amicus curiae in support of plaintiffs, at 5). Sadly, many of the arguments then raised in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage (see e.g. Kinney v Commonwealth, 71 Va [30 Gratt] 858, 869 [1878] [marriage between the races is “unnatural” and a violation of God’s will]; Pace v State, 69 Ala 231, 232 [1881] [“amalgamation” of the races would produce a “degraded civilization”]; see also Lonas v State, 50 Tenn [3 Heisk] 287, 310 [1871] [“(t)he laws of civilization demand that the races be kept apart”]).

To those who appealed to history as a basis for prohibiting interracial marriage, it was simply inconceivable that the right of interracial couples to marry could be deemed “fundamental.” Incredible as it may seem today, during the lifetime of every Judge on this Court, interracial marriage was forbidden in at least a third of American jurisdictions. In 1948, New York was one of only 18 states in the nation that did not have such a ban. By 1967, when Loving was decided, 16 states still outlawed marriages between persons of different races. Nevertheless, even though it was the ban on interracial marriage — not interracial marriage itself — that had a long and shameful national tradition, the Supreme Court determined that interracial couples could not be deprived of their fundamental right to marry.

Unconstitutional infringements on the right to marry are not limited to impermissible racial restrictions. Inasmuch as the fundamental right to marry is shared by “all the State’s citizens” (Loving, 388 US at 12), the State may not, for example, require individuals with child support obligations to obtain court approval before getting married (see Zablocki, 434 US 374 [1978]). Calling Loving the “leading decision of this Court on the right to marry,” Justice Marshall made clear in Zablocki that Loving

“could have rested solely on the ground that the *384statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. . . .

“Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals” (434 US at 383-384 [citation omitted]).

Similarly, in Turner (482 US 78 [1987]), the Supreme Court determined that the right to marry was so fundamental that it could not be denied to prison inmates (see also Boddie v Connecticut, 401 US 371 [1971] [state requirement that indigent individuals pay court fees to obtain divorce unconstitutionally burdened fundamental right to marry]).

Under our Constitution, discriminatory views about proper marriage partners can no more prevent same-sex couples from marrying than they could different-race couples. Nor can “deeply rooted” prejudices uphold the infringement of a fundamental right (see People v Onofre, 51 NY2d 476, 490 [1980] [“disapproval by a majority of the populace . . . may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision”]). For these reasons, the NAACP Legal Defense and Educational Fund, as amicus, contends that

“[although the historical experiences in this country of African Americans, on the one hand, and gay men and lesbians, on the other, are in many important ways quite different, the legal questions raised here and in Loving are analogous. The state law at issue here, like the law struck down in Loving, restricts an individual’s right to marry the person of his or her choice. We respectfully submit that the decisions below must be reversed if this Court follows the reasoning of the United States Supreme Court’s decision in Loving” (brief of NAACP Legal Defense and Educational Fund, Inc., as amicus curiae in support of plaintiffs, at 3-4; see also brief of New York County Lawyers’ Association and National Black Justice Coalition, as amici curiae in support of plaintiffs [detailing history of antimiscegenation laws and public attitudes toward interracial marriage]).

*385It is no answer that same-sex couples can be excluded from marriage because “marriage,” by definition, does not include them. In the end, “an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning” (Halpern v Attorney Gen. of Can., 65 OR3d 161, 172 OAC 276, 11 71 [2003]). “To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide” (Goodridge v Department of Pub. Health, 440 Mass 309, 348, 798 NE2d 941, 972-973 [2003] [Greaney, J., concurring]).

The claim that marriage has always had a single and unalterable meaning is a plain distortion of history. In truth, the common understanding of “marriage” has changed dramatically over the centuries (see brief of Professors of History and Family Law, as amici curiae in support of plaintiffs). Until well into the nineteenth century, for example, marriage was defined by the doctrine of coverture, according to which the wife’s legal identity was merged into that of her husband, whose property she became. A married woman, by definition, could not own property and could not enter into contracts.2 Such was the very “meaning” of marriage. Only since the mid-twentieth century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support. Indeed, as amici professors note, “The historical record shows that, through adjudication and legislation, all of New York’s sex-specific rules for marriage have been invalidated save for the one at issue here.”

That restrictions on same-sex marriage are prevalent cannot in itself justify their retention. After all, widespread public opposition to interracial marriage in the years before Loving could not sustain the antimiscegenation laws. “[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice” (Lawrence, 539 US at 577-578 [internal quotation marks and citation omitted]; see also id. at 571 [fundamental right to engage in private consensual sexual conduct extends to homosexuals, notwithstanding that “for centuries there have been powerful voices to condemn homo*386sexual conduct as immoral”]). The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.

II. Equal Protection

By virtue of their being denied entry into civil marriage, plaintiff couples are deprived of a number of statutory benefits and protections extended to married couples under New York law. Unlike married spouses, same-sex partners may be denied hospital visitation of their critically ill life partners. They must spend more of their joint income to obtain equivalent levels of health care coverage. They may, upon the death of their partners, find themselves at risk of losing the family home. The record is replete with examples of the hundreds of ways in which committed same-sex couples and their children are deprived of equal benefits under New York law. Same-sex families are, among other things, denied equal treatment with respect to intestacy, inheritance, tenancy by the entirety, taxes, insurance, health benefits, medical decisionmaking, workers’ compensation, the right to sue for wrongful death and spousal privilege. Each of these statutory inequities, as well as the discriminatory exclusion of same-sex couples from the benefits and protections of civil marriage as a whole, violates their constitutional right to equal protection of the laws.

Correctly framed, the question before us is not whether the marriage statutes properly benefit those they are intended to benefit — any discriminatory classification does that — but whether there exists any legitimate basis for excluding those who are not covered by the law. That the language of the licensing statute does not expressly reference the implicit exclusion of same-sex couples is of no moment {see Domestic Relations Law § 13 [“persons intended to be married” must obtain a marriage license]). The Court has, properly, construed the statutory scheme as prohibiting same-sex marriage. That being so, the statute, in practical effect, becomes identical to — and, for purposes of equal protection analysis, must be analyzed as if it were — one explicitly providing that “civil marriage is hereby established for couples consisting of a man and a woman,” or, synonymously, “marriage between persons of the same sex is prohibited.”

On three independent grounds, this discriminatory classification is subject to heightened scrutiny, a test that defendants concede it cannot pass.

*387A. Heightened Scrutiny

1. Sexual Orientation Discrimination

Homosexuals meet the constitutional definition of a suspect class, that is, a group whose defining characteristic is “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others” (Cleburne, 473 US at 440). Accordingly, any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest (see e.g. Alevy v Downstate Med. Ctr. of State of N.Y., 39 NY2d 326, 332 [1976]; Matter of Aliessa v Novello, 96 NY2d 418, 431 [2001]).

“No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny” (Cleburne, 473 US at 472 n 24 [Marshall, J., concurring in the judgment in part and dissenting in part]). Rather, such scrutiny is to be applied when analyzing legislative classifications involving groups who “may well be the target of the sort of prejudiced, thoughtless, or stereotyped action that offends principles of equality found in” the Constitution (id. at 472).

Although no single factor is dispositive, the Supreme Court has generally looked to three criteria in determining whether a group subject to legislative classification must be considered “suspect.” First, the Court has considered whether the group has historically been subjected to purposeful discrimination. Homosexuals plainly have been, as the Legislature expressly found when it recently enacted the Sexual Orientation NonDiscrimination Act (SONDA), barring discrimination against homosexuals in employment, housing, public accommodations, education, credit and the exercise of civil rights. Specifically, the Legislature found

“that many residents of this state have encountered prejudice on account of their sexual orientation, and that this prejudice has severely limited or actually prevented access to employment, housing and other basic necessities of life, leading to deprivation and suffering. The legislature further recognizes that this prejudice has fostered a general climate of hostility and distrust, leading in some instances to *388physical violence against those perceived to be homosexual or bisexual” (L 2002, ch 2, § 1; see also brief of Parents, Families & Friends of Lesbians and Gays, Inc., et al., as amici curiae in support of plaintiffs, at 22-49 [detailing history of state-sanctioned discrimination against gays and lesbians]).

Second, the Court has considered whether the trait used to define the class is unrelated to the ability to perform and participate in society. When the State differentiates among its citizens “on the basis of stereotyped characteristics not truly indicative of their abilities” (Massachusetts Bd. of Retirement v Murgia, 427 US 307, 313 [1976]), the legislative classification must be closely scrutinized. Obviously, sexual orientation is irrelevant to one’s ability to perform or contribute.

Third, the Court has taken into account the group’s relative political powerlessness. Defendants contend that classifications based on sexual orientation should not be afforded heightened scrutiny because, they claim, homosexuals are sufficiently able to achieve protection from discrimination through the political process, as evidenced by the Legislature’s passage of SONDA in 2002. SONDA, however, was first introduced in 1971. It failed repeatedly for 31 years, until it was finally enacted just four years ago. Further, during the Senate debate on the Hate Crimes Act of 2000, one Senator noted that “[i]t’s no secret that for years we could have passed a hate-crimes bill if we were willing to take out gay people, if we were willing to take out sexual orientation” (New York State Senate Debate on Senate Bill S 4691-A, June 7, 2000, at 4609 [statement of Senator Schneider-man]; accord id. at 4548-4549 [statement of Senator Connor]). The simple fact is that New York has not enacted anything approaching comprehensive statewide domestic partnership protections for same-sex couples, much less marriage or even civil unions.

In any event, the Supreme Court has never suggested that racial or sexual classifications are not (or are no longer) subject to heightened scrutiny because of the passage of even comprehensive civil rights laws (see Cleburne, 473 US at 467 [Marshall, J., concurring in the judgment in part and dissenting in part]). Indeed, sex discrimination was first held to deserve heightened scrutiny in 1973 — after passage of title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, federal laws prohibiting sex discrimination. Such measures acknowledge — rather *389than mark the end of — a history of purposeful discrimination (see Frontiero v Richardson, 411 US 677, 687-688 [1973] [citing antidiscrimination legislation to support conclusion that classifications based on sex merit heightened scrutiny]).

Nor is plaintiffs’ claim legitimately answered by the argument that the licensing statute does not discriminate on the basis of sexual orientation since it permits homosexuals to marry persons of the opposite sex and forbids heterosexuals to marry persons of the same sex. The purported “right” of gays and lesbians to enter into marriages with different-sex partners to whom they have no innate attraction cannot possibly cure the constitutional violation actually at issue here. “The right to marry is the right of individuals, not of . . . groups” (Perez v Sharp, 32 Cal 2d 711, 716, 198 P2d 17, 20 [1948]). “Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains” (32 Cal 2d at 725, 198 P2d at 25). Limiting marriage to opposite-sex couples undeniably restricts gays and lesbians from marrying their chosen same-sex partners whom “to [them] may be irreplaceable” (id.) — and thus constitutes discrimination based on sexual orientation.3

2. Sex Discrimination

The exclusion of same-sex couples from civil marriage also discriminates on the basis of sex, which provides a further basis for requiring heightened scrutiny. Classifications based on sex must be substantially related to the achievement of important governmental objectives (see e.g. Craig v Boren, 429 US 190, 197 [1976]), and must have an “exceedingly persuasive justification” (Mississippi Univ. for Women v Hogan, 458 US 718, 724 [1982] [citations omitted]).

Under the Domestic Relations Law, a woman who seeks to marry another woman is prevented from doing so on account of her sex — that is, because she is not a man. If she were, she would be given a marriage license to marry that woman. That *390the statutory scheme applies equally to both sexes does not alter the conclusion that the classification here is based on sex. The “equal application” approach to equal protection analysis was expressly rejected by the Supreme Court in Loving: “[W]e reject the notion that the mere ‘equal application’ of a statute containing [discriminatory] classifications is enough to remove the classifications from the [constitutional] proscription of all invidious . . . discriminations” (388 US at 8). Instead, the Loving court held that “[t]here can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race [where the] statutes proscribe generally accepted conduct if engaged in by members of different races” (id. at 11; see also Johnson v California, 543 US 499, 506 [2005]; McLaughlin v Florida, 379 US 184, 191 [1964]; Anderson v Martin, 375 US 399, 403-404 [1964]; Shelley v Kraemer, 334 US 1, 21-22 [1948]; J. E. B. v Alabama ex rel. T. B., 511 US 127, 141-142 [1994] [government exercise of peremptory challenges on the basis of gender constitutes impermissible sex discrimination even though based on gender stereotyping of both men and women]).

3. Fundamental Right

“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests” (Lawrence, 539 US at 575). Because, as already discussed, the legislative classification here infringes on the exercise of the fundamental right to marry, the classification cannot be upheld unless it is necessary to the achievement of a compelling state interest (see Onofre, 51 NY2d at 492 n 6; Alevy, 39 NY2d at 332; Eisenstadt v Baird, 405 US 438, 447 n 7 [1972]). “[C]ritical examination of the state interests advanced in support of the classification is required” (Zablocki, 434 US at 383 [internal quotation marks and citations omitted]). And if “the means selected by the State for achieving” even “legitimate and substantial interests” unnecessarily impinge on the right to marry, the statutory distinction “cannot be sustained” (id. at 388).

B. Rational-Basis Analysis

Although the classification challenged here should be analyzed using heightened scrutiny, it does not satisfy even rational-basis review, which requires that the classification “rationally further *391a legitimate state interest” (Affronti v Crosson, 95 NY2d 713, 718 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001]). Rational-basis review requires both the existence of a legitimate interest and that the classification rationally advance that interest. Although a number of interests have been proffered in support of the challenged classification at issue, none is rationally furthered by the exclusion of same-sex couples from marriage. Some fail even to meet the threshold test of legitimacy.

Properly analyzed, equal protection requires that it be the legislated distinction that furthers a legitimate state interest, not the discriminatory law itself (see e.g. Cooper, 49 NY2d at 78; Romer v Evans, 517 US 620, 633 [1996]). Were it otherwise, an irrational or invidious exclusion of a particular group would be permitted so long as there was an identifiable group that benefitted from the challenged legislation. In other words, it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State’s interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.

1. Children

Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.

Nor does this exclusion rationally further the State’s legitimate interest in encouraging heterosexual married couples to procreate. Plainly, the ability or desire to procreate is not a prerequisite for marriage. The elderly are permitted to marry, and many same-sex couples do indeed have children. Thus, the statutory classification here — which prohibits only same-sex couples, and no one else, from marrying — is so grossly underinclusive and overinclusive as to make the asserted rationale in promoting procreation “impossible to credit” (Romer, 517 US at 635).4 Indeed, even the Lawrence dissenters observed that “encouragement of procreation” could not “possibly” be a justification *392for denying marriage to gay and lesbian couples, “since the sterile and the elderly are allowed to marry” (539 US at 605 [Scalia, J., dissenting]; see also Lapides v Lapides, 254 NY 73, 80 [1930] [“inability to bear children” does not justify án annulment under the Domestic Relations Law]).

Of course, there are many ways in which the government could rationally promote procreation — for example, by giving tax breaks to couples who have children, subsidizing child care for those couples, or mandating generous family leave for parents. Any of these benefits — and many more — might convince people who would not otherwise have children to do so. But no one rationally decides to have children because gays and lesbians are excluded from marriage.

In holding that prison inmates have a fundamental right to marry — even though they cannot procreate — the Supreme Court has made it clear that procreation is not the sine qua non of marriage. “Many important attributes of marriage remain . . . after taking into account the limitations imposed by prison life. . . . [I]nmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship” (Turner, 482 US at 95-96). Nor is there any conceivable rational basis for allowing prison inmates to marry, but not homosexuals. It is, of course, no answer that inmates could potentially procreate once they are released — that is, once they are no longer prisoners — since, as nonprisoners, they would then undeniably have a right to marry even in the absence of Turner.

Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage — purportedly to encourage other people to procreate. Indeed, the protections that the State gives to couples who do marry — such as the right to own property as a unit or to make medical decisions for each other — are focused largely on the adult relationship, rather than on the couple’s possible role as parents. Nor does the *393plurality even attempt to explain how offering only heterosexuals the right to visit a sick loved one in the hospital, for example, conceivably furthers the State’s interest in encouraging opposite-sex couples to have children, or indeed how excluding same-sex couples from each of the specific legal benefits of civil marriage — even apart from the totality of marriage itself — does not independently violate plaintiffs’ rights to equal protection of the laws. The breadth of protections that the marriage laws make unavailable to gays and lesbians is “so far removed” from the State’s asserted goal of promoting procreation that the justification is, again, “impossible to credit” (Romer, 517 US at 635).

The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it. Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare, as defendants do not dispute (see e.g. Baker v State, 170 Vt 194, 219, 744 A2d 864, 882 [1999] [“(i)f anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against”]; cf. Matter of Jacob, 86 NY2d 651, 656 [1995] [“(t)o rule otherwise would mean that the thousands of New York children actually being raised in homes headed by two unmarried persons could have only one legal parent, not the two who want them”]). The State’s interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses.

Nor may the State legitimately seek either to promote heterosexual parents over homosexual parents, as the plurality posits, or to discourage same-sex parenting. First, granting such a preference to heterosexuals would be an acknowledgment of purposeful discrimination against homosexuals, thus constituting a flagrant equal protection violation. Second, such a preference would be contrary to the stated public policy of New York, and therefore irrational (see 18 NYCRR 421.16 [h] [2] [applicants to be adoptive parents “shall not be rejected solely on the basis of homosexuality”]; see also Jacob, 86 NY2d at 668 [same-sex partner of a legal parent may adopt that parent’s *394child; “(a)ny proffered justification for rejecting (adoptions) based on a governmental policy disapproving of homosexuality or encouraging marriage would not apply”]; brief of American Psychological Association et al., as amici curiae in support of plaintiffs, at 34-43 [collecting the results of social scientific research studies which conclude that children raised by same-sex parents fare no differently from, and do as well as, those raised by opposite-sex parents in terms of the quality of the parent-child relationship and the mental health, development and social adjustment of the child]; brief of Association to Benefit Children et al., as amici curiae in support of plaintiffs, at 31-35 [same conclusion]).5

2. Moral Disapproval

The government cannot legitimately justify discrimination against one group of persons as a mere desire to preference another group (see Metropolitan Life Ins. Co. v Ward, 470 US 869, 882 and n 10 [1985]). Further, the Supreme Court has held that classifications “drawn for the purpose of disadvantaging the group burdened by the law” can never be legitimate (Romer, 517 US at 633), and that “a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest” (Department of Agriculture v Moreno, 413 US 528, 534 [1973]; see also Onofre, 51 NY2d at 490 [“disapproval by a majority of the populace . . . may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision”]; Palmore v Sidoti, 466 US 429, 433 [1984] [“(p)rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect”]; Lawrence, 539 US at 571 [no legitimate basis to penalize gay and lesbian relationships notwithstanding that “for centuries there have been powerful voices to condemn homosexual conduct as immoral”]; id. at 583 [O’Connor, J., concurring in the judgment] [“(m)oral disapproval” of homosexuals cannot be a legitimate state interest]).

*3953. Tradition

That civil marriage has traditionally excluded same-sex couples — i.e., that the “historic and cultural understanding of marriage” has been between a man and a woman — cannot in itself provide a rational basis for the challenged exclusion. To say that discrimination is “traditional” is to say only that the discrimination has existed for a long time. A classification, however, cannot be maintained merely “for its own sake” (Romer, 517 US at 635). Instead, the classification (here, the exclusion of gay men and lesbians from civil marriage) must advance a state interest that is separate from the classification itself (see Romer, 517 US at 633, 635). Because the “tradition” of excluding gay men and lesbians from civil marriage is no different from the classification itself, the exclusion cannot be justified on the basis of “history.” Indeed, the justification of “tradition” does not explain the classification; it merely repeats it. Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional (see also Goodridge, 440 Mass at 332 n 23, 798 NE2d at 961 n 23 [“it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been”]).6

4. Uniformity

The State asserts an interest in maintaining uniformity with the marriage laws of other states. But our marriage laws currently are not uniform with those of other states. For example, New York — unlike most other states in the nation— permits first cousins to marry (see Domestic Relations Law § 5). This disparity has caused no trouble, however, because well-settled principles of comity resolve any conflicts. The same well-settled principles of comity would resolve any conflicts arising from any disparity involving the recognition of same-sex marriages.

It is, additionally, already impossible to maintain uniformity among all the states, inasmuch as Massachusetts has now legalized same-sex marriage. Indeed, of the seven jurisdictions that border New York State, only Pennsylvania cur*396rently affords no legal status to same-sex relationships. Massachusetts, Ontario and Quebec all authorize same-sex marriage; Vermont and Connecticut provide for civil unions (see Vt Stat Ann, tit 15, § 1204 [a]; Conn Gen Stat § 46b-38nn); and New Jersey has a statewide domestic partnership law (see NJ Stat Ann § 26:8A-1 et seq.). Moreover, insofar as a number of localities within New York offer domestic partnership registration, even the law within the state is not uniform. Finally, and most fundamentally, to justify the exclusion of gay men and lesbians from civil marriage because “others do it too” is no more a justification for the discriminatory classification than the contention that the discrimination is rational because it has existed for a long time. As history has well taught us, separate is inherently unequal.

III. The Legislature

The Court ultimately concludes that the issue of same-sex marriage should be addressed by the Legislature. If the Legislature were to amend the statutory scheme by making it gender neutral, obviously the instant controversy would disappear. But this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic. After all, by the time the Court decided Loving in 1967, many states had already repealed their antimiscegenation laws. Despite this trend, however, the Supreme Court did not refrain from fulfilling its constitutional obligation.

The fact remains that although a number of bills to authorize same-sex marriage have been introduced in the Legislature over the past several years, none has ever made it out of committee (see 2005 NY Senate-Assembly Bill S 5156, A 7463; 2005 NY Assembly Bill A 1823; 2003 NY Senate Bill S 3816; 2003 NY Assembly Bill A 7392; 2001 NY Senate Bill S 1205; see also 2005 NY Senate-Assembly Bill S 1887-A, A 3693-A [proposing establishment of domestic partnerships]; 2004 NY Senate-Assembly Bill S 3393-A, A 7304-A [same]).

It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court’s duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.

I am confident that future generations will look back on today’s decision as an unfortunate misstep.

*397Judges G.B. Smith and Read concur with Judge R.S. Smith; Judge Gbaffeo concurs in result in a separate opinion in which Judge G.B. Smith concurs; Chief Judge Kaye dissents in another opinion in which Judge Ciparick concurs; Judge Rosenblatt taking no part.

In each case: Order affirmed, without costs.

AINSWORTH, Circuit Judge:

In this criminal case the question for decision is whether the circumstances required the giving of the Miranda warnings by Government agents to safeguard defendant’s Fifth Amendment privilege against self-incrimination by the presence of counsel during interrogation, before obtaining an oral and later a written incriminating statement from defendant. Both confessions were received in evidence at the trial, over appellant’s objection, and he was convicted of transporting a stolen motor vehicle in interstate commerce (18 U.S.C. § 2312).1

On June 14, 1966 — one day after the Supreme Court announced its decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) —appellant and his companion, Robert Carroll Sharp, were stopped in an automobile by the Bal Harbour, Florida, police for a traffic violation. Sharp, who was driving, was unable to post the $50 bond required of nonresident traffic violators and was taken to jail. When he failed to prove ownership of the vehicle, the local police contacted the FBI. That evening two agents of the FBI interviewed Sharp in jail about the vehicle, and according to their testimony, Sharp said that during the latter part of May 1966 he was working at the Olympus Hotel in Tacoma, Washington, with the defendant, Windsor, and a girl named Arlene Stephens; further, Sharp said that Miss Stephens had rented a car from a car rental agency and asked him and Windsor to take the car back to the agency for her, which they did, but they informed the agency that the car was defective and that Miss Stephens wanted another car; and finally that on this false representation the agency furnished him and Windsor with a 1965 Plymouth, *532and shortly thereafter they left the State of Washington together in the vehicle and eventually drove to Miami. The agents testified that Sharp admitted that he knew the car was obtained under false pretenses and that it was stolen, and further said that he and the defendant, Windsor, drove the car to Miami.

Sharp gave the Government agents the key to his motel room at the Alda Motel which he told the agents he shared with defendant Windsor, and the agents immediately went to the motel the same night to search it. Agent Hufford testified that when the agents arrived at the motel they first talked in the lobby with two persons by the name of Roth and Morgan for background information, and attempted to determine if they knew anything about the ear. The agents asked to talk with them in their motel room and upon entering the room they saw a gun which they seized to make sure it could not be used against them. The agents asked whose gun it was and Windsor, who was in the room, identified himself and said the gun was his. The agents then told Windsor they had the key to his motel room to look for Sharp’s draft card, and asked him if he would go with them. He agreed and accompanied the agents to the room. Agent Hufford testified that he and his fellow agent identified themselves and informed Windsor he was not under arrest and was not being detained in any way and was not to construe this as being detained; that he did not have to make a statement; that any statement he did make could be used against him in a court of law; and that he could speak to an attorney or anyone else before he said anything at all; that he could terminate the interview at any time. He was also advised that in the event he was arrested an attorney would be appointed for him by the court.

According to the agents’ testimony, appellant Windsor acknowledged that he understood their warnings and then, in response to their questions, gave them an oral statement admitting that Miss Stephens had rented a car which he and Sharp had returned to the agency and secured a 1965 Plymouth in its place; that they knew the car had been obtained under false pretenses; and that when it was driven across the state line it was stolen. Whereupon Agent Hufford said he left the room, telephoned the United States Attorney and obtained authority to prosecute Windsor. He returned to the room, arrested appellant and brought him to jail.

The following day the Government agents presented to appellant — then in custody — a prepared written statement in the handwriting of Agent Hufford, of the incriminating information they had obtained from him the night before in his motel room. They requested that he write a paragraph at the end of the statement, which appellant did at their dictation, as follows:

“I have read this three page statement & state it is true & complete to the best of my Nolage [sic] I have initaled [sic] the other to [sic] pages, all corrections, & I signed this below.”

He then signed the statement at their request. No warning or explanation of any kind of appellant’s constitutional rights, of his right to remain silent, that any statement he made could be used as evidence against him, and of his right to the presence of counsel during interrogation, was given at this interview.

The written statement opens with the following preamble:

“I, Ronald Dale Windsor, make the following free and voluntary statement to J. P. Hufford who had identified himself to me as a Special Agent of the FBI. SA Hufford also advised me I did not have to make a statement and any statement I did make could be used against me in court. He further advised me I could speak with an attorney or anyone else before saying anything at all. No force, threats, or promises of benefit were used to get me to make this statement and I under*533stand I can have an attorney appointed for me if I am arrested.” 2

Appellant contends that the Government agents failed to advise him that he had the right to have an attorney, retained or appointed, present during the initial interrogation when he gave the incriminating oral statement at his motel or later when he signed the written incriminating statement. He contends that though he was not held in formal custody when interrogated in the motel room, his arrest was certainly contemplated, Sharp having implicated both himself and Windsor, and that the full Miranda, warnings should have been given prior to any interview in which a confession or admission of guilt was sought from the suspect. Appellant seeks a reversal of his conviction and a new trial on the ground that the incriminating statements were inadmissible as evidence against him for failure to give the full Miranda warnings.

In Miranda v. State of Arizona, 384 U.S. 436, 478, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), the Supreme Court said:

“ * * * we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

It is obvious that the full Miranda warnings were not given to appellant at any time prior to obtaining either the oral or written confession because Windsor was not informed by the Government agents that he was entitled to the presence of an attorney, retained or appointed, during the interrogations. The question is whether the circumstances required it and whether the facts of the case make the principles of Miranda applicable. The written confession was signed after Windsor wrote the final paragraph in his own handwriting, at the dictation of the FBI agents. There is no question that Windsor was then in custody and deprived of his freedom. Failure to give the full Miranda warnings at that time was undoubtedly a violation of the prohibition against taking a confession from a defendant while in police custody without first informing him that he is entitled to the presence of counsel, retained or appointed. Merely telling him that he could speak with an attorney or anyone else before he said anything at all is not the same as informing him that he is entitled to the presence of an attorney during interrogation and that one will be appointed if he cannot afford one. The obvious purpose of the agents interrogating him was to elicit an incriminating statement for “the investi*534gation was no longer a general inquiry into an unsolved crime,” but had begun “to focus on a particular suspect,” namely, Windsor. See Escobedo v. State of Illinois, 378 U.S. 478, 490, 491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977 (1964).

Obtaining the oral confession was under different circumstances. Appellant had been informed by the agents that he was not under arrest before being interrogated in his motel room. Nevertheless, the Government agents already knew from Windsor’s companion and co-defendant, Sharp, all of the circumstances pertaining to the transportation of the vehicle by Sharp and Windsor from Tacoma to Miami. The focus of the investigation was clearly and unmistakably upon Windsor while he was being interrogated. In effect he was already being detained and in custody or being deprived of his freedom in a significant way. As soon as he made his incriminating oral statement, Agent Hufford left the room, telephoned the United States Attorney and obtained authority to place him under arrest. Sharp had already given the agents sufficient evidence for them to conclude that Windsor was also involved in the interstate transportation of the stolen car. There was, therefore, probable cause to arrest him. The Government agents’ testimony that Windsor was not a suspect and not under arrest when questioned in his motel room is belied by the facts of the case. We cannot permit the Miranda, principles to be so easily frustrated. Windsor was definitely the central figure in their investigation and should have been first informed of his right to the presence of counsel, retained or appointed, during the initial interrogation, as well as later when requested to sign the written confession while in jail. See Miranda v. State of Arizona, supra; 3 Escobedo v. State of Illinois, supra.4 See also Sobel (Nathan R. Sobel, Justice of the Supreme Court, Kings County, New York), The New Confession Standards “Miranda v. Arizona” (1966, Gould Publications), pp. 60-63.5

Since this case developed one day after Miranda was decided by the Supreme Court, it is apparent that the Gov-*535emment agents had not yet been briefed on its effect and, therefore, had not given the full warning to appellant required by that decision.

Reversed and remanded for a new trial,

Cooke, J.

Marriage being a status with which the State is deeply concerned, separation agreements subjected to attack are tested carefully. "A court of equity does not limit its inquiry to the ascertainment of the fact whether what had taken place would, as between other persons, have constituted a contract, and give relief, as a matter of course, if a formal contract be established, but it further inquires whether the contract [between husband and wife] was just and fair, and equitably ought to be enforced, and administers relief where both the contract and the circumstances require it” (Hen*66dricks v Isaacs, 117 NY 411, 417; Hungerford v Hungerford, 161 NY 550, 553).

We review here the grant by the Appellate Division of a divorce to one spouse, because of a living separate and apart by the marital parties pursuant to a separation agreement as provided by statute (Domestic Relations Law, § 170, subd [6]), and, more particularly, the declaration that a portion of the agreement, which stipulated that there be an equal division of certain securities, was null and void.

Henrietta Christian and William Christian were married in 1958. Five years later a daughter was born and, about two years thereafter, a son. The husband, the holder of a degree in mechanical engineering, was the vice-president in charge of manufacturing for a metal fabricating concern. The wife in time had acquired a master’s degree in social work and held a position at a school for girls. Unfortunately, differences arose and, following a bit of marriage counseling, they entered into a separation agreement on January 15, 1972. At that time, the husband’s employment earnings were $40,000 a year and the wife’s $10,000. In addition, both also had separate unearned income.

The agreement contained a section numbered "6”, entitled "Division of Property”. In it, provisions were made with reference to such items as the family residence, automobiles, household furnishings, hospital, medical and dental care policies and life insurance. The section concluded with the paragraph: "During the period of the separation assets held in individual name shall continue to be so held and all joint assets shall continue to be held jointly. In the event that the parties are divorced all assets held by the parties in their joint and individual names on January 1, 1972, a list of which properties is appended hereto as Schedule A, shall be divided equally between the parties so that the Husband shall take one-half of all assets held by the Wife in her individual name on January 1, 1972 and she shall take one-half of all assets held by the Husband on that date. It is the intent of the parties that so far as economic circumstances of the parties permit the money which each receives from the other shall be preserved and left by Will to the two children, Christine and Keith.” No mention was made of support of the wife, but the husband covenanted to pay $100 a week for the children.

This action was commenced in August of 1972 by the plaintiff wife for divorce on the ground of cruel and inhuman *67treatment, pursuant to subdivision (1) of section 170 of the Domestic Relations Law. The defendant, in the following January, served an amended answer containing a counterclaim for divorce predicated on the living separate and apart by the parties since the execution of the separation agreement, a period in excess of one year, and the due performance by defendant of all of the agreement’s terms and conditions. The answer also prayed that the separation agreement be incorporated but not merged in the judgment and for such other relief as would be just. For her reply, plaintiff denied the essential allegations of the counterclaim and asserted affirmative defenses to the effect that the agreement was procured as a result of fraud, misrepresentations and concealment, was the product of coercion and duress, was made without consideration and violated public policy.

During a nonjury trial, plaintiff’s complaint was dismissed for failure to make out a prima facie case. Following full submission of proof, Supreme Court declared the separation agreement null and void for fraud, set it aside in its entirety, dismissed the husband’s counterclaim, and ordered the parties to co-operate to effect a reconciliation and resumption of the marital relationship. The last paragraph of section "6” of the agreement was examined. Noting that the husband was aware that his stocks listed in the schedule were worth’$200,000 while those of the wife had a value of $800,000 to $900,000, that the wife contended that she had no idea of the relative values of the securities, that the husband cleverly maneuvered the retention of the attorney who ostensibly represented the wife and drew the agreement, that neither party informed the attorney of the values of the stock being split, it was concluded that the husband’s conduct in procuring the drafting of the agreement and in concealing from the attorney the details of the distribution of assets constituted such fraud as to vitiate the agreement completely.

The Appellate Division unanimously reversed, on the law and the facts, granted defendant husband’s counterclaim for divorce and declared the last paragraph of provision "6” of the parties’ agreement null and void. It was held that the record did not support Supreme Court’s findings of fact to the effect that defendant was guilty of fraud or overreaching with regard to the formulation or signing of the agreement, that plaintiff failed to sustain her burden of proof as to her affirmative defense of fraud in the inducement. Insofar as the *68parties had lived separate and apart pursuant to the agreement, properly executed and filed, and adhered to its terms for more than a year, thus fulfilling the statutory requirements, defendant was held to be entitled to a decree of divorce. In the Appellate Division’s view, the wife was not represented by an attorney acting solely in her interests and her knowledge of financial matters was not equal to that of her husband. In the light of these facts, the relative value of the listed securities to be divided and the high price plaintiff apparently was prevailed upon to pay for her husband’s signature to the separation agreement, the last paragraph of provision "6” was held to be so unconscionable as to be unenforceable.

With the enactment of the Divorce Reform Law of 1966 (L 1966, ch 254), New York abandoned its position as the only State in the union which regarded adultery as the sole ground for absolute divorce. Under a new section 170 of the Domestic Relations Law, an action for divorce may be maintained on any one of six grounds, including adultery, the scope of which was extended by definition (subd [4]). Cruel and inhuman treatment, abandonment and imprisonment were joined as bases for the action (subds [1], [2], [3]). Finally, under the last two subdivisions, two new grounds for absolute divorce were specified—living apart pursuant to a separation decree or judgment and living separate and apart pursuant to a written separation agreement (subds [5], [6]).

These last two bases have become known as the "no fault” grounds, since they were designed to make separation a ground for divorce, regardless of fault, as long as the authenticity of the separation is supported by a separation decree or agreement (see Foster & Freed, Matrimonial Law [rev ed, 1973], p 29).1 "The decree [or agreement] is simply intended as evidence of the authenticity and reality of the separation” (Gleason v Gleason, 26 NY2d 28, 35). This requirement as to a separation decree or agreement is peculiar to New York and reflects legislative concern over the fraud and collusion which historically infected divorce actions involving adultery. At the 1966 legislative session, the original broad proposal for a "living separate and apart” ground, as incorporated in the Wilson-Sutton Bill, at first rejected in the so-called "Leader’s *69Bill”, was finally incorporated in the compromise bill, conditioned on the requirements that there be a formal and filed written agreement and that the party seeking to come within the embrace of such ground prove that "he or she has duly performed all the terms and conditions of such agreement”2 (1 Foster & Freed, Law and the Family, pp 264, 333, n 9; p 337; Foster & Freed, The Divorce Law Reform [1970], p 22; see Littlejohns v Littlejohns, 76 Misc 2d 82, 86, affd on opn at Trial Term 42 AD2d 957).

Divorces provided for in subdivisions (5) and (6) are also referred to as "conversion” divorces in that they permit the conversion of a judicial separation decree or separation agreement into an absolute divorce decree. In Gleason, an action under subdivision (5), it was held that "the statute, as a whole, points [to] the construction that all that has to be proved is that there is some kind of formal document of separation * * * that the plaintiff has complied with its terms and that the parties have lived apart” pursuant to the document for the statutory period (p 37).

It was the legislative intent to provide these nonfault grounds for divorce where marriages are dead, based on a recognition that it was morally and socially desirable, to society and to the parties to such a union, to enable them " 'to extricate themselves from a perpetual state of marital limbo’ ” (Gleason v Gleason, 26 NY2d 28, 35, 37, supra). The "vital and operative” fact, in subdivision (6) divorce cases, is the actual living apart of the parties—pursuant to the separation agreement (cf. id., p 37). Put a bit differently, the function of the document is "merely to authenticate the fact of separation” (cf. id., p 37). Once there has been a separation for one or more years (L 1970, ch 835, § 2) supported by the prescribed separation agreement with which there has been substantial compliance, the statute suggests no condition or restriction on the right of either party to commence the action (see Tantleff v Tantleff, 60 Misc 2d 608, 611, affd on limited grounds 33 AD2d 898). A number of decisions, following in the wake of the 1966 reforms, have held that even though individual clauses in a separation agreement were void, the agreement supplied grounds for divorce under subdivision (6) of section 170 of the Domestic Relations Law since such agreements survive for that purpose (see, e.g., Bruno v Bruno, 51 AD2d *70862, mot for lv to app den 39 NY2d 706; Seligman v Seligman, 78 Misc 2d 632, 635; Hummel v Hummel, 62 Misc 2d 595, 599; but see Markowitz v Markowitz, 77 Misc 2d 586, 589, 592).

The cause of action in defendant’s counterclaim is one for divorce under subdivision (6) of section 170, and the reply thereto asserts affirmative defenses. No cause is set forth by either party for enforcement or invalidation of the separation agreement. As to said counterclaim, it is the physical separation, rather than the writing, which constitutes the actual basis of the cause (Littlejohns v Littlejohns, 76 Misc 2d 82, 86, affd on opn at Trial Term 42 AD2d 957, supra; Hummel v Hummel, 62 Misc 2d 595, 599, supra). The agreement is "simply intended as evidence of the authenticity and reality of the separation” (cf. Gleason v Gleason, supra, p 35; Harris v Harris, 36 AD2d 594; see Martin v Martin, 63 Misc 2d 530, 533). In Littlejohns the agreement was viewed as evidence of the parties’ actual and continued separation (p 86), and, in Markowitz, the instrument was said to be "merely documentary proof of a separation” (p 591). In Martin, a stipulation made in open court, the transcript of which was filed with the County Clerk, was held to carry no less weight than a written agreement, since the purpose of the filing provision in respect to separation agreements is to evidence the fact that the agreement was made before maintenance of the divorce action (but see Nitschke v Nitschke, 66 Misc 2d 435, 436-437; Jacobs v Jacobs, 55 Misc 2d 9).

Although a written separation agreement is a sine qua non to a divorce under subdivision (6), it is evidentiary in nature and admissible under general rules of evidence (see Richardson, Evidence [Prince—10th ed], § 643). By the same token, proof independent of the agreement would also be admissible on the question of whether or not the parties actually lived separate and apart for at least one year. Therefore, if the separation agreement conforms to the statute but is otherwise found to be void and unenforceable insofar as its substantial provisions are concerned, generally it may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement (see Henderson v Henderson, 47 AD2d 801, app dsmd 37 NY2d 782; 11A Zett-Edmonds-Schwartz, NY Civ Prac, Matrimonial Actions, § 21.05, p 21-14; see, also, La Barge v La Barge, 84 Misc 2d 523, 524-525; but see Cicerale v Cicerale, 85 Misc 2d 1071, 1075). In this *71same vein, it was held, long before 1966, in Reischneld v Reischneld (100 Misc 561), an action for separation based on abandonment and other grounds, that, even though void, a separation agreement negated an abandonment since the husband and wife separated voluntarily (see Matter of Brown, 153 Misc 282, 284; 16 NY Jur, Domestic Relations, § 886; see, also, Rosenbaum v Rosenbaum, 56 Misc 2d 221, 224). Since, as the Appellate Division here stated, "[t]he parties have lived separate and apart from each other pursuant to their agreement, which was properly executed and filed, and each has adhered to the terms thereof for a period of more than one year”, the requirements of subdivision (6) were fulfilled and that court properly granted a divorce on the counterclaim.

Said court was of the view, however, that the portion of the agreement which called for an equal division of the assets listed in the annexed schedule was "so unconscionable as to be unenforceable” and that the wife should not be required to pay such substantial sums to her husband "upon the advent of such divorce in compliance with a portion of the separation agreement which is tainted with unconscionability” citing Riemer v Riemer (48 Misc 2d 873, affd 25 AD2d 956, mot for lv to app dsmd 17 NY2d 915). In Riemer the word "unconscionable” does not appear, but, over the years, an unconscionable bargain has been regarded as one " 'such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other’ ” (Hume v United States, 132 US 406, 411), the inequality being " 'so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense’ ” (Mandel v Liebman, 303 NY 88, 94). Unconscionable conduct is something of which equity takes cognizance, when warranted (see Weirfield Holding Corp. v Pless & Seeman, 257 NY 536; Graf v Hope Bldg. Corp., 254 NY 1, 4; Howard v Howard, 122 Vt 27; 27 Am Jur 2d, Equity, § 24, pp 549-550; cf. 2 Pomeroy’s Equity Jurisprudence [4th ed], § 873, p 1804).

Generally, separation agreements which are regular on their face are binding on the parties, unless and until they are put aside (2 Foster & Freed, Law and the Family, p 476; see, also, Schmelzel v Schmelzel, 287 NY 21, 26; 2 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], § 36, subd 1, p 36-3). Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection *72with the negotiation of property settlement provisions. Furthermore, when there has been full disclosure between the parties, not only of all relevant facts but also of their contextual significance, and there has been an absence of inequitable conduct or other infirmity which might vitiate the execution of the agreement, courts should not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident or one-sided.

If voidable, such an agreement may be set aside under principles of equity in an action in which such relief is sought in a cause of action or by way of affirmative defense (Susquehanna S. S. Co. v Andersen & Co., 239 NY 285, 292-294; 16 NY Jur, Domestic Relations, § 715). Agreements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost of good faith (Ducas v Guggenheimer, 90 Misc 191, 194-195, affd sub nom. Ducas v Ducas, 173 App Div 884). There is a strict surveillance of all transactions between married persons, especially separation agreements (Hendricks v Isaacs, 117 NY 411, 417, supra; Benesch v Benesch, 106 Misc 395, 402; 2 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], § 37, subd 4, p 37-9). Equity is so zealous in this respect that a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract (Hungerford v Hungerford, 161 NY 550, 553, supra; Cain v Cain, 188 App Div 780, 782; Crowell v Crowell, 135 Misc 530, 532, affd 229 App Div 771). These principles in mind, courts have thrown their cloak of protection about separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity. (Scheinberg v Scheinberg, 249 NY 277, 282-283; Hungerford v Hungerford, 161 NY 550, 553, supra; Matter of Smith, 243 App Div 348, 353; Ducas v Guggenheimer, 90 Misc 191, 194, affd sub nom. Ducas v Ducas, 173 App Div 884, supra; Montgomery v Montgomery, 170 NYS 867, affd 187 App Div 882; see Validity of Separation Agreement As Affected by Fraud, Coercion, Unfairness or Mistake, Ann., 5 ALR 823, 827).

To warrant equity’s intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching (2 *73Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], § 37, subd 5, p 37-12; cf. Matter of Baruch, 205 Misc 1122, 1124, affd 286 App Div 869; Pegram v Pegram, 310 Ky 86, 89-90). In determining whether a separation agreement is invalid, courts may look at the terms of the agreement to see if there is an inference, or even a negative inference, of overreaching in its execution. If the execution of the agreement, however, be fair, no further inquiry will be made.

Whether a contract is entire or severable generally is a question of intention, to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted (5 Williston, Contracts [3d ed], § 767, p 629). Here the parties had a right to and did, by expressly stipulating that if any provision of the separation agreement be held invalid or unenforceable all other shall nevertheless continue in full force, make the agreement within reasonable limits divisible, and there is little room for construction (New Era Homes Corp. v Forster, 299 NY 303, 306-307; Coppedge v Leiser, 71 Idaho 248, 251-253; see United States v Bethlehem Steel Corp., 315 US 289, 298). Courts were therefore, by contract terms, free to adjudge the validity of the last paragraph of provision "6” of the separation agreement without consequential effect on the remainder of the writing.

This case is of moment. Important it is, because separation agreements have assumed a new and greater legal dimension. Not only may they serve as "evidence of the authenticity and reality of the separation” which is a basis for absolute divorce but, even though a portion of the agreement, such as one dealing with the economics or property of the marital parties, be declared void because of overreaching in bringing about its execution, the separation agreement still retains vitality as an essential ingredient in such an action for dissolution of the marriage. Because of the law’s purpose, to achieve its moral and social goals and to avoid a frustration of those aims, separation agreements must not be permitted to be employed as instruments for the improper exaction in the inducement of execution of unconscionable terms within a frame of inequitable conduct.

The order of the Appellate Division, insofar as appealed from, should be reversed, without costs, and the case remitted to the Supreme Court, Suffolk County, for further proceedings *74including a hearing and findings as may be appropriate in accordance with this opinion.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order, insofar as appealed from, reversed, without costs, and the case remitted to Supreme Court, Suffolk County, for further proceedings in accordance with the opinion herein.

*968Cardona, P.J.

Appeal from a decision of the Workers’ Compensation Board, filed July 6, 2004, which ruled that claimant is the legal widow of decedent and awarded her workers’ compensation death benefits.

Wilder Gomez (hereinafter decedent) died on September 11, 2001 in the terrorist attacks upon the World Trade Center in New York City. When claimant applied for a workers’ compensation death benefit as decedent’s surviving spouse, «Elisa Gomez Escalante objected and likewise sought a death benefit as decedent’s surviving spouse. It appears that decedent married Escalante in his native Colombia in 1984 and, following his solitary emigration to the United States in 1991, decedent married claimant in New York in 1992.

After decedent’s work-related death was established, a Workers’ Compensation Law Judge (hereinafter WCLJ) concluded that claimant was decedent’s surviving spouse and awarded benefits. Upon Escalante’s application for further review, the Workers’ Compensation Board affirmed, prompting this appeal.

Initially, we agree with Escalante that the Board should have formally considered certain evidence which had not been presented to the WCLJ but which was submitted as part of her application for Board review. Escalante indicated to the WCLJ that she had been married to one Guillermo Rojas in 1981 but divorced him before her marriage to decedent. In support of this claim, Escalante submitted her Colombian “civil registry record of birth” which noted, among other facts, that she had obtained a “separación de cuerpos” from Rojas and thereafter “contracted civil matrimony” with decedent. Based upon the Spanish-to-English translation provided and representations made by Escalante’s counsel, the WCLJ apparently concluded that Escalante and Rojas had merely been legally separated (see generally Domestic Relations Law art 11) and that, as a result, her subsequent marriage to decedent was “questionable.” Therefore, according to the WCLJ, that proof failed to overcome the presumptive validity of decedent’s marriage to claimant (see Matter of Seidel v Crown Indus., 132 AD2d 729, 730 [1987]).

In her application for Board review, however, Escalante submitted a copy of the actual order of separación de cuerpos and an affidavit of an experienced Colombian attorney, Sulamita Kaim Torres.* Kaim Torres attested that the “birth registry” submitted by Escalante is a statutorily-derived, “unique and definitive” catalogue of facts relating to a person’s legal capacity *969and status. Moreover, Kaim Torres indicated that, under then-existing Colombian law, a separación de cuerpos was used to civilly dissolve a canonic or religious marriage—such as purportedly existed between Escalante and Rojas—and that the device served as the functional equivalent to a divorce in that context.

Assuming the Board’s unfamiliarity with the laws of Colombia, which are pertinent to the resolution of the instant dispute (see generally Matter of Masocco v Schaaf, 234 App Div 181 [1931]), and inasmuch as Escalante proffered a credible excuse for failing to present the evidence in question to the WCLJ (see Matter of Servidio v North Shore Univ. Hosp., 299 AD2d 685, 686 [2002]; 12 NYCRR 300.13 [g]; compare Matter of Cutting v Richard W. Nezelek, Inc., 293 AD2d 829, 830-831 [2002]), we conclude that the Board should have formally considered this additional proof. However, in light of the fact that the Board stated that the new evidence, even if considered, would not change its determination, we decline to remit the matter for additional factfinding (cf. Matter of Barrow v Loon Lake Hotel, 3 AD2d 783, 783-784 [1957]; Matter of McLaskey v City of New York, 277 App Div 1068, 1069 [1950]) and will instead review the record before us to ascertain whether the Board’s determination in favor of claimant is supported by substantial evidence (see generally 111 NY Jur 2d, Workers Compensation §§ 772, 773).

It has long been the rule that, where a marriage has been proven by the facts adduced, there exists a presumption that such marriage is valid (see Fisher v Fisher, 250 NY 313, 316-317 [1929]; Matter of Santorella v Massapequa School Dist. No. 23, 29 AD2d 1021 [1968], lv denied 22 NY2d 645 [1968]; Matter of Esmond v Lyons Bar & Grill, 26 AD2d 884, 884 [1966]). However, where, as here, two competing putative spouses have come forth with adequate proof establishing the existence of their respective matrimonies, the law further presumes that it is the second marriage which is valid and that the first marriage was dissolved by death, divorce or annulment (see Matter of Brown, 40 NY2d 938, 939 [1976]; Matter of Seidel v Crown Indus., supra at 730; 45 NY Jur 2d Domestic Relations § 73). Thus, it was Escalante’s burden to prove that the more recent marriage of decedent to claimant was invalid due to the continued existence of her own marriage to decedent (see Matter of Meehan, 150 App Div 681, 684 [1912]; see also Matter of Dugro, 261 App Div 236, 239-240 [1941], affd 287 NY 595 [1941]). Regardless of whether Escalante’s burden of persuasion *970is set at a clear and convincing standard or something less stringent (compare Matter of Seidel v Crown Indus., supra at 730, and Matter of Esmond v Lyons Bar & Grill, supra at 884-885, with Matter of Brown, supra at 939, and Steele v Richardson, 472 F2d 49, 52-53 [1972]; see generally Dolan v Celebrezze, 381 F2d 231 [1967]), it is our view that Escalante has sufficiently established the vitality of her marriage to decedent and thus rebutted the presumptive validity of claimant’s marriage to decedent (see Domestic Relations Law § 6; see also Fishman v Fishman, 48 AD2d 876, 877 [1975]).

As discussed above, Escalante produced documentary proof that a Columbian court issued a judgment of separación de cuerpos dissolving her marriage to Rojas, a fact further evidenced by a consistent notation on her Colombian civil registry form. This evidence, in conjunction with Colombian documentation of her subsequent marriage to decedent, sufficiently resolves any question concerning Escalante’s capacity to marry decedent. Moreover, Escalante affirmatively testified that she and decedent never divorced and that decedent continued to provide for her and their three children following his emigration (see Matter of Lancaster, 30 Misc 2d 7, 9 [1960]). Escalante’s assertion is further buttressed by the fact that decedent disavowed any prior marriages on the marriage certificate associated with his marriage to claimant (see Matter of Seidel v Crown Indus., supra at 731; see also Dolan v Celebrezze, supra at 232; Fishman v Fishman, supra at 877; Matter of Terry, 32 Misc 2d 470, 471 [1961]). Significantly, the notarized Colombian marriage registration documenting the union between Escalante and decedent, as well as Escalante’s civil registry, both of which were generated by Colombian authorities after decedent’s death, make no mention of any dissolution of the marriage. Again, Kaim Torres explained the significance of the absence of such notation on Escalante’s registry form and, further, there is record evidence indicating that no divorce action involving decedent or Escalante has been commenced anywhere within New York City (see Domestic Relations Law § 230 [1]; § 231; Matter of Seidel v Crown Indus., supra at 730; see also Metropolitan Life Ins. Co. v Jackson, 896 F Supp 318, 321-322 [1995]; cf. CPLR 4521). Accordingly, inasmuch as we find the presumptive validity of decedent’s marriage to claimant to be sufficiently rebutted by Escalante’s proof, and insofar as claimant has failed to adduce affirmative proof of the invalidity of Escalante’s marriage to decedent, we find the decision unsupported by substantial evidence (see Matter of Terry, supra at 471; compare Matter of Bihanskyj, 55 AD2d 836, 837 [1976]).

Mercure, Carpinello, Mugglin and Lahtinen, JJ., concur. *971Ordered that the decision is reversed, without costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.

OPINION OF THE COURT

Dillon, J.E

Sparse case law exists interpreting the recent enactment of Public Health Law § 4201 which, inter alia, prioritizes the persons authorized to control a decedent’s remains, and immunizes entities such as funeral homes, cemeteries, and crematories from civil liability for their good faith disposal of human remains upon the direction of a person enumerated in and prioritized by Public Health Law § 4201 (2) (a) (see Public Health Law § 4201 [7]). Here, the defendant Green-Wood Cemetery Mausoleums & Crematory (hereinafter Green-Wood) disposed of a decedent’s remains in accordance with the wishes of the decedent’s apparent widow, before learning that the decedent may have instead been married to someone else at the time of his death. We use this case as an occasion to discuss the application of Public Health Law § 4201.

I. Factual Background

The decedent, Joseph F. Mack, died on November 2, 2008, at the defendant New York Methodist Hospital (hereinafter the hospital) in Brooklyn. A Certificate of Death was issued in the normal course of the hospital’s business that, inter alia, identified the defendant Regina Brown as the decedent’s surviving spouse.

On November 4, 2008, Brown, using her married name of Regina Mack, signed an authorization for cremation, identifying herself as both the decedent’s surviving spouse, and executor of his estate. The authorization recited that the decedent left no written instructions for the disposal of his cremated body, and that no relative or other person expressed any objection to the cremation of the decedent’s body.

On November 5, 2008, the decedent’s body was released by the hospital to the defendant Robert Benjamin Funeral Home (hereinafter the funeral home). The following day, the funeral *136home delivered the decedent’s body to Green-Wood where, pursuant to the authorization, it was cremated.

On December 10, 2008, the plaintiffs commenced this action, alleging that the plaintiff Shirley Major Mack (hereinafter Mack), and not Brown, was the decedent’s surviving spouse, and that the decedent was a practicing Catholic with a burial plot provided by his union’s benefit fund. The additional named plaintiffs are the decedent’s issue. The plaintiffs alleged in their complaint that because Mack was the lawful wife of the decedent, the defendants had no authority to transfer his body from the hospital to the funeral home, and then to Green-Wood for cremation. The plaintiffs seek to recover damages for emotional distress resulting from the defendants’ allegedly willful, wanton, wrongful, negligent, reckless, and careless conduct.

The action prompted a flurry of motions seeking dispositive relief. Initially, the funeral home made a pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (3) and (7). The plaintiffs then cross-moved for summary judgment on the issue of liability pursuant to CPLR 3212. The hospital and Green-Wood, which had each answered the complaint, separately cross-moved for summary judgment dismissing the complaint insofar as asserted against each of them.1 The collective documentary evidence presented to the Supreme Court included the Certificate of Marriage Registration evidencing a marriage ceremony between the decedent and a “Shirley Majors”2 performed on July 14, 1980, in Brooklyn; a Certificate of Marriage evidencing a marriage ceremony between the decedent and Brown performed on November 5, 2007, in Brooklyn; the plaintiffs’ verified complaint, including the allegation that Shirley Major Mack was still the lawful spouse of the decedent at the time of his purported marriage to Brown; the decedent’s Certificate of Death; the Authorization for Cremation executed by Brown, with related documents; and the funeral home’s affirmation for cremation and disinterment.

In the order appealed from (24 Misc 3d 1242[A], 2009 NY Slip Op 51846[U] [2009]), the Supreme Court granted the hospital’s cross motion for summary judgment, and denied the cross mo*137tions of the plaintiffs, the funeral home, and Green-Wood. The Supreme Court denied the plaintiffs’ cross motion for summary judgment on the issue of liability on the ground that they failed to make a prima facie showing that Mack was the decedent’s surviving spouse or that the remaining defendants were negligent in the disposition of the decedent’s body. The Supreme Court denied the cross motion of Green-Wood for summary judgment dismissing the complaint insofar as asserted against it, and the separate cross motion of the funeral home pursuant to, inter alia, CPLR 3211 (a) to dismiss the complaint insofar as asserted against it, concluding, among other things, that neither the funeral home nor Green-Wood made a prima facie showing that they acted reasonably or in good faith in the handling of the decedent’s body. The Supreme Court nevertheless granted the hospital’s motion for summary judgment dismissing the complaint insofar as asserted against it, noting that the hospital was not liable by virtue of section 205.19 of the New York City Health Code (24 RCNY 205.19). In denying the cross motions of the plaintiffs, the funeral home, and Green-Wood, the Supreme Court nonetheless determined that the denials were with leave to renew all dispositive motions upon the completion of appropriate discovery on the issue of whether Mack or Brown was the decedent’s surviving spouse.

Green-Wood appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it. None of the other parties has appealed or cross-appealed. For the reasons discussed below, we reverse the order insofar as appealed from, grant Green-Wood’s cross motion for summary judgment dismissing the complaint insofar as asserted against it, and, upon searching the record, award summary judgment dismissing the complaint insofar as asserted against the funeral home as well.

II. Legal Analysis

The common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial or other disposition of the remains, and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body (see Shipley v City of New York, 80 AD3d 171 [2010]; Melfi v Mount Sinai Hosp., 64 AD3d 26, 31 [2009]). If a violation of the right of sepulcher is established, the next of kin *138may be compensated for the emotional suffering and mental anguish which they experienced as a result (see Shipley v City of New York, 80 AD3d 171 [2010]). In order to recover for such emotional injuries, it must be shown that the injuries were “the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged” (Stahl v William Necker, Inc., 184 App Div 85, 92 [1918]; see Gostkowski v Roman Catholic Church of Sacred Hearts of Jesus & Mary, 237 App Div 640, 642 [1933], affd 262 NY 320 [1933]).

Public Health Law § 4201, entitled “Disposition of Remains; responsibility therefor,” addresses two broad aspects of the care, disposal, transportation, burial, cremation, or embalming of the body of a deceased person — one regarding who shall have the right to control the disposition of a decedent’s remains, and the second regarding the liability of others in carrying out the directions of a person who represents that he or she is entitled to control the disposition of remains. Public Health Law § 4201 underwent significant revisions by amendments effective August 2, 2006, August 1, 2007, and October 25, 2009, respectively (see L 2005, ch 768, § 1; L 2006, ch 76, § 1; L 2007, ch 401, § 1; L 2009, ch 348, § 4). The most important revisions, as relevant here, were those effective August 2, 2006, from which very little case law has been generated.

First, the statute identifies, in descending priority, those persons who shall have the right to dispose of a decedent’s remains (see Public Health Law § 4201 [2] [a]). This hierarchy of individuals with the right to dispose of deceased persons’ remains was established in response to the tragic events of September 11, 2001 (see Mem of St of NY Dept of Health, Bill Jacket, L 2005, ch 768, at 9). Highest priority is given to the person designated in a written instrument (see Public Health Law § 4201 [2] [a] [i]) executed by the decedent prior to death, duly witnessed, and accepted by the designee in a form substantially similar to the template set forth in Public Health Law § 4201 (3) (see Maurer v Thibeault, 20 Misc 3d 631 [2008]). In the absence of a written instrument of designation, a decedent’s remains shall be disposed of in the manner directed by the following persons in descending order: the surviving spouse or surviving domestic partner, any of the decedent’s surviving children 18 years of age or older, either of the decedent’s parents, any of the decedent’s surviving siblings 18 years of age or older, a court-appointed guardian, a person 18 years of age or older entitled to share in the estate with the *139person closest in relationship having the highest priority, a duly-appointed fiduciary of the estate, a close friend or other relative of the decedent reasonably familiar with the decedent’s wishes, and a chief fiscal officer of a county or duly-appointed public administrator (see Public Health Law § 4201 [2] [a] [i]-[x]). If an enumerated individual is not reasonably available, is unwilling, or not competent to serve, and is not expected to become reasonably available, willing, or competent, then those persons of equal priority or, if there be none, those persons of the next succeeding priority shall have the right to control the disposition of the decedent’s remains (see Public Health Law § 4201 [2] [b]; Maurer v Thibeault, 20 Misc 3d at 631).

The second broad accomplishment of Public Health Law § 4201 is the legal protection against civil liability it confers upon a person either identifying the decedent, representing himself or herself as authorized to control the decedent’s remains, or disposing of the remains (see Public Health Law § 4201 [6] [a]-[c]; [7]). The statutory immunity from civil liability requires, as a condition precedent, that the persons acted “reasonably” and in “good faith” (Public Health Law § 4201 [7]).

Indeed, Public Health Law § 4201 (7) specifically provides, inter alia, that no cemetery organization, crematory, or funeral firm shall be liable “for actions taken reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains.” However, to be entitled to the protection of the statute, the cemetery organization, crematory, or funeral firm must also establish that it requested and received a written statement that the decedent’s agent is designated by a will or written instrument executed pursuant to the statute or, alternatively, that the designee has no knowledge of a will or written instrument directing the disposition of the decedent’s remains and that such person possesses statutory priority to control the decedent’s remains (see Public Health Law § 4201 [7]).

Here, Green-Wood made a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]) by submitting evidence demonstrating that it did not violate the plaintiffs’ alleged right of sepulcher, as its actions concerning the decedent’s cremation were taken reasonably and in good faith and in compliance with Public Health Law § 4201 (7). Green*140Wood’s crematory manager, Santos Rivera, stated in an affidavit that for a body to be cremated, a funeral home must obtain an authorization from the decedent’s family, and must also obtain permission for the cremation from the New York City Board of Health. The authorization for the cremation at issue here was executed by Brown on November 4, 2008. On its face, the authorization satisfies the requirements of Public Health Law § 4201 (7). It recites, inter alia, that Brown was the decedent’s surviving spouse and executor, that the decedent left no written instructions for the disposal of his cremated body, and that the decedent’s near relatives had been informed of the proposed cremation but had expressed no objection to it. Further, Santos stated in his affidavit that Brown had provided a Certificate of Marriage identifying her as the decedent’s spouse.3 Green-Wood had no reason to question Brown’s authority to act as the decedent’s surviving spouse, particularly as the relevant documents were facially sufficient.

The burden therefore shifted to the plaintiffs to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Shipley v City of New York, 80 AD3d 171 [2010]). In this regard, the plaintiffs argue that the marriage between the decedent and Brown was bigamous and void ah initio, thereby negating Brown’s authority to act in controlling the disposition of the decedent’s remains and, by extension, negating the authority of Green-Wood to perform the cremation.

Where, as here, two competing putative spouses come forward with proof of their respective marriages, there is a presumption that the second marriage is valid and that the prior marriage was dissolved by death, divorce, or annulment (see Matter of Brown, 40 NY2d 938, 939 [1976]; Matter of Gomez v Windows On World, 23 AD3d 967, 969 [2005]; Matter of Seidel v Crown Indus., 132 AD2d 729, 730 [1987]; Fishman v Fishman, 48 AD2d 876, 877 [1975]). When the presumption is successfully rebutted, the second marriage is void ab initio (see Domestic Relations Law § 6), and is not ratified or validated by a subsequent dissolution of the first marriage (see Sanchez v Sanchez, 79 AD2d 651 [1980]; Zeitlan v Zeitlan, 31 AD2d 955, 956 [1969], affd 26 NY2d 835 [1970]; see also Domestic Relation Law § 140 [a]). Accordingly, if, as the plaintiffs allege, the documented *141marriage of the decedent to Mack was still valid and ongoing at the time of the decedent’s later marriage to Brown, then Brown was not a surviving spouse authorized to control the disposition of the decedent’s remains as contemplated by Public Health Law § 4201 (2) (a) (ii).

As noted by the Supreme Court, Mack failed to tender any evidence that her 1980 marriage to the decedent had not been dissolved, which could have been addressed by a search of court records showing that no divorce action had been commenced and concluded (see Matter of Gomez v Windows On World, 23 AD3d at 970; Matter of Seidel v Crown Indus., 132 AD2d at 730; see also CPLR 4521). Moreover, the plaintiffs’ verified complaint alleging Mack’s status as surviving spouse, which ordinarily may be used as an affidavit (see CPLR 105 [u]), was verified by someone other than Mack, without any showing that such person had personal, nonhearsay knowledge of Mack’s marital status.

We need not determine, however, whether the marriage between the decedent and Brown was void. Green-Wood’s liability does not depend upon whether Brown’s marriage is void, but instead depends upon whether its own actions were taken “reasonably and in good faith” (Public Health Law § 4201 [7]) under the circumstances.

The clear intent of the statute is, inter alia, to shield cemeteries, crematories, and funeral firms from civil liability, so long as they reasonably rely in good faith upon the directions of persons with apparent authority to control the disposition of human remains, and obtain the documentation set forth in the statute. The Legislature, in enacting the 2005 version of Public Health Law § 4201, effective August 2, 2006, could not have intended for cemeteries, crematories, and funeral firms possessed of duly-executed authorizations, death certificates, and related documentation, such as Green-Wood was here, to cross-examine grieving widows or widowers, children, parents, siblings, or others to confirm the validity of the familial or personal status claimed under the Public Health Law, or to conduct independent investigations of such persons to protect themselves from potential liability. Naturally, if a cemetery, crematory, or funeral firm receives incomplete or suspicious documents or other information that would cast doubt upon an individual’s authority to control a decedent’s remains, further inquiry would be indicated. Here, however, the plaintiffs proffered no evidence in admissible form to suggest that Green-Wood had any reason not to rely *142upon Brown’s seemingly valid authorization and marriage certificate naming her as the decedent’s surviving spouse. To require Green-Wood to conduct further examination or investigation of Brown’s marital status would render meaningless the civil liability protections now afforded to it by Public Health Law § 4201. Consequently, the Supreme Court should have granted Green-Wood’s cross motion for summary judgment dismissing the complaint insofar as asserted against it.

III. Search of the Record

This Court has the authority to search the record and award summary judgment to a nonappealing party with respect to an issue that was the subject of the motions before the Supreme Court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]; Masi v Kir Munsey Park 020 LLC, 76 AD3d 514 [2010]; Piedra v Matos, 40 AD3d 610, 611-612 [2007]; Piltser v Donna Lee Mgt. Corp., 29 AD3d 973, 974 [2006]; Colon v Vargas, 27 AD3d 512, 514 [2006]; Beausejour v Naseer, 24 AD3d 404 [2005]; Capellan v King Wire Co., 19 AD3d 530 [2005]). The documentary basis for an award of summary judgment in favor of Green-Wood is the same as that argued by the funeral home in its motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it. Accordingly, upon searching the record, and in the interest of judicial economy, summary judgment must also be awarded in favor of the funeral home.

In light of the foregoing, the order is reversed insofar as appealed from, on the law, the cross motion of the defendant Green-Wood Cemetery Mausoleums & Crematory for summary judgment dismissing the complaint insofar as asserted against it is granted, and, upon searching the record, summary judgment is awarded to the defendant Robert Benjamin Funeral Home dismissing the complaint insofar as asserted against it, and the determination in the order denying that branch of the cross motion of that defendant which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it is vacated.

Angiolillo, Hall and Roman, JJ., concur.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion of the defendant GreenWood Cemetery Mausoleums & Crematory for summary judgment dismissing the complaint insofar as asserted against it is granted, and, upon searching the record, summary judgment is *143awarded to the defendant Robert Benjamin Funeral Home dismissing the complaint insofar as asserted against it, and the determination in the order denying that branch of the cross motion of that defendant which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it is vacated.

OPINION OF THE COURT

Prudenti, P.J.

Elder abuse, including the financial exploitation of elderly individuals who have become mentally incapacitated, is an “often well hidden problem” (Bailly, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 34A, Mental Hygiene Law § 81.14, 2010 Pocket Part, at 36), in part because the perpetrator of such conduct is in many cases a member of the *105victim’s family.1 With “the demographics promising] a greater percentage of older Americans in the next thirty years” (Matter of Astor, 13 Misc 3d 1203[A], 2006 NY Slip Op 51677[U], *5 [Sup Ct, NY County 2006]), this problem has begun to receive increasing attention.2 New York, however, does not yet have a statute specifically addressing a situation in which a person takes unfair advantage of an individual who clearly lacks the capacity to enter into a marriage by secretly marrying him or her for the purpose of obtaining a portion of his or her estate at the expense of his or her intended heirs. When a marriage to which one of the parties is incapable of consenting due to mental incapacity is not annulled until after the death of the nonconsenting party, a strict reading of the existing statutes requires that the other party be treated as a surviving spouse and afforded a right of election against the decedent’s estate, without regard to whether the marital relationship itself came about through an exercise of overreaching or undue influence by the surviving party. On this appeal, we have occasion to consider whether the surviving party may nonetheless be denied the right of election, based on the equitable principle that a court will not permit a party to profit from his or her own wrongdoing.

In early 2000 Howard Nolan Thomas was diagnosed with terminal prostate cancer and severe dementia, which was apparently attributable to Alzheimer’s disease. In February 2001 Nancy Thomas, Howard’s daughter and primary caretaker, went away on a one-week vacation, and left Howard, who was then 72 years old, in the care of the defendant Nidia Colon Thomas, who was then 58 years old. Nancy and two of Howard’s other children, the plaintiffs Christopher Campbell and Keith Thomas, *106later learned that, during Nancy’s vacation, Nidia had married Howard, and had subsequently transferred his assets into her name. Specifically, Nidia caused the ownership of an account at the defendant Citibank worth $150,000 to be changed from Howard individually to Nidia and Howard jointly, and caused herself to be named as the sole beneficiary of Howard’s account with the defendant New York City Teachers’ Retirement System (hereinafter TRS), valued at $147,000.3 Howard died in August 2001.

In November 2001 Christopher, Nancy,4 and Keith commenced this action against Nidia in the Supreme Court, seeking, intér alia, a judgment declaring Nidia’s marriage to Howard, as well as the changes to the bank account ownership and the TRS account beneficiaries, to be null and void. They contended that Howard lacked the legal capacity to enter into the marriage or execute the changes to his accounts due to his severe dementia, the effects of the medications he was taking at the time, and the progression of his cancer. The plaintiffs later amended their complaint to add causes of action alleging undue influence, conversion, and fraud.

Meanwhile, in November 2001, Christopher filed a petition for probate and letters of administration C.T.A.. in the Surrogate’s Court. In December 2002 Howard’s will, which was dated March 24, 1976, and provided that if his first wife predeceased him, his estate was to be divided equally among his children, was admitted to probate. In January 2003 Christopher was issued letters of administration C.T.A.. In May 2003 Nidia filed a right of election, which Christopher challenged. Since the Surrogate’s Court and the parties agreed that the determination of the right-of-election issue would depend upon the outcome of the dispute in the Supreme Court as to the validity of Nidia’s marriage to Howard, the Surrogate’s Court stayed the proceedings before it, pending the resolution of the action in the Supreme Court.

In the Supreme Court, the plaintiffs moved for summary judgment, in effect, on their causes of action seeking a judgment declaring the marriage and the changes to the bank account ownership and the TRS account beneficiaries to be null and void. They submitted, inter alia, affidavits from Christopher, *107Nancy, and Nancy’s son Peter, all of whom attested to the deterioration of Howard’s mental condition.

According to Nancy, during the last three years of Howard’s life, his dementia had caused him to become “paranoid, extremely forgetful, and prone to temper outbursts.” As she explained it, he “experienc[ed] great confusion as to who various individuals were,” and called almost all females “Nancy.” Nancy asserted that, when she took Howard out of the house, he required constant monitoring, since he tended to “wander off or just remain standing in one spot with a fixed stare.” As recounted by Nancy, during two different hospital stays, Howard could not feed himself, was “combative and aggressive,” had to be sedated and restrained, and “would pull out his IV tubes and catheter.” In her affidavit, Nancy explained that, late in 2000, Howard’s primary care physician advised her that “there was nothing more that could be done for [Howard,] and it was simply a matter of time until the [prostate cancer] took its course.” Nancy stated that she then conveyed this information to Nidia. According to Nancy, when Nancy found out about the marriage in March 2001 and confronted Howard about it, Howard had no awareness of the marriage, and adamantly denied that it had occurred, stating: “What are you talking about? . . . I’m not married . . . Are you crazy?” Nancy further asserted that Howard kept his will in a safe at Ms home, and had shown her the will in the fall of 2000, but that when Howard died, Nidia claimed that she was unable to locate the will, despite having looked in the safe. The will, however, was later produced by Nidia’s attorney.

Peter averred that, despite having a close and loving bond with his grandfather throughout his cMldhood, he began to notice bizarre behavior on Howard’s part in 1999. During his hospitalization, Howard became “belligerent and aggressive” and “threatened to kill [Peter],” and then failed to recall behaving in that manner when confronted with it later. Peter stated that, beginning in 2000, Howard “required constant supervision,” and “would soil himself,” requiring Nancy or Peter to clean him, “because he had lost the ability to understand that he needed to be clean.” As Peter recalled, on one occasion in 2000, Howard walked out of Nancy’s house, where he was living temporarily, and was found several blocks away in a confused state of mind. As further recounted by Peter, after Howard “ran away” on one or more additional occasions, Nancy decided that Howard should move back into his own home, where she would *108continue to care for him, with the assistance of others, including Nidia.

In addition to describing Howard’s diminished mental abilities, Christopher alleged in his affidavit that, approximately one month prior to Howard’s death, Nidia sold a portion of a parcel of land owned by Howard for the sum of $90,000, and deposited the proceeds of the sale into the now-joint Citibank account. As of the date of Christopher’s affidavit, the balance of the Citibank account was 54 cents.

The plaintiffs also submitted medical records as well as affidavits, one from Howard’s primary care physician, who treated him for the last 13 years of his life, and one from a neurologist. Both physicians, who examined Howard in the fall of 2000, confirmed that he suffered from “severe dementia” and asserted that his condition made it inadvisable for him to be left unsupervised, “even for a minute.” Both physicians recommended that Howard be placed in a nursing home, and they both would have supported an application for the appointment of a legal guardian for Howard. As explained by the physicians, and corroborated by the medical records, Howard was taking numerous prescribed medications, including psychotropic medication. As one of the physicians described it, Howard “was confused and had lost the mental capacity to provide for himself or understand his legal and financial affairs,” and his mental condition continued to deteriorate after October 2000.

In addition, the plaintiffs submitted Nidia’s affidavit in opposition to their prior motion for a temporary restraining order, in which Nidia made the following statement:

“The plaintiffs claim that I tricked [Howard] into transferring the TRS Account into my name. The fact is that I did not know that he had transferred the account until three months after [his] death. He had taken the steps to make the transfer without my knowledge or my help.”

In opposition to the plaintiffs’ motion, and in support of her cross motion for summary judgment, in effect, declaring that the marriage and transfers of the accounts are valid, Nidia submitted her own affidavit, in which she averred that she and Howard met in 1975 after Howard’s first wife died. Nidia explained that Howard was a school principal, while she was a school safety officer. According to Nidia, she and Howard had a 25-year relationship, during which Howard asked her to marry *109him on four occasions: in 1979, in 1980, in 1981, and in 2001. Nidia claimed that she accepted the last proposal, even though she knew that Howard’s children were against it. According to Nidia, “while [Howard] did have moments of forgetfulness, he did seem to have the requisite mental capacity to enter into the marriage vows.” Nidia’s relationship with Howard was not exclusive; she admitted during her deposition that she was aware during Howard’s lifetime that he was dating other women. According to Christopher’s affidavit, Howard jointly owned property with one such woman.

Nidia also submitted affidavits from the pastor who performed the wedding ceremony in a church and the two witnesses to the marriage, each of whom asserted that Howard “knew that he was marrying Nidia Colon.” The pastor, however, testified at a deposition that, had he known about Howard’s medical condition, as described by the physicians in their affidavits submitted in support of the plaintiffs’ summary judgment motion, he would not have performed the wedding ceremony.

In their reply papers, the plaintiffs referred to Nidia’s assertion in her prior affidavit that Howard changed the beneficiary of his retirement account without her knowledge or assistance—an assertion which Nidia repeated in her affidavit opposing the plaintiffs’ motion for summary judgment. The plaintiffs pointed out that, in deposition testimony which they had also submitted in support of their motion, Nidia had admitted that the handwriting on the change-of-beneficiary form was hers, thus exposing the representations made in her affidavits as untruthful.

In an order dated October 1, 2004 the Supreme Court denied both the plaintiffs’ motion and Nidia’s cross motion, concluding that there were triable issues of fact as to whether Howard was capable of consenting to the marriage. On the plaintiffs’ appeal, this Court concluded that the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that Howard “lacked the capacity to understand his actions before his marriage, and that his mental state only diminished thereafter” (Campbell v Thomas, 36 AD3d 576, 576 [2007]), and that the evidence submitted by Nidia in opposition failed to raise a triable issue of fact. Accordingly, this Court reversed the Supreme Court’s order insofar as appealed from, granted the plaintiffs’ motion for summary judgment, and remitted the matter to the Supreme Court “for the entry of a judgment declaring null and void (1) the marriage between the *110defendant Nidia Colon Thomas and the decedent Howard Nolan Thomas, (2) a change in beneficiary in Howard Nolan Thomas’ Teacher’s Retirement System of the City of New York account, and (3) a change in the ownership of Howard Nolan Thomas’ Citibank accounts” (id.).

Subsequently, the Supreme Court issued an order, dated June 21, 2007, in which it made certain “findings consistent with the ruling of the Appellate Division.” The Supreme Court found that Nidia had admitted that “she had the ‘beneficial use’ of, at a minimum, $101,997.00 from [Howard’s] Citibank account,” and, in effect, directed the entry of a judgment in favor of Howard’s estate and against Nidia in the amount of $101,997. The order also, in effect, directed the entry of a judgment declaring that Nidia “shall have no legal rights and can claim no legal interest as a spouse of [Howard].” In addition, the order provided, among other things, that Nidia was to provide a complete accounting to the plaintiffs of all the property, money, and interests she obtained from Howard; that the TRS was to make Keith, Peter, and Christopher the sole beneficiaries of Howard’s retirement account; that Citibank was to provide a complete accounting to Howard’s estate of all of certain bank accounts in which Howard had an interest, and those accounts would be placed in the sole name of Howard’s estate; and that Howard’s estate was to be “given ownership of all property in the name of Howard N. Thomas as of October 1, 2000,” and the estate was to distribute those funds to Keith, Peter, and Christopher in one-third shares.

Subsequently, Nidia moved in the Supreme Court to modify or vacate the order dated June 21, 2007. In an order dated January 31, 2008 the Supreme Court denied Nidia’s motion, and Nidia now appeals.

On appeal, Nidia contends that the Supreme Court’s order dated June 21, 2007 improperly directed the entry of a judgment declaring that she “shall have no legal rights and can claim no legal interest as a spouse of Howard N. Thomas.” Nidia argues that, under the applicable statutes, she is considered a surviving spouse even if the marriage is subsequently annulled or voided, and is, therefore, entitled to an elective share of Howard’s estate.

This Court concluded that the marriage between Nidia and Howard was null and void on the ground that Howard was “incapable of consenting to a marriage for want of understanding” (Domestic Relations Law § 7 [2]). The Domestic Relations *111Law deems such a marriage to be voidable, meaning that the marriage “is void from the time its nullity is declared by a court of competent jurisdiction” (Domestic Relations Law § 7). This status is distinct from that of certain other marriages—incestuous marriages (Domestic Relations Law § 5) and bigamous marriages (Domestic Relations Law § 6)—which the law deems to be absolutely void. The distinction, however, is not that void marriages are nonexistent from the beginning, while voidable marriages are valid until declared invalid. That is the distinction between annulment and divorce. Rather, as a general rule, both void and voidable marriages are void ab initio, the difference between them being that the parties to a void marriage (and everyone else) are free to treat the marriage as a nullity without the involvement of a court, while a voidable marriage may be treated as a nullity only if a court has made the requisite pronouncement (see Sleicher v Sleicher, 251 NY 366, 369 [1929] [“A marriage procured by fraud is voidable, not void. Even so, annulment when decreed, puts an end to it from the beginning. It is not dissolved as upon divorce. It is effaced as if it had never been” (citations omitted)]; Matter of Moncrief, 235 NY 390 [1923]; Jones v Brinsmade, 183 NY 258 [1905]; Matter of Skagen v New York City Employees’ Retirement Sys., 108 Misc 2d 448, 450 [1981]; Metcalfe v Cutler, 52 NYS2d 71, 73 [1944], affd 269 App Div 655 [1945]).

In Matter of Moncrief, where a child’s parents were married on the day after she was born, but the marriage was later annulled on the ground of duress, the Court of Appeals held that, despite a statute providing that a child whose parents are later married was deemed legitimate, the child could not be considered legitimate because her parents’ marriage was a nullity. The Court explained that, at common law, whether a marriage was void or voidable, the courts were empowered to declare it void, and “[s]uch a decree rendered the marriage void from the beginning” (235 NY at 393). Although a statute enacted in 1830 provided that certain marriages were absolutely void and certain other marriages were void “from the time their nullity shall be declared by a court .of competent authority,” the Court concluded that the Legislature did not intend to alter the well-established rule that, when a Court annulled a voidable marriage, the marriage was void ab initio {id. at 394 [internal quotation marks omitted]). The Court reasoned that

“[c]onsent is essential to the contract. No consent, no marriage. The court finds no consent. It, there*112fore, nullifies the marriage. It declares there was no marriage. From that moment the marriage is void. As we have seen a void marriage is void for all purposes from its inception. All that was meant was that no longer might husband and wife upon their own responsibility determine that they were free from the contract. Such a determination required the concurrence of the court. Only when that was obtained did the marriage become void. But when it was obtained the marriage was nullified and all the consequences of a void marriage then followed” (id.\ see Jones v Brinsmade, 183 NY 258, 262 [1905] [“when a voidable marriage has been set aside by a decree of nullity, the parties are regarded as having never been married”]; Matter of Skagen v New York City Employees’ Retirement Sys., 108 Misc 2d at 450 [Domestic Relations Law § 7 “would be a superfluous statute if its sole meaning were to establish that the marriage is void only from the time of a declaration by the court to that effect. The same is true of the effect of any court decree. . . . Once annulled[,] ... [a] marriage is deemed erased as if it never took place. In that respect it is very much unlike a divorce, which serves to legally terminate a marriage deemed to have validly existed”]).

In Sleicher v Sleicher (251 NY 366, 368 [1929]), the Court of Appeals applied the principle set forth in Matter of Moncrief, and concluded that, when a wife’s second marriage was annulled on the ground of fraud, her right to alimony from her first husband, which, pursuant to their separation agreement, was to continue “so long as she remains unmarried,” was revived. Taken to its logical conclusion, the rule applied by the Court would have required the first husband to make all alimony payments, including retroactive payments for the period during which the wife apparently was married to the second husband, since the second marriage, once annulled, had no legal existence and thus could not terminate the first husband’s alimony obligation. The Court, however, limited its holding to the period following the annulment of the second marriage, reasoning that, although the first husband “must now comply with the mandate of the judgment of divorce and provide for his former wife as for one who has not remarried,” this did not mean “that he must provide for her during the years when the voidable remarriage was in force and unavoided” (id. at 369).

*113The Court of Appeals later confronted the same scenario in Gaines v Jacobsen (308 NY 218 [1954]). In that case, the Court held that the annulment of the second marriage did not revive the first husband’s support obligation, noting that, at the time of the Sleicher decision, a wife was not entitled to alimony upon the annulment of a marriage, which would have left the wife in that case without any means of support if the first husband’s alimony obligation had not been revived. The Gaines Court observed that the Legislature had since enacted Civil Practice Act § 1140-a (now Domestic Relations Law § 236), which allowed for spousal maintenance upon the annulment of a marriage, and concluded that the new enactment “alters the situation before us so materially that it calls for a different result in this case” (308 NY at 223). The Gaines decision then proceeded to question the “doctrinal basis” of Sleicher, in light of the enactment of Civil Practice Act § 1140-a. The Court explained that

“[t]he fiction that annulment effaces a marriage ‘as if it had never been’ is sometimes given effect and sometimes ignored, as the ‘purposes of justice’ are deemed to require. The courts and the legislature have, accordingly, attached to annulled marriages, for certain purposes, the same significance that a valid marriage would have, when a more desirable result is thereby achieved. Thus, although a distinction is sometimes made between void and voidable marriages, the annulled marriage has been given sufficient vitality to constitute valid consideration for a gift in contemplation of the marriage; to make a remarriage by one of the parties during its continuance bigamous; and, by statute in this state, to legitimatize any children born of the union.

“By writing section 1140-a into the law, the legislature has chosen, without regard to whether the marriage is void or voidable, to attach to annulled marriages sufficient validity and significance to support an award of alimony, in other words, to serve, the same as any valid marriage would, as the foundation of a continuing duty to support the wife after the marriage is terminated” (308 NY at 225 [citations omitted]).

The Court of Appeals subsequently held that the Sleicher rule should no longer be applied to revive a support obligation upon *114the annulment of a second marriage in any case, even where the remarried spouse was not statutorily entitled to support from his or her second spouse (see Denberg v Frischman, 17 NY2d 778 [1966], affg 24 AD2d 100 [1965]). Yet, despite this exception to the general rule that an annulled marriage is treated as void ab initio, and the other exceptions described in Gaines, it does not appear that the Court of Appeals has overruled Matter of Moncrief or the earlier decisions on which it relied.

We turn, then, to the question of whether this Court’s determination that Nidia’s marriage to Howard was null and void renders the marriage void ab initio for purposes of the right of election Nidia has asserted. The Domestic Relations Law provides that

“[a]n action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage” (Domestic Relations Law § 140 [c]).

The most readily apparent interest a relative of a deceased spouse is likely to have in avoiding a marriage is preventing the living spouse from sharing in the deceased spouse’s estate.5 Yet, the Estates, Powers and Trusts Law provides that a husband or wife is considered a “surviving spouse” with a right of election against the deceased spouse’s estate under EPTL 5-1.1-A

“unless it is established satisfactorily to the court having jurisdiction of the action or proceeding that: *115(1) A final decree or judgment of divorce, of annulment or declaring the nullity of a marriage . . . was in effect when the deceased spouse died [or that] (2) The marriage was void as incestuous under section five of the domestic relations law, bigamous under section six thereof, or a prohibited remarriage under section eight thereof [or that certain other circumstances, not relevant in this case, existed]” (EPTL 5-1.2 [a]).

This provision appears to render the right of family members to obtain a post-death annulment largely illusory. This effect was illustrated in Bennett v Thomas (38 AD2d 682 [1971]), where, although the Appellate Division affirmed the denial of a motion to dismiss a complaint seeking to annul the marriage of the plaintiffs’ deceased mother, the court cited EPTL 5-1.2 (a) and pointed out-that “the outcome of this postdeath annulment action will not affect the defendant’s right of election as a surviving spouse. His right to elect against his wife’s estate became fixed and unalterable upon the wife’s death” (38 AD2d at 682-683). Notwithstanding this potentially incongruous result, the language of the statute is inescapably plain. As applied in cases involving post-death annulments, EPTL 5-1.2 (a) appears to be among those statutory provisions in which, as the Court of Appeals discussed in Gaines v Jacobsen, the Legislature has “attached to annulled marriages, for certain purposes, the same significance that a valid marriage would have” (308 NY at 225).

In this case, the marriage was not declared a nullity until this Court issued its decision and order in January 2007, more than five years after Howard’s death. Thus, under EPTL 5-1.2, Nidia technically had a legal right to an elective share as a surviving spouse.

That determination, however, does not end this Court’s inquiry. The literal terms of a statute should not be rigidly applied if to do so “ ‘would be to ordain the statute as an instrument for the protection of fraud’ ” (Citizens Util. Co. v American Locomotive Co., 11 NY2d 409, 420 [1962], quoting Southern Cal. Enters, v D.N. & E. Walter & Co., 78 Cal App 2d 750, 752, 178 P2d 785, 786 [1947]). Mechanically applying EPTL 5-1.2 to honor the right of election of a surviving spouse whose very status as a spouse was procured through overreaching or undue influence would “seemingly invite[ ] a plethora of surreptitious ‘deathbed marriages’ as a means of obtaining one third of a *116decedent’s estate immune from challenge” (Matter of Berk, 20 Misc 3d 691, 697 [2008]).

The Supreme Court, being a court of equity as well as law (see NY Const, art VI, § 7 [a]; McCain v Koch, 70 NY2d 109, 116 [1987]), was empowered to grant relief consistent with the equitable principle that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime” (Riggs v Palmer, 115 NY 506, 511 [1889]; see Matter of Covert, 97 NY2d 68, 74 [2001]; In re Lonergan’s Estate, 63 NYS2d 307 [1946]; see also Barker v Kallash, 63 NY2d 19, 25 [1984]; Carr v Hoy, 2 NY2d 185, 187 [1957]). Pursuant to this doctrine, which has been applied in both civil and criminal cases, the wrongdoer is deemed to have forfeited the benefit that would flow from his or her wrongdoing (see Giles v California, 554 US —, —, 128 S Ct 2678, 2683 [2008] [discussing common-law doctrine of “forfeiture by wrongdoing,” under which a criminal defendant forfeits the right to confront witnesses by engaging in conduct designed to prevent a witness from testifying]; Diaz v United States, 223 US 442, 458 [1912], quoting Falk v United States, 15 App DC 446, 460 [1899] [“ ‘The question is one of broad public policy. . . . Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong’ ”]; New York Mut. Life Ins. Co. v Armstrong, 117 US 591, 600 [1886] [person who purchased life insurance policy “forfeited all rights under it when, to secure its immediate payment, he murdered the assured” (quoted in Riggs v Palmer, 115 NY at 512)]; People v Sanchez, 65 NY2d 436 [1985] [criminal defendant who deliberately leaves courtroom during trial forfeits the right to be present at trial]; Matter of Coty, Inc. v Anchor Constr., Inc., 2003 NY Slip Op 50013[U], *27 [Sup Ct, NY County 2003], affd 7 AD3d 438 [2004] [“for example, if one party destroys evidence, wrongfully resists disclosure, intentionally absents itself, or prevents a witness from testifying, it cannot profit from its own misconduct”]).

This “fundamental equitable principle” (Simon & Schuster, Inc. v Members of N.Y. State Crime Victims Bd., 502 US 105, 119 [1991], quoting Matter of Children of Bedford v Petromelis, 77 NY2d 713, 727 [1991]) has been invoked to deny an individual who murders a family member the right to inherit from the victim of the murder (see Riggs v Palmer, 115 NY at 513), the right to succeed to the survivorship interest he would have otherwise had as a joint tenant of the victim (see Matter of Co*117vert, 97 NY2d at 76), and the right to an elective share of the victim’s estate (see In re Lonergan’s Estate, 63 NYS2d 307, 308 [1946]). The rule, however, is not limited to murderers, and has been employed under a variety of circumstances, for example, to prevent a party from enforcing an illegal contract (see Stone v Freeman, 298 NY 268 [1948]), to preclude recoveiy in tort by a plaintiff whose injuries directly resulted from his or her serious violation of the law (see Manning v Brown, 91 NY2d 116 [1997]), to deny a wife’s request to redate a judgment of divorce terminating her husband’s prior marriage where the wife knew that her own marriage to the husband was bigamous (see Martin v Martin, 205 AD2d 506 [1994]), and to find that a landowner’s commencement of construction of a shopping center did not create a vested right to the issuance of building permits, where the landowner knowingly performed the work in violation of a restrictive covenant (see Matter of G. M. Land Corp. v Foley, 20 AD2d 645 [1964]).

In determining whether Nidia engaged in wrongdoing from which she now seeks to profit by taking a share of Howard’s estate, we begin with the decision on the prior appeal in this matter, in which this Court determined that Howard lacked the mental capacity to enter into the marriage. The record that was before the Supreme Court in this matter establishes that Nidia was aware of this lack of capacity. As Nidia well knew, Howard’s dementia had advanced to the point that he often had difficulty recognizing family members, had lost the ability to understand his legal and financial affairs or even to attend to his own basic hygiene, and could not be left alone for any period of time. Nidia had also been informed that, due to the progression of his prostate cancer, Howard was not expected to live much longer. With knowledge of these facts, Nidia waited until Nancy, Howard’s primary caretaker, left for a vacation, and then married Howard, without informing Nancy or any other member of Howard’s family until after the fact. Nidia not only quickly arranged to have her name added to Howard’s bank account, but also secretly made herself the sole beneficiary on Howard’s retirement account. Nidia then attempted to cover up the latter fact by falsely stating in two affidavits that Howard made her the sole beneficiary without her knowledge or assistance, when, in fact, she herself had filled out the change-of-beneficiary form.

Taken together, the foregoing facts provide ample support for an inference that Nidia was aware of Howard’s lack of capacity to consent to the marriage, and took unfair advantage of his *118condition for her own pecuniary gain, at the expense of Howard’s intended heirs. Thus, Nidia procured the marriage itself through overreaching and undue influence. Nidia should not be permitted to benefit from that conduct any more than should a person who engages in overreaching and undue influence by having himself or herself named in the will of a person he or she knows to be mentally incapacitated (see Riggs v Palmer, 115 NY at 512; see generally Matter of Walther, 6 NY2d 49 [1959]; Matter of Burke, 82 AD2d 260 [1981]). By her conduct, Nidia has forfeited any rights that would flow from the marital relationship, including the statutory right she would otherwise have to an elective share of Howard’s estate.

We recognize that Nidia’s conduct was not as egregious as, for example, the conduct of the defendant in Riggs v Palmer (115 NY 506, 509 [1889]), who, having been named in his grandfather’s will, murdered his grandfather in an effort to obtain “speedy enjoyment” of his inheritance and to prevent the grandfather from excluding him from the will (see also In re Lonergan’s Estate, 63 NYS2d 307 [1946] [surviving spouse who had murdered his wife had no right to spousal election against her estate]). Yet, while the wrongdoers in Riggs and Lonergan were already in a position to benefit from their victims’ estates, in the present case, it was the wrongful conduct itself that put Nidia in a position to obtain benefits that were available by virtue of being Howard’s spouse. Thus, while the measures taken by Nidia were certainly not as extreme as those taken in Riggs and Lonergan, the causal link between the wrongdoing and the benefits she sought was actually more direct in this case (cf. McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 471 [1960] [for recovery to be denied on the basis of wrongdoing, “[t]here must at least be a direct connection between the illegal transaction and the obligation sued upon”]). Moreover, the facts that Nidia had known Howard for 25 years, had a close relationship with him, and had been legitimately named as one of the beneficiaries of his retirement account do not diminish Nidia’s culpability. If anything, those facts—which Nidia has in common with a large percentage of perpetrators of elder abuse (see supra footnote 1)—indicate that Nidia was in a position of trust, which she abused, and that she could not plausibly deny awareness of Howard’s mental incapacity.

Thus, Nidia wrongfully altered Howard’s testamentary plan in her favor, just as surely as if she had exploited his incapacity to induce him to add her to his will and bequeath her one third *119of his estate. Under such circumstances, equity will intervene to prevent the unjust enrichment of the wrongdoer.

We find this result to be compelled not only by the need to protect vulnerable incapacitated individuals and their rightful heirs from overreaching and undue influence, but to protect the integrity of the courts themselves. It is “an old, old principle” that a court, “even in the absence of express statutory warrant,” must not “ ‘allow itself to be made the instrument of wrong, no less on account of its detestation of every thing conducive to wrong than on account of that regard which it should entertain for its own character and dignity’ ” (Matter of Hogan v Supreme Ct. of State of N.Y., 295 NY 92, 96 [1946], quoting Baldwin v City of New York, 42 Barb 549, 550 [1864], affd 45 Barb 359 [1865]; cf. Carr v Hoy, 2 NY2d at 187, quoting Stone v Freeman, 298 NY at 271 [“a party to an illegal contract cannot ask a court of law to help him carry out his illegal object” because “ ‘no court should be required to serve as paymaster of the wages of crime’ ”]). In this case, the record reveals that Nidia secretly entered into a marriage with a person whom she knew to be incapable of consenting to marriage, with the intent to collect, as a surviving spouse, a portion of his estate. A crucial step in the completion of that plan was Nidia’s assertion of a right of election in the Surrogate’s Court. Of course, the powers of the judiciary are not unlimited, and courts are not capable of righting or preventing every wrong. The courts, however, can, and must, prevent themselves and their processes from being affirmatively employed in the execution of a wrongful scheme.

The equitable doctrine pursuant to which we find that Nidia has forfeited her right of election does not displace legislative authority, but complements it. Our decision does not reflect an effort to avoid a result intended by the Legislature. Rather, for the following reasons, it is clear to us that the Legislature did not contemplate the circumstances presented by this case when it enacted EPTL 5-1.2.

For purposes of determining a surviving spouse’s right to an elective share, the Legislature has, in general, chosen to treat marriages annulled after the death of one of the spouses as being valid until the annulment, rather than void ah initio. Thus, where there has been no pre-death annulment, EPTL 5-1.2 does not, by its terms, disqualify the surviving spouse from asserting a right of election where the deceased spouse’s consent was lacking due to, e.g., fraud or want of understanding. In most cases, the statute will produce an acceptable result. In some *120cases where the deceased spouse lacked the capacity to marry, the surviving spouse may have been unaware of the incapacity, and thus innocent of any wrongdoing, and it is, therefore, reasonable to permit the surviving spouse to elect against the decedent’s estate. In cases of fraud or temporary incapacity, even where the surviving spouse has engaged in wrongdoing, it is possible for the deceased spouse to ratify, or condone, the marriage at any time before his or her death (see Domestic Relations Law § 140 [e] [“a marriage shall not be annulled ... on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud”]; Domestic Relations Law § 140 [c] [action to annul marriage on mental illness grounds may be “maintained by the mentally ill person at any time after restoration to a sound mind; but in that case, the marriage should not be annulled if it appears that the parties freely cohabited as husband and wife after the mentally ill person was restored to a sound mind”]; Aghnides v Aghnides, 308 NY 530, 533 [1955]; Avnery v Avnery, 50 AD2d 806, 808 [1975]). In such cases, the surviving spouse may be deemed worthy of an elective share despite his or her initial wrongdoing.

In this case, however, the marriage was wrongfully procured by Nidia, and since, as Nidia had every reason to know, Howard’s mental condition would become progressively worse until his death, this was not a situation in which the marriage, though initially nonconsensual, could be ratified later by the nonconsenting spouse. Indeed, Howard’s condition was such that he not only lacked any awareness that the marriage had occurred, but vehemently denied that it had when he was confronted with it. Nidia’s conduct in this case—marrying Howard so close to the end of his life, with knowledge that Howard was mentally incapacitated and would never regain his mental capacity, and concealing the marriage from Howard’s family— was unmistakably designed to preserve the nonconsensual marriage until Howard’s death, thus ensuring that Nidia would be regarded by the law as a surviving spouse.

When it enacted EPTL 5-1.2 in 1966, the Legislature was focused on preventing an individual from disinheriting his or her spouse (see 3d Rep of Temp St Commn on Estates, 1964 NY Legis Doc No. 19, at 23; Jessica Baquet, Notes, Aiding Avarice: The Inequitable Results of Limited Grounds for Spousal Disqualification Under EPTL § 5-1.2, 23 St. John’s J Legal *121Comment 843, 847-857 [2008]). We are confident that the Legislature did not intend the statute to provide refuge for a person seeking to profit by means of a nonconsensual marriage. And our holding that the statutory right of election may be forfeited is limited to just such a situation, that is, where an individual, knowing that a mentally incapacitated person is incapable of consenting to a marriage, deliberate^ takes unfair advantage of the incapacity by marrying that person for the purpose of obtaining pecuniary benefits that become available by virtue of being that person’s spouse, at the expense of that person’s intended beneficiaries.

Although we exercise our equitable power to award appropriate relief in this case, we nonetheless call upon the Legislature to reexamine the relevant provisions of the EPTL and the Domestic Relations Law and to consider whether it might be appropriate to make revisions that would prevent unscrupulous individuals from wielding the law as a tool to exploit the elderly and infirm and unjustly enrich themselves at the expense of such victims and their rightful heirs.

For the foregoing reasons, we conclude that the Supreme Court, in its order dated June 21, 2007, properly directed the entry of a judgment declaring that Nidia “shall have no legal rights and can claim no legal interest as a spouse of [Howard]” (see Matter of Kaminester v Foldes, 51 AD3d 528, 529 [2008], quoting People ex rel. Doe v Beaudoin, 102 AD2d 359, 363 [1984] [“Supreme Court and Surrogate’s Court have concurrent jurisdiction in matters involving a decedent’s estate,” and “a Supreme Court Justice is vested with inherent plenary power (NY Const, art VI, § 7) to fashion any remedy necessary for the proper administration of justice”]; Gaentner v Benkovich, 18 AD3d 424, 427-428 [2005]). Therefore, in the order appealed from, the Supreme Court properly denied that branch of Nidia’s motion which was to modify or vacate that provision of the order dated June 21, 2007.

The Supreme Court also properly denied that branch of Nidia’s motion which was to modify or vacate the provision of the order dated June 21, 2007, which directed that Howard’s estate was to be “given ownership of all property in the name of Howard N. Thomas as of October 1, 2000,” and that the estate was to distribute those funds to Keith, Peter, and Christopher in one third shares. In light of Nidia’s lack of any legal right or interest as a spouse of Howard, she does not have standing to challenge the Supreme Court’s directive regarding the distribution of Howard’s estate.

*122There is one aspect of the order dated Jun,e 21, 2007 that requires modification. That order directed the TRS to make Keith, Peter, and Christopher the only beneficiaries of Howard’s retirement account. Prior to Nidia’s marriage to Howard, however, Nidia had been one of the beneficiaries of that account. Thus, the share in the account that Nidia already possessed was not a product of her wrongful conduct (see Matter of Covert, 97 NY2d at 74 [“we have never applied the doctrine (that one shall not profit from his or her own wrongdoing) to cause a wrongdoer’s forfeiture of a vested property interest”]). Accordingly, rather than awarding the entire proceeds of the TRS account to Keith, Peter, and Christopher, the parties should be restored to the status quo ante by means of a direction to the TRS to restore the designation of the beneficiaries of the account to that which existed prior to the change made thereto in 2001. We note that any funds paid to or held by Nidia are subject to any valid claims by, and any enforcement proceedings brought by, Howard’s estate.

Nidia’s remaining contentions are without merit.

Accordingly, the order dated January 31, 2008 is modified, on the law, by deleting the provision thereof denying that branch of Nidia’s motion which was to vacate the provision of the order dated June 21, 2007, directing the New York City Teachers’ Retirement System to “recognize and make Keith Howard Thomas, Peter Thomas, and Christopher L. Campbell the sole beneficiaries under Howard N. Thomas’ TRS Pension Number R-7817910 (or any other account of Howard N. Thomas) with each beneficiary receiving a Vs share,” and substituting therefor a provision granting that branch of the motion and directing the New York City Teachers’ Retirement System to restore the designation of the beneficiaries of Howard N. Thomas’s Teachers’ Retirement System of the City of New York account to that which existed prior to the change made thereto in 2001. We otherwise affirm the order.

Miller, Chambers and Román, JJ., concur.

Ordered that the order dated January 31, 2008 is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Nidia Colon Thomas which was to vacate the provision of the order dated June 21, 2007 directing the New York City Teachers’ Retirement System to “recognize and make Keith Howard Thomas, Peter Thomas, and Christopher L. Campbell the sole beneficiaries under Howard N. Thomas’ TRS Pension Number R-7817910 (or any other ac*123count of Howard N. Thomas) with each beneficiary receiving a Vs share,” and substituting therefor a provision granting that branch of the motion and directing the New York City Teachers’ Retirement System to restore the designation of the beneficiaries of Howard N. Thomas’s Teachers’ Retirement System of the City of New York account to that which existed prior to the change made thereto in 2001; as so modified, the order is affirmed, with costs to the respondent Christopher Campbell.