# Smith v. Fair Employment & Housing Commission

> California Supreme Court · April 9, 1996 · 12 Cal. 4th 1143

URL: https://www.frixlaw.com/law-library/cases/1179735

## Case

- **Full name:** EVELYN SMITH, Petitioner, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Respondent; KENNETH C. PHILLIPS Et Al., Real Parties in Interest
- **Court:** California Supreme Court
- **Decided:** April 9, 1996
- **Citations:** 12 Cal. 4th 1143; 51 Cal. Rptr. 2d 700; 96 Daily Journal DAR 4067; 913 P.2d 909; 96 Cal. Daily Op. Serv. 2465; 1996 Cal. LEXIS 1389
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Werdegar, Mosk, Kennard, Baxter
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1179735

## Opinion text

12 Cal.4th 1143 (1996)
913 P.2d 909
51 Cal. Rptr.2d 700
EVELYN SMITH, Petitioner,
v.
FAIR EMPLOYMENT AND HOUSING COMMISSION, Respondent; KENNETH C. PHILLIPS et al., Real Parties in Interest.
Docket No. S040653.
Supreme Court of California.
April 9, 1996.
*1149 COUNSEL
Jordan W. Lorence, Cimron Campbell, Jane E. Hadro, Wendell R. Bird, Mark N. Troobnick and Jay Alan Sekulow for Petitioner.
Loy Watkins, John G. Tulio, Alan J. Reinach, Boothby & Yingst, Lee Boothby, Oliver Thomas, Marc D. Stern, Jaffe, Trutanich, Scatena & Blum, Fred Blum, Proskauer, Rose, Getz & Mendelsohn, Jeffrey A. Berman, *1150 Steven G. Drapkin and Lee W. Rierson as Amici Curiae on behalf of Petitioner.
John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Andrea Sheridan Ordin, Chief Assistant Attorney General, Carole R. Kornblum, Assistant Attorney General, Manuel M. Medeiros, Louis Verdugo, Jr., Kathleen W. Mikkelson, Deputy Attorneys General, Steven C. Owyang, Prudence Kay Poppink, Eisen & Johnston Law Corporation, Jay-Allen Eisen, Marian M. Johnston and Ann Perrin Farina for Respondent.
Arlo Smith, District Attorney (San Francisco), David C. Moon, Assistant District Attorney, Steven K. Green, Edward Tabash, John Beattie, Greenberg, Glusker, Fields, Claman & Machtinger and Roger L. Funk as Amici Curiae on behalf of Respondent.
David Link and Thomas F. Coleman for Real Parties in Interest.
James K. Hahn, City Attorney (Los Angeles), Charles I. Goldenberg, Assistant City Attorney, and Maria Perez Manning, Deputy City Attorney, as Amici Curiae on behalf of Real Parties in Interest.
Marsha Jones Moutrie, City Attorney (Santa Monica), Joseph Lawrence, Assistant City Attorney, Martin T. Tachiki, Barry A. Rosenbaum and Kimery A. Shelton, Deputy City Attorneys, Jon W. Davidson, Carol A. Sobel, Paul L. Hoffman, Mark D. Rosenbaum, Matthew A. Coles, Margaret C. Crosby, Tzivia Schwartz, Barbara H. Bergen, Margalynne Armstrong, James D. Smith, Ameila A. Craig, Wilson, Sonsini, Goodrich & Rosati and Clyde J. Wadsworth as Amici Curiae on behalf of Respondent and Real Parties in Interest.
OPINION
WERDEGAR, J.
The California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA) declares it to be "unlawful [¶] ... [f]or the owner of any housing accommodation to discriminate against any person because of the ... marital status ... of that person" ( id., § 12955, subd. (a)). The Fair Employment and Housing Commission (commission) ruled that a landlord violated the statute by refusing to rent an apartment to an unmarried couple. The Court of Appeal reversed, believing the state may not constitutionally apply FEHA to a landlord whose religious beliefs make it sinful to rent to an unmarried couple. We reverse the decision of the Court of Appeal.
*1151 I. FACTS
The relevant facts set out below are as found by the commission in its final decision.
"Respondent [Evelyn Smith] owns and leases four rental units located [in two duplexes] at 675, 677, 683 and 685 Eastwood Avenue, Chico, California. They are operated exclusively for business and commercial purposes, with income generated from the rentals reported as business income. The business is not organized or classified as a religious, charitable or other nonprofit concern. Respondent does not reside in any of the four units and visits the units occasionally to maintain them.
"When a vacancy occurs in one of the units, the unit is advertised for rent in local newspapers and is otherwise available to the general public. When prospective tenants inquire about a vacant unit, respondent tells them she prefers married couples. She prefers married couples because, for religious reasons, she opposes sex outside of marriage. However, since she has received so many calls from unmarried couples seeking to rent her units, she simply tells prospective tenants that she prefers to rent to married couples.
"Respondent is a Christian. She is a member of Bidwell Presbyterian Church in Chico and has attended there for approximately 25 years. Respondent believes that sex outside of marriage is sinful, and that it is a sin for her to rent her units to people who will engage in nonmarital sex on her property. Respondent believes that God will judge her if she permits people to engage in sex outside of marriage in her rental units and that if she does so, she will be prevented from meeting her deceased husband in the hereafter.
"Respondent has rented her units to single, divorced and widowed persons. Respondent has no religious objection to renting to people who are single, divorced, widowed or married. Respondent would not rent to anyone who engages in sex outside of marriage, whether they are single, divorced, widowed or married. Respondent rents her units to people without regard to their race, color, national origin, ancestry, or physical handicap. Respondent rents her units without regard to the religious beliefs of tenants. She does not know the religious background of most of her tenants because she never asks them and only knows if they volunteer the information. Respondent has rented her units to males and females and does not discriminate on the basis of sex.
"From on or about March 29, 1987, to April 13, 1987, respondent advertised the availability of one of her units in the Chico Enterprise Record. *1152 Complainants [real parties in interest Gail Randall and Kenneth Phillips] saw the advertisement on April 1, 1987, and drove by the unit that night. Because of the particular location, attractive architecture, convenient location and well maintained premises, complainants took a special interest in the unit and the next morning called respondent and arranged to see it. During this telephone conversation respondent stated that she preferred to rent to married couples.
"On or about April 2, 1987, complainants met with respondent and were shown the premises, which they liked very much. Respondent told complainants that she would not rent to unmarried couples, and she asked complainants how long they had been married. Complainant Phillips falsely represented to respondent that he and complainant Randall were married. Complainants made no commitment to rent at that time and filled out an informal application for respondent. Complainant Randall signed her name, `Gail Phillips' on that document.
"Later, complainants called respondent and told respondent they were interested in renting the unit. They met with respondent on or about April 7, 1987. A lease agreement was executed between the parties on that date for the unit located at 677 Eastwood Avenue. It was for a month-to-month tenancy commencing May 1, 1987 at a rent of $325 per month. Complainants also paid respondent a security deposit of $150 for which a receipt was given. Complainant Randall signed the lease agreement, `Gail Phillips'. During this meeting respondent told complainants again that she would not rent to unmarried couples.
"Later in the day on April 7, 1987, complainant Randall called respondent and asked if respondent doubted that Randall and Phillips were married. Randall asked respondent if she wanted to see their marriage license. Respondent said, `No.' Still later on the same day, complainant Phillips called respondent and told her that he and Randall were not married. Respondent told him that she could not rent to an unmarried cohabiting couple because that would violate her religious beliefs. Respondent said that she would return their deposit. She sent them a check for $150."
Randall and Phillips filed separate complaints against Smith with the commission. Based on the complaints, the commission issued two accusations. As subsequently amended, the accusations alleged Smith had violated Government Code section 12955, subdivisions (a), (b), (c) and (d), [1] Civil *1153 Code section 51 (the Unruh Civil Rights Act), [2] and Government Code section 12948. [3]
A hearing before an administrative law judge ensued. Smith defended the accusations on two grounds that are relevant here: first, the relevant provisions of FEHA (Gov. Code, § 12955, subd. (a)) and the Unruh Civil Rights Act (Civ. Code, § 51) do not prohibit discrimination against unmarried couples; second, to require her to rent to an unmarried couple over her religious objections would violate the free exercise clauses of the federal and state Constitutions. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4.) The judge rejected both arguments and issued a proposed decision in favor of Randall and Phillips.
The commission subsequently exercised its power not to adopt the proposed decision and to hear the case itself on the existing record. (Gov. Code, § 11517, subd. (c).) After additional briefing, the commission issued its decision in favor of Randall and Phillips. In its decision, the commission found that Smith had violated Government Code sections 12955, subdivisions (a) and (d), Civil Code section 51, and Government Code section 12948. More particularly, the commission decided that FEHA's prohibition of discrimination based on "marital status" did encompass discrimination against unmarried couples, and that the Unruh Civil Rights Act prohibited all forms of arbitrary discrimination by business establishments, including discrimination against unmarried couples. The commission concluded it had no *1154 power to address Smith's constitutional arguments in view of article III, section 3.5, of the California Constitution. [4] (1a) (See fn. 5.) As relief, the commission ordered Smith to cease and desist from discriminating on the basis of marital status; to post and give to prospective tenants various notices setting out the provisions of FEHA, the outcome of this case, and the statement that Smith practices equal housing opportunity; and to pay Randall and Phillips a total of $454 in compensatory damages and $500 in damages for emotional distress. [5] The commission dismissed the remaining claims as untimely.
Smith sought review of the commission's decision by petition for writ of mandate. (See Code Civ. Proc., § 1094.5.) The Court of Appeal reversed. The court held the state could not prevent Smith from discriminating against unmarried couples, in view of the free exercise clauses of the federal and state Constitutions (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4) and the Religious Freedom Restoration Act of 1993 (42 U.S.C. § 2000bb et seq.). The court also concluded that Smith's inquiry into her tenants' marital status did not violate their right to privacy under the state Constitution. (Cal. Const., art. I, § 1.) [6] The court did not address Smith's argument that FEHA (Gov. Code, § 12955, subd. (a)) and the Unruh Civil Rights Act (Civ. Code, § 51; see also Gov. Code, § 12948) do not prohibit discrimination against unmarried couples.
We granted review.
II. DISCUSSION
A. Does FEHA Prohibit Housing Discrimination Against Unmarried Couples?
In FEHA, the Legislature declared it "unlawful [¶] ... [f]or the owner of any housing accommodation to discriminate against any person because of *1155 the ... marital status ... of that person" (Gov. Code, § 12955, subd. (a)) or "to cause to be made any written or oral inquiry concerning the ... marital status ... of any person seeking to ... rent or lease any housing accommodation" ( id., subd. (b)). The commission found Smith violated FEHA by refusing to rent to Randall and Phillips upon learning they were not married.
(2a) Smith argues "the statutory ban on marital status discrimination does not include [unmarried] cohabiting couples."
(3a) The argument lacks merit. To determine what a statute means, "we first consult the words themselves, giving them their usual and ordinary meaning." ( DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [ 7 Cal. Rptr.2d 238 , 828 P.2d 140 ].) (2b) The usual and ordinary meaning of the words "marital status," as applied to two prospective tenants, [7] is that a landlord may not ask them whether they are married or refuse to rent to them because they are, or are not. Smith asked whether Randall and Phillips were married and refused to rent to them because they were not. The conclusion that she thereby violated FEHA seems unavoidable. [8]
Various amici curiae argue that Smith's refusal to rent to Randall and Phillips does not violate FEHA because it was based on Smith's assumptions about their sexual conduct rather than their marital status. The high courts of Alaska and Massachusetts recently rejected similar arguments. ( Swanner v. Anchorage Equal Rights Com'n (Alaska 1994) 874 P.2d 274, 278, fn. 4 [ 874 P.2d 274 ] [interpreting Alaska Stat. § 18.80.240 ]; Attorney General v. Desilets (1994) 418 Mass. 316, 320 [ 636 N.E.2d 233, 235 ] [interpreting Mass. Gen. Laws Ann. ch. 151B, § 4(6)].) Interpreting a statute analogous to FEHA, the court in Swanner, supra, explained its conclusion in this way: a landlord "cannot reasonably claim that he does not rent or show property to cohabiting couples based on their conduct (living together outside of marriage) and not their marital status when their marital status (unmarried) is what makes their conduct immoral in his opinion." ( Swanner v. Anchorage Equal Rights Com'n, supra, 874 P.2d at p. 278, fn. 4 .) The opinion of the *1156 Supreme Judicial Court of Massachusetts in Attorney General v. Desilets, supra , is to the same effect. [9]
Smith argued before the commission, and various amici curiae argue here, that Government Code section 12955 can be read as protecting single, married, widowed, and divorced individuals rather than unmarried couples. However, to acknowledge the statute protects the former, as it undoubtedly does, in no way tends to show it does not also protect the latter. The statutory language banning discrimination based on "marital status" naturally carries both meanings.
Our own Legislature's use of the words "marital status" in other statutes confirms this. Where the Legislature has, in some particular context, wished to treat married and unmarried couples identically, it has chosen to convey that idea by requiring equal treatment regardless of "marital status." In Family Code section 7602, for example, the Legislature declared that "[t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents. " (Italics added.) In Family Code section 1830, the Legislature gave jurisdiction to the family conciliation court over child custody controversies "between parents regardless of their marital status. ..." (Italics added.) In Probate Code section 6450, subdivision (a), the Legislature declared, for purposes of determining intestate succession, that "[t]he relationship of parent and child exists between a person and the person's natural parents, regardless of the marital status of the natural parents." (Italics added.)
The commission has interpreted Government Code section 12955 to protect unmarried couples since 1980, when FEHA was enacted. (See Dept. of Fair Empl. & Hous. v. Smith (1989) FEHC Dec. No. 89-11, at pp. 5-6, revd. on other grounds Smith v. Fair Employment & Housing Com. [*] (Cal. App.); Dept. of Fair Empl. & Hous. v. Donahue (1989) FEHC Dec. No. 89-10, at pp. 4-5, revd. on other grounds Donahue v. Fair Employment and Housing Com. [*] (Cal. App.); Dept. of Fair Empl. & Hous. v. Andrews (1984) FEHC *1157 Dec. No. 84-14, pp. 4-5; Dept. of Fair Empl. & Hous. v. Helfrich (1981) FEHC Dec. No. 81-08, at pp. 5-6; Dept. of Fair Empl. & Hous. v. Bequette (1980) FEHC Dec. No. 80-29, pp. 3-5; Dept. of Fair Empl. & Hous. v. Hess (1980) No. 80-10, FEHC Precedential Decs. 1980-1981, CEB 3, p. 2.)
(4a) Final responsibility for interpreting the law rests with the courts rather than with administrative agencies. ( Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753, 757 [ 151 P.2d 233 , 155 A.L.R. 405 ].) Still, the commission's interpretation of FEHA is entitled to consideration because the commission is the agency charged with the statute's administration. (Gov. Code, § 12930.) It has been said the responsible agency's interpretation is entitled to "great weight" when, as here, it is substantially contemporaneous with the statute's enactment. This is because such interpretations "`are highly relevant and material evidence of the probable general understanding of the times and of the opinions of men [and women] who probably were active in the drafting of the statute.'" ( Whitcomb Hotel, Inc. v. Cal. Emp. Com., supra, 24 Cal.2d at pp. 756-757, quoting White v. Winchester Club (1942) 315 U.S. 32, 41 [ 86 L.Ed. 619, 626 , 62 S.Ct. 425 ]; see also Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1388 [ 241 Cal. Rptr. 67 , 743 P.2d 1323 ].) (2c) The commission first interpreted Government Code section 12955 to bar discrimination against unmarried persons less than two months after the Governor signed it into law. (See Dept. of Fair Empl. & Hous. v. Bequette, supra, FEHC Dec. No. 80-29, pp. 3-5 [dated Nov. 6, 1980]; Stats. 1980, ch. 992, § 2, p. 3154 [reflecting Governor's approval on Sept. 19, 1980].) (4b) The weight due the responsible agency's interpretation of a statute increases when, as here, the agency's interpretation is uniform and of long standing. ( Whitcomb Hotel, Inc. v. Cal. Emp. Com., supra, 24 Cal.2d at p. 757 ; see also Hoyt v. Board of Civil Service Commrs. (1942) 21 Cal.2d 399, 402 [ 132 P.2d 804 ]; Los Angeles v. Superior Court (1941) 17 Cal.2d 707, 712 [ 112 P.2d 10 ].)
(2d) Nothing in the legislative history of Government Code section 12955 contradicts the established interpretation. If the history sheds any light on the matter, it tends to support that interpretation.
The language prohibiting discrimination in housing accommodations "because of ... marital status" derives from the Rumford Fair Housing Act of 1963 (Rumford Act) (former Health & Saf. Code, § 35720), which FEHA superseded. As originally enacted, the Rumford Act did not refer to "marital status." (Stats. 1963, ch. 1853, § 2, p. 3824.) The Legislature added those words in 1975. (Stats. 1975, ch. 1189, § 3, pp. 2943-2944.)
While the 1975 amendment was under consideration, representatives of the Attorney General's Office advised the Legislature in hearings that one of *1158 its effects would be to override prior law (Bus. & Prof. Code, § 125.6), which the Attorney General had interpreted as permitting licensed realtors acting as property managers to select tenants "on the basis of a blood or marital relationship between the prospective occupants or a lack of such relationship...." (Letter from Attorney General to Assemblyman Dixon (Aug. 26, 1974) quoted in 9 Assem. J. (1973-1974 Reg. Sess.) p. 17400.)
That the Legislature understood the 1975 amendment would protect unmarried cohabitants can also be inferred from the text of the amendment. An exception to the amendment, which continues in FEHA (Gov. Code, § 12995, subd. (a)(2)), expressly permitted "any postsecondary educational institution" to provide "housing accommodations reserved for either male or female students ... or ... married students...." (Former Health & Saf. Code, § 35741.5, added by Stats. 1975, ch. 1189, § 6, p. 2947.) The exception had no apparent purpose unless the amendment, without the exception, would have required educational institutions to permit unmarried male and female students to live together, or prevented discrimination in favor of married students.
Soon after the Governor signed the 1975 amendment into law, the court in Atkisson v. Kern County Housing Authority (1976) 59 Cal. App.3d 89, 99-100 [ 130 Cal. Rptr. 375 ] interpreted the amendment as "a general policy statement" making "unlawful" a public housing authority's policy of forbidding a tenant to live with persons of the opposite sex not related to the tenant by blood, marriage, or adoption. Atkisson was the only judicial interpretation of the statutory language barring housing discrimination because of "marital status" in 1980, when the Legislature decided to reuse the language in the new FEHA. (5a) It is frequently said that "[w]hen a statute has been construed by the courts, and the Legislature thereafter reenacts that statute without changing the interpretation put on that statute by the courts, the Legislature is presumed to have been aware of, and acquiesced in, the courts' construction of that statute." ( People v. Bouzas (1991) 53 Cal.3d 467, 475 [ 279 Cal. Rptr. 847 , 807 P.2d 1076 ]; see also Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353 [ 211 Cal. Rptr. 742 , 696 P.2d 134 ]; People v. Hallner (1954) 43 Cal.2d 715, 719 [ 277 P.2d 393 ]; People v. Fox (1977) 73 Cal. App.3d 178, 181 [ 140 Cal. Rptr. 615 ].)
(2e) The new FEHA received the same interpretation as did the old Rumford Act. In 1982, the court in Hess v. Fair Employment & Housing Com. (1982) 138 Cal. App.3d 232 [ 187 Cal. Rptr. 712 ] upheld the commission's finding that the owners of a duplex had violated Government Code section 12955 by rescinding a rental agreement with a man and a woman upon learning they were not married. The court relied on Atkisson v. Kern *1159 County Housing Authority, supra, 59 Cal. App.3d 89 , in holding that the language of FEHA "prohibits discrimination based on marital status, including that against unmarried couples." ( Hess v. Fair Employment & Housing Com., supra, 138 Cal. App.3d at p. 235 .) In the ensuing 13 years, no court has suggested the statute should be interpreted differently.
Smith gives the question of FEHA's interpretation cursory treatment in her brief. As mentioned, she takes the position Government Code section 12955 does not protect unmarried cohabitants. Her argument consists of acknowledging that the decisions in Hess v. Fair Employment & Housing Com., supra, 138 Cal. App.3d 232 , and Atkisson v. Kern County Housing Authority, supra, 59 Cal. App.3d 89 , are to the contrary, and citing without discussion opinions from other states interpreting differently statutes similar to FEHA. Smith does not cite other, more recent decisions contrary to her position. ( Attorney General v. Desilets, supra, 418 Mass. at p. 320 [ 636 N.E.2d at p. 235 ]; Worcester Hous. Auth. v. Massachusetts Comm'n Against Discrimination (1989) 406 Mass. 244 [ 547 N.E.2d 43 ]; Swanner v. Anchorage Equal Rights Com'n, supra, 874 P.2d at p. 278 ; Foreman v. Anchorage Equal Rights Com'n (Alaska 1989) 779 P.2d 1199, 1201-1203 .)
Some of the cases Smith cites are of little value for our purposes. The courts in Illinois, Minnesota, and Washington had the burden of reconciling statutes barring discrimination because of "marital status" with other statutes criminalizing private sexual conduct between consenting adults. ( Mister v. A.R.K. Partnership (1990) 197 Ill. App.3d 105, 113-114 [ 143 Ill.Dec. 166 , 553 N.E.2d 1152, 1157 ]; State by Cooper v. French (Minn. 1990) 460 N.W.2d 2, 5-6 ; McFadden v. Elma Country Club (1980) 26 Wn.App. 195, 201-202 [ 613 P.2d 146, 150 ].) We do not labor under the same burden. [10] In 1975, a few months before the Legislature amended the Rumford Act to prohibit housing discrimination because of "marital status," the Legislature repealed the laws criminalizing private, sexual conduct between consenting adults. (See Stats. 1975, ch. 71, § 7, p. 133; see generally Note, California "Consenting Adults" Law: The Sex Act in Perspective (1976) 13 San Diego L.Rev. 439.)
Smith also cites an opinion by the high court of Wisconsin, in which the court declared a county ordinance similar to FEHA "invalid to the extent that it [sought] to protect `cohabitants'...." ( County of Dane v. Norman *1160 (1993) 174 Wis.2d 683, 688 [ 497 N.W.2d 714, 716 ].) The court reasoned the county had no power to enact statutes "inconsistent with the public policy of [Wisconsin,] which seeks to promote the stability of marriage and family." ( Ibid. ) We have no analogous power to invalidate a state statute, such as Government Code section 12955, on nonconstitutional grounds. The argument is illogical in any event: one can recognize marriage as laudable, or even as favored, while still extending protection against housing discrimination to persons who do not enjoy that status.
An opinion by the high court of New York ( Hudson View Properties v. Weiss (1983) 59 N.Y.2d 733 [ 463 N.Y.S.2d 48 , 450 N.E.2d 234 ]) is not on point. Without expressly deciding whether or not a statute barring discrimination because of "marital status" applied to unmarried couples, the court held that "the issue arises not because the tenant is unmarried, but because the lease restricts occupancy of her apartment ... to the tenant and the tenant's immediate family." ( Id., at p. 735 [ 463 N.Y.S.2d at p. 429 , 450 N.E.2d at p. 235 ] [interpreting N.Y. Exec. Law, § 296, subd. 5(a).].) One can argue from the result that New York courts would not interpret their statute as applying to unmarried couples. But the cursory opinion offers no real assistance on the issue.
A lower court in Maryland ( Prince George's County v. Greenbelt Homes, Inc. (1981) 49 Md. App. 314 [ 431 A.2d 745 ]) did interpret a statutory ban on "marital status" discrimination as not protecting unmarried couples. The court permitted a housing association to refuse to approve the sale of a house to an unmarried couple. The court reasoned that "neither complainant (each of whom was `single,' `unmarried') was denied membership individually because of his or her individual marital status. While each separately had a marital status, collectively they did not." ( Id., at p. 319 [431 A.2d at pp. 747-748], italics omitted.) The Maryland court's reasoning cannot easily be applied to California law. Our Legislature, as mentioned, has used the words "marital status" to refer to the presence or absence of the marital relationship between two individuals. (E.g., Fam. Code, §§ 1830, 7602; Prob. Code, § 6450.)
Ultimately, the question must be answered as a matter of California law. In view of Government Code section 12955's language, its uniform and long-standing interpretation by the commission and the courts, and its legislative history, we conclude that FEHA does protect unmarried cohabitants against housing discrimination. [11]
*1161 B. Does Federal or State Law Require the State to Exempt Smith From FEHA to Avoid Burdening Her Religious Exercise?
Having concluded that Smith violated FEHA, we must now determine whether the state is required to exempt her from that law to avoid burdening her exercise of religious freedom. Although the question has arisen in three other states, only the Supreme Court of Alaska has decided it. That court rejected the landlord's claim to an exemption. ( Swanner v. Anchorage Equal Rights Com'n, supra, 874 P.2d at pp. 279-280, cert. den. (1994) ___ U.S. ___ [ 130 L.Ed.2d 368 , 115 S.Ct. 460 ].) The Supreme Judicial Court of Massachusetts found the question inappropriate for resolution by summary judgment and remanded for further evidentiary proceedings. ( Attorney General v. Desilets, supra, 418 Mass. at pp. 320-334 [636 N.E.2d at pp. 235-243].) The Supreme Court of Minnesota, which interpreted Minnesota law as permitting discrimination against unmarried couples, for that reason did not address the landlord's claim to an exemption. ( State by Cooper v. French, supra, 460 N.W.2d at p. 11 .)
Smith's claim to an exemption implicates three areas of law: the First Amendment to the United States Constitution, the Religious Freedom Restoration Act of 1993 (42 U.S.C. § 2000bb et seq.), and article I, section 4, of the California Constitution. We consider each in turn.
1. The First Amendment.
(6a) The First Amendment does not support Smith's claim. Her religion may not permit her to rent to unmarried cohabitants, but "the right of free exercise does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" ( Employment Div., Ore. Dept. of Human Res. v. Smith (1990) 494 U.S. 872, 879 [ 108 L.Ed.2d 876, 886 , 110 S.Ct. 1595 ], quoting United States v. Lee (1982) 455 U.S. 252, 263, fn. 3 [ 71 L.Ed.2d 127, 136 , 102 S.Ct. 1051 ].) The statutory prohibition against discrimination because of marital status (Gov. Code, § 12955) is a law both generally applicable and neutral towards religion. The law is generally applicable in that it prohibits all discrimination without reference to motivation. The law is neutral in that its object is to prohibit discrimination irrespective of reason — not because it is *1162 undertaken for religious reasons. (See Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 566 [ 124 L.Ed.2d 472, 512 , 113 S.Ct. 2217 ].) Consequently, section 12955 does not violate the free exercise clause as interpreted in Employment Div., Ore. Dept. of Human Res. v. Smith, supra .
The foregoing principles reflect the latest evolution in the United States Supreme Court's understanding of the free exercise clause. While they bar Smith's claim under the federal Constitution to an exemption from FEHA, to assist in understanding her claims under the Religious Freedom Restoration Act and the California Constitution we review how the free exercise clause was interpreted in the past and how the high court arrived at the current understanding articulated in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 .
In the earliest cases arising under the free exercise clause, the high court held that, while freedom of religious belief was absolutely protected, the government might regulate conduct. That a generally applicable law incidentally burdened a person's right to freely exercise his or her religion was not considered a valid objection to the law's enforcement. (E.g., Reynolds v. United States (1878) 98 U.S. (8 Otto) 145, 167 [ 25 L.Ed. 244, 250-251 ] [upholding application of polygamy statute to person whose religious beliefs required polygamous marriages].)
The court later came to view the distinction between belief and conduct as an insufficient basis for resolving conflicts between religious exercise and generally applicable laws. ( Wisconsin v. Yoder (1972) 406 U.S. 205, 220 [ 32 L.Ed.2d 15, 28 , 92 S.Ct. 1526 ] ["in this context belief and action cannot be neatly confined in logic-tight compartments"].) Thereafter, instead of simply distinguishing between belief and conduct, the court weighed the burden on religious exercise against the government's interest in applying the law. If the burden was substantial and outweighed the government's interest, the government was required to accommodate the religiously motivated conduct by exempting it from the law. [12] If, on the other hand, the government's interest was of sufficient importance to outweigh the burden on religious *1163 exercise and could not be achieved by less restrictive means, no accommodation was required. [13] Governmental interests thought to be sufficient for these purposes were variously described as "compelling" ( Sherbert v. Verner , supra, 374 U.S. at p. 403 [10 L.Ed.2d at p. 970]), "strong" ( id. at p. 408 [10 L.Ed.2d at p. 973]), "of the highest order" ( Wisconsin v. Yoder, supra, 406 U.S. at p. 215 [ 32 L.Ed.2d at p. 25 ]), and "very high" ( United States v. Lee, supra, 455 U.S. at p. 259 [ 71 L.Ed.2d at p. 133 ]). An accommodation was not required if the burden on religious exercise was not considered substantial. [14] This approach to cases involving generally applicable laws that incidentally burdened religious exercise — balancing the state's interest against the burden on free exercise — came to be known as the "compelling interest" test after the language used in Sherbert v. Verner, supra, 374 U.S. at page 404 [10 L.Ed.2d at pages 970-971].
In 1990, in the case of Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 , the high court abandoned balancing as a way of adjudicating religiously motivated challenges to generally applicable laws. The case was brought by employees of a private drug rehabilitation program, who were fired from their jobs and denied state unemployment benefits because they had used the drug peyote for sacramental purposes at a ceremony of the Native American Church. The employees challenged the denial of benefits as a violation of the free exercise clause. The Oregon Supreme Court ordered the benefits reinstated. The court reasoned the state's interest in preserving the financial integrity of the unemployment compensation fund did not outweigh the burden on the plaintiffs' religious exercise. ( Smith v. Employment Div. (1986) 301 Or. 209, 217-219 [ 721 P.2d 445, 449-450 ].)
*1164 The United States Supreme Court reversed. Repudiating the balancing test set out in such cases as Sherbert v. Verner, supra, 374 U.S. 398 , and Wisconsin v. Yoder, supra, 406 U.S. 205 , the court explained: "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." ( Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at pp. 878-879 [ 108 L.Ed.2d at p. 885 ].) The court distinguished earlier cases granting exemptions for religiously motivated conduct as involving "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press [citations]." ( Id. at p. 881 [ 108 L.Ed.2d at p. 887 ].) To the argument that, "when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation" ( id. at p. 882 [ 108 L.Ed.2d at p. 888 ]), the court replied: "We have never held that, and decline to do so now" ( ibid. ).
In 1993, Congress restored the "compelling interest" test as a matter of statutory law by enacting the Religious Freedom Restoration Act. (42 U.S.C. § 2000bb et seq.) We shall address the act, as well as its application to this case, in the next section of this opinion.
Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 472 , disposes of Smith's claim under the free exercise clause of the federal Constitution. The Smith opinion, however, might be read as still requiring a court to apply the "compelling interest" test when a generally applicable law burdens a so-called "hybrid right," i.e., the right of free exercise in combination with another constitutional right. (Cf. id. at pp. 881-882 [108 L.Ed.2d at pp. 887-888].) The argument is based on the high court's statement that past decisions creating exceptions to generally applicable laws involved "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections...." ( Id. at p. 881 [108 L.Ed.2d at p. 887].) The remedial order issued against Smith requires her to post a sign informing prospective tenants of their rights under FEHA, among other things. This, she asserts, violates her right to freedom of speech. [15] The parties opposed to Smith's position argue the high court's discussion of hybrid rights was not intended to preserve the balancing test for any class of cases, but was, instead, merely a part of the court's explanation of why it *1165 was rejecting the assertion the First Amendment requires accommodation of religiously motivated conduct. (See ante, p. 1164.)
We need not, and do not, consider the "hybrid rights" issue. Assuming for the sake of argument the opinion in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 472 , does preserve the "compelling interest" test in cases involving "hybrid rights," the effect is simply to require us to apply the same test we must apply in any event under the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.). We turn now to the act.
2. The Religious Freedom Restoration Act.
The Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.) (hereafter RFRA, or the act) provides that "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subdivision (b)." (42 U.S.C. § 2000bb-1(a).) Under subdivision (b), "[g]overnment may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person — [¶] (1) is in furtherance of a compelling governmental interest; and [¶] (2) is the least restrictive means of furthering that compelling governmental interest." (42 U.S.C. § 2000bb-1(b).)
(7a) RFRA applies to this case. Broadly and expressly retroactive, the act "applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993 [the date on which RFRA became effective]." (42 U.S.C. § 2000bb-3(a).) Smith has standing to invoke RFRA because she claims FEHA burdens her religious exercise. Under RFRA, "[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." (42 U.S.C. § 2000bb-1(c).) [16]
(8) In applying RFRA to this case, we look to the entire body of case law interpreting the free exercise clause prior to Employment Div., Ore. Dept. *1166 of Human Res. v. Smith, supra, 494 U.S. 872 . That we must do so is evident from the language of the act, its legislative history, and federal judicial decisions interpreting it. In the act, Congress articulated its understanding that "the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." (42 U.S.C. § 2000bb(a)(5).) Congress also declared its intent "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 and Wisconsin v. Yoder, 406 U.S. 205 (1972)...." (42 U.S.C. § 2000bb(b)(1).) The references to Sherbert and Yoder are illustrative only: the legislative history shows Congress did not intend to "express approval or disapproval of the result reached in any particular court decision involving the free exercise of religion, including those cited in the act itself. [Instead, the] bill is not a codification of the result reached in any prior free exercise decision but rather the restoration of the legal standard that was applied in those decisions. Therefore, the compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith. " (Sen.Rep. No. 103-111, 1st Sess., p. 9 (1993), reprinted in 1993 U.S. Code Cong. & Admin. News, at p. 1898 [Senate Judiciary Committee Report], italics added.) Federal courts have followed this advice in applying RFRA by looking to the entire body of case law decided before Employment Div., Ore. Dept. of Human Res. v. Smith, supra . (E.g., American Life League, Inc. v. Reno (4th Cir.1995) 47 F.3d 642, 655, fn. 6 [quoting the Sen. Judiciary Com. Rep.]; Thiry v. Carlson (D.Kan. 1995) 887 F. Supp. 1407, 1412 .)
(9a) Read together, RFRA, the decisions interpreting RFRA, and the decisions interpreting the free exercise clause prior to Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 , prescribe the following analysis for cases in which a neutral, generally applicable law is claimed to burden the exercise of religion: (1) The burden must fall on a religious belief rather than on a philosophy or a way of life. [17] (2) The burdened religious belief must be sincerely held. [18] (3) The plaintiff must prove the burden is substantial or, in other words, legally significant. [19] (4) If all of the foregoing are true, the government must "demonstrate[] that application of the burden *1167 to the person [¶] ... is in furtherance of a compelling governmental interest; and [¶] ... is the least restrictive means of furthering that compelling interest." (42 U.S.C. § 2000bb-1(b).) [20]
Randall, Phillips, and various amici curiae urge us to add a preliminary step to this analysis by asking, first, whether the activity subject to the challenged law constitutes the exercise of religion. The renting of apartments does not, they argue, and for that reason is not entitled to protection under RFRA.
We cannot dispose of Smith's claim so easily. The religious practice FEHA is alleged to burden is not the renting of apartments, but Smith's practice of not committing the sin she believes inheres in renting to unmarried cohabitants. That the alleged burden is indirect is irrelevant; the same is true of virtually all of the cases decided under the accommodation doctrine that RFRA codified. (Cf. Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872, 894 [ 108 L.Ed.2d 876, 895 ] (conc. opn. of O'Connor, J.) ["few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice"] (italics added).) While the renting of apartments may not constitute the exercise of religion, if Smith claims the laws regulating that activity indirectly coerce her to violate her religious beliefs, we cannot avoid testing her claim under the analysis codified in RFRA. We turn to that analysis now.
(7b) That Smith's Christian beliefs are religious and that she sincerely holds them is not seriously in question. An effort was made in the hearing before the commission to show that Smith's church, the Presbyterian Church, U.S.A., does not share her view that renting to unmarried couples is a sin. That such testimony might help to evaluate a person's sincerity is not inconceivable. "One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause...." ( Thomas v. Review Board, supra, 450 U.S. at p. 715 [67 L.Ed.2d at p. 632].) However, "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit *1168 First Amendment protection." ( Id. at p. 714 [67 L.Ed.2d at p. 631].) Instead, all that is necessary to establish the required sincerity is "an honest conviction" that one's religion prohibits the conduct required by law. ( Id. at p. 716 [67 L.Ed.2d at p. 632].) We therefore continue with the required analysis.
The parties disagree on the question whether Government Code section 12955, which forbids Smith to discriminate against unmarried cohabitants, substantially burdens the exercise of her religion. The answer to the question is critical. (9b) Under RFRA, unless the challenged law imposes a substantial burden, the government need not demonstrate a compelling interest justifying the law or show that the law is the least restrictive means to further the interest. (See 42 U.S.C. § 2000bb-1(a) & (b); see also Goodall by Goodall v. Stafford County School Bd., supra, 60 F.3d at p. 171; American Life League, Inc. v. Reno, supra, 47 F.3d at p. 654 ; Werner v. McCotter, supra, 49 F.3d at p. 1480.) The same held true under the free exercise clause prior to Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 . (See, e.g., Swaggart Ministries v. Cal. Bd. of Equalization, supra, 493 U.S. at pp. 384-392 [107 L.Ed.2d at pp. 805-811]; Hernandez v. Commissioner, supra, 490 U.S. at p. 699 [104 L.Ed.2d at p. 786]; Tony & Susan Alamo Foundation v. Sec'y of Labor, supra, 471 U.S. at pp. 303-305 [85 L.Ed.2d at pp. 289-291]; Braunfeld v. Brown, supra, 366 U.S. at pp. 605-606 [6 L.Ed.2d at pp. 567-568].)
One can imagine an accommodation doctrine, such as that which RFRA embodies, without the threshold requirement of a substantial burden. The resulting law would look something like this: when a person understood his or her religious beliefs as demanding that an activity be conducted in a particular way, and when the state required the activity to be conducted in a different way, the state would in every such instance be obliged to justify its law with a compelling interest and a showing that the law represented the least restrictive means to further the interest. Because religious beliefs can affect all aspects of life, and because each person may define his or her own religious beliefs, even if those beliefs are not "acceptable, logical, consistent, or comprehensible to others" ( Thomas v. Review Board, supra, 450 U.S. at p. 714 [67 L.Ed.2d at p. 631]), to abandon the threshold requirement of a substantial burden would considerably alter the nature and efficacy of legal duties in our constitutional system: each person would unilaterally decide, in each of the multitude of situations affected by state regulation, which laws to obey and which to ignore. This would turn on its head the ordinary assumption that legislation on economic and social matters need only have a rational basis; instead, any declaration of sincerely held religious belief, however "[in]comprehensible" ( ibid. ), would require the state to justify any conflicting law under the compelling interest standard or forego its uniform enforcement.
*1169 The threshold requirement of a "substantial burden" helped, before Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 , to avoid this potential for unlimited conflict between the multitude of laws and the multitude of religious beliefs. Congress pointedly retained the threshold requirement in RFRA. While recognizing that "laws `neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise" (42 U.S.C. § 2000bb(a)(2)), Congress undertook to afford protection only against those laws that "substantially burden religious exercise" ( id., § 2000bb(a)(3), italics added; see also, id., §§ 2000bb(b)(1), (b)(2), 2000bb-1(a), (b).)
In enacting RFRA, Congress did not attempt to define a "substantial burden." Instead, the legislative history of the act shows Congress "expect[ed] that the courts [would] look to free exercise cases decided prior to Smith for guidance in determining whether the exercise of religion has been substantially burdened." (Sen.Rep. No. 103-111, 1st Sess., p. 8, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at p. 1898; see Thiry v. Carlson, supra, 887 F. Supp. at p. 1412 [quoting Sen. Judiciary Com. Rep.].) This general reference to the law before Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 , does not make our task easy. While the cases decided before Smith do provide guidance on the question of what constitutes a substantial burden, they do not offer a generally applicable definition of substantial burden or a generally applicable test for determining when a substantial burden exists. Instead, the pre- Smith cases disclose a case-by-case approach to the problem of deciding whether the government should be obliged to justify a challenged law under the compelling interest test. Under these circumstances our task is not to invent a definition, or distill a test, that has never received the endorsement of Congress. Instead, to remain faithful to the language and intent of RFRA, we must compare the facts of the case before us with the facts of the cases decided before Smith and attempt to reach a consistent result.
The obvious starting points in this inquiry are the cases to which Congress specifically referred in the text of RFRA, namely Sherbert v. Verner, supra, 374 U.S. 398 , and Wisconsin v. Yoder, supra, 406 U.S. 205 . While examining these cases we must, however, bear in mind the admonition that Congress did not intend to "express approval or disapproval of the result reached in any particular court decision involving the free exercise of religion, including those cited in the act itself. " (Sen.Rep. No. 103-111, 1st Sess., p. 9, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at p. 1898, italics added.)
The decision in Sherbert v. Verner, supra, 374 U.S. 398 , is the first of a line of cases holding that a state may not refuse to pay unemployment *1170 compensation to a claimant who quit a job for religious reasons. (See also Frazee v. Illinois Employment Security Dept. (1989) 489 U.S. 829 [ 103 L.Ed.2d 914 , 109 S.Ct. 1514 ]; Hobbie v. Unemployment Appeals Comm'n of Fla. (1987) 480 U.S. 136 [ 94 L.Ed.2d 190 , 107 S.Ct. 1046 ]; Thomas v. Review Board, supra, 450 U.S. 707 .) In Sherbert, Frazee, and Hobbie , the claimant refused to work on a religiously defined Sabbath. In Thomas , the claimant refused to help manufacture armaments. The Supreme Court has articulated the rule of these cases as follows: "`Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.'" ( Hobbie v. Unemployment Appeals Comm'n of Fla., supra, 480 U.S. at p. 141 [94 L.Ed.2d at pp. 197-198], quoting Thomas v. Review Board, supra, 450 U.S. at p. 717 [ 67 L.Ed.2d at p. 634 ], italics omitted.)
(7c) Turning to the case before us, one observes the obvious conflict between FEHA and the landlord's religious beliefs. This case, however, differs from the unemployment compensation cases in two significant respects. First, the degree of compulsion involved is markedly greater in the unemployment compensation cases than in the case before us. In the former instance, one can avoid the conflict between the law and one's beliefs about the Sabbath only by quitting work and foregoing compensation. To do so, however, is not a realistic solution for someone who lives on the wages earned through personal labor. In contrast, one who earns a living through the return on capital invested in rental properties can, if she does not wish to comply with an antidiscrimination law that conflicts with her religious beliefs, avoid the conflict, without threatening her livelihood, by selling her units and redeploying the capital in other investments.
Second, the landlord's request for an accommodation in the case before us has a serious impact on the rights and interests of third parties. This factor was not present in the unemployment-compensation cases. Because Smith is involved in a commercial enterprise, the state cannot exempt her from the antidiscrimination provisions of FEHA without affecting the members of the public she encounters in the course of her business. More specifically, to permit Smith to discriminate would sacrifice the rights of her prospective tenants to have equal access to public accommodations and their legal and dignity interests in freedom from discrimination based on personal characteristics. (Cf. Atlanta Motel v. United States (1964) 379 U.S. 241, 250 [ 13 L.Ed.2d 258, 264 , 85 S.Ct. 348 ] ["the fundamental object of [federal civil rights legislation] was to vindicate `the deprivation of personal dignity that *1171 surely accompanies denials of equal access to public establishments.'"].) No comparable impairment of the rights of third parties is entailed in requiring the state to pay unemployment compensation to a worker who quits a job that conflicts with his or her religious beliefs. Even if one were to postulate that the rulings in Sherbert v. Verner, supra, 374 U.S. 398 , and its progeny marginally increased the costs to employers of unemployment insurance, the resulting impact on third parties is still far more attenuated than the impact on the prospective tenants in the case before us.
The other case to which Congress specifically referred in RFRA, namely Wisconsin v. Yoder, supra, 406 U.S. 205 , is also distinguishable. In Yoder , a law requiring all children to attend public high school burdened the religious exercise of Amish parents; the parent's beliefs required them to educate their children at home after the eighth grade, a formative period of life, in order to protect their children from worldly influences and teach them the values and skills necessary for integration into the Amish religious community. To find the burden substantial was reasonable since the law was wholly incompatible with the Amish beliefs: adolescence comes only once; if spent in the public schools, the harm to the Amish way of life is permanent. In contrast, the landlord in this case does not claim that her religious beliefs require her to rent apartments; the religious injunction is simply that she not rent to unmarried couples. No religious exercise is burdened if she follows the alternative course of placing her capital in another investment.
The proposition that a burden on religion is not substantial if one can avoid it without violating one's religious beliefs is not of itself, we emphasize, a generally applicable test for identifying substantial burdens. As a factor to consider, however, the proposition finds support in cases decided before Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 . Such was the reasoning, for example, in Tony & Susan Alamo Foundation v. Sec'y of Labor, supra, 471 U.S. 290 . In that case, the employees of a religious foundation, who worked for room and board, objected on religious grounds to receiving the monetary wages required by the Fair Labor Standards Act ( 29 U.S.C. § 201 et seq.). The court rejected the claim with this reasoning: "It is virtually self-evident that the Free Exercise Clause does not require an exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant's freedom to exercise religious rights.... Even if the Foundation were to pay wages in cash, or if the associates' beliefs precluded them from accepting the statutory amount, there is nothing in the Act to prevent the associates from returning the amounts to the Foundation, provided that they do so voluntarily. We therefore fail to perceive how application of the Act would interfere with the associates' right to freely exercise their religious beliefs." (471 U.S. at pp. 303-304 [ 85 L.Ed.2d at p. 290 ], fns. omitted.)
*1172 The decision in Braunfeld v. Brown, supra, 366 U.S. 599 , is to the same effect. In that case, Orthodox Jewish shopkeepers, who observed Saturday as the Sabbath, challenged a law requiring shops to close on Sunday. The shopkeepers, who thus could open for business only five days a week, argued the law placed them at a serious economic disadvantage as compared to other merchants whose religious beliefs permitted them to conduct business six days a week. In this way, they argued, the law coerced them to violate their beliefs. ( Id. at pp. 601-602 [6 L.Ed.2d at pp. 565-566].)
The United States Supreme Court rejected the shopkeepers' claim. ( Braunfeld v. Brown, supra, 366 U.S. 599 .) The court reasoned that the law "d[id] not make unlawful any religious practices of [the shopkeepers]; the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive." ( Id. at p. 605 [ 6 L.Ed.2d at p. 567 ].) The shopkeepers, the court observed, "[were] not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives open to [the shopkeepers] and others similarly situated — retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call for either Saturday or Sunday labor — may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful." ( Id. at pp. 605-606 [ 6 L.Ed.2d at p. 568 ].) "[I]t cannot be expected, much less required that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions." ( Id. at p. 606 [ 6 L.Ed.2d at p. 568 ].)
As the high court recognized, for the shopkeepers in Braunfeld v. Brown, supra, 366 U.S. 599 , to have avoided the conflict between their religious beliefs and the Sunday-closing law by "engaging in some other commercial activity" ( id. at p. 606 [ 6 L.Ed.2d at p. 568 ]) might well have entailed an economic cost. Likewise, we may assume that for the landlord in this case to avoid the conflict between FEHA and her religious beliefs by shifting her capital from rental units to another investment would also entail a cost. (10) An economic cost, however, does not equate to a substantial burden for purposes of the free exercise clause. To the contrary, "[i]t is well established that there is no substantial burden placed on an individual's free exercise of religion where a law or policy [regulating secular conduct] merely `operates so as to make the practice of [the individual's] religious beliefs more expensive.'" ( Goodall by Goodall v. Stafford County School Bd., supra, 60 F.3d at p. 171, quoting Braunfeld v. Brown, supra, 366 U.S. at p. 605 [ 6 L.Ed.2d at p. 567 ], first bracketed phrase added.)
*1173 The proposition that an incidental burden on religious exercise is not substantial if it can be described as simply making religious exercise more expensive finds support in several cases in addition to those already cited. This factor, like the ability of a person to avoid a conflict between law and beliefs without violating those beliefs (e.g., Tony & Susan Alamo Foundation v. Sec'y of Labor, supra, 471 U.S. 290 ; Braunfeld v. Brown, supra, 366 U.S. 599 ), may not constitute a generally applicable test for identifying substantial burdens. Nevertheless, the factor is one that courts under the relevant case law may properly consider.
In Swaggart Ministries v. Cal. Bd of Equalization., supra, 493 U.S. 378 , for example, the high court held a state could impose its sales and use taxes on an evangelist's sale of Bibles and other religious materials. The evangelist argued the taxes burdened the exercise of his religion by reducing his income and, thus, "decreas[ing] the amount of money [he had] to spend on [his] religious activities...." ( Id. at p. 391 [ 107 L.Ed.2d at p. 810 ].) The court declared the economic burden "not constitutionally significant." ( Ibid. ) Although the court "[did] not doubt the economic cost to appellant of complying with a generally applicable sales and use tax, such a tax is no different," the court explained, "from other generally applicable laws and regulations — such as health and safety regulations — to which appellant must adhere." ( Ibid.; see also Hernandez v. Commissioner, supra, 490 U.S. at pp. 698-699 [104 L.Ed.2d at pp. 785-786] [expressing doubt whether the Internal Revenue Service had imposed a substantial burden on taxpayers by disallowing deductions for payments made in exchange for religious services].)
The case of Goodall by Goodall v. Stafford County School Bd., supra, 60 F.3d 168 , arose under RFRA. The parents of a child with a hearing impairment, who sent the child to a sectarian school pursuant to their religious beliefs, sued to compel the state to pay for the same transliteration services as provided to pupils in public school. The lower federal courts ruled such a payment would violate the establishment clause. When the high court held to the contrary ( Zobrest v. Catalina Foothills School Dist. (1993) 509 U.S. 1 [ 125 L.Ed.2d 1 , 113 S.Ct. 2462 ]; see Goodall by Goodall v. Stafford County School Bd., supra, 60 F.3d at p. 170), the parents claimed the state's refusal to provide transliteration services for their child burdened their religious exercise by imposing on them the $14,000 annual cost of a private transliterator.
The Fourth Circuit Court of Appeals rejected the parents' claim on the ground that the economic burden on their religious exercise occasioned by the state's refusal to provide a transliterator was not constitutionally *1174 significant. The court reasoned: "It is well established that there is no substantial burden placed on an individual's free exercise of religion where a law or policy [regulating secular conduct] merely `operates so as to make the practice of [the individual's] religious beliefs more expensive.'" ( Goodall by Goodall v. Stafford County School Bd., supra, 60 F.3d at p. 171.) Thus, the state was not required to justify imposition of the economic burden, nor was the court required to balance the burden against the state's interest in refusing to pay. ( Ibid. )
The court in McCarthy v. Hornbeck (D.Md. 1984) 590 F. Supp. 936 reached the same result under the free exercise clause in a case decided before Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 . Parents who sent their children to a Catholic school sued to compel the state to provide them with the same transportation services as offered to public school pupils. ( McCarthy v. Hornbeck, supra, 590 F. Supp. at p. 945 .) Because the state had "not prohibited plaintiffs from practicing Catholicism" or made "any effort to prevent [them] from sending their children to parochial schools," the state's policy burdened plaintiffs' exercise of their religion, the court observed, only by making it more expensive. Thus, "[t]he question presented [was] whether this increased economic burden constitute[d] an infringement of plaintiffs' free exercise rights." ( Id. at p. 944.) The court rejected the claim.
(7d) One last factor that is relevant here, to which we have already alluded, also properly informs the inquiry into whether an asserted burden on religion is substantial. This is whether the granting of an accommodation would detrimentally affect the rights of third parties. The parties have not brought to our attention a single case in which the Supreme Court exempted a religious objector from the operation of a general law when the court also recognized that the exemption would detrimentally affect the rights of third parties. Indeed, the notion that an accommodation might affect the rights of third parties led the Supreme Court in Wisconsin v. Yoder, supra, 406 U.S. 205 , expressly to limit its holding to avoid such an implication. As limited, the decision cannot be read as authority for granting religiously based exemptions when to do so would sacrifice the rights of third parties.
In Wisconsin v. Yoder, supra, 406 U.S. 205 , Justice Douglas argued in dissent that the Amish parents' rights did conflict with those of their children. ( Id. at p. 241 et seq. [ 32 L.Ed.2d at p. 40 et seq.] (dis. opn. of Douglas, J.).) In response, the majority painstakingly demonstrated that permitting Amish parents to educate their older children at home had not been shown to burden the children's rights. "This case," the court observed, "of course, is not one in which any harm to the physical or mental health of *1175 the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. The record is to the contrary, and any reliance on that theory would find no support in the evidence. [¶] ... The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation.... [¶] Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary.... [¶] The State's argument proceeds without reliance on any actual conflict between the wishes of parents and children." ( Id. at pp. 230-232 [32 L.Ed.2d at pp. 33-34], fns. omitted.)
The case before us is strikingly different than Wisconsin v. Yoder, supra, 406 U.S. 205 , because here the conflict between the landlord's request for an accommodation and the rights of third parties is manifest. The exemption from FEHA Smith seeks can be granted only by completely sacrificing the rights of the prospective tenants not to be discriminated against by her in housing accommodations on account of marital status. To say that the prospective tenants may rent elsewhere is to deny them the full choice of available housing accommodations enjoyed by others in the rental market. To say they may rent elsewhere is also to deny them the right to be treated equally by commercial enterprises; this dignity interest is impaired by even one landlord's refusal to rent, whether or not the prospective tenants eventually find housing elsewhere. In short, were we to grant the requested accommodation, Smith would have more freedom and greater protection for her own rights and interests, while Phillips and Randall would have less freedom and less protection.
In summary, these are the facts on which we must decide whether Smith should be exempt from the antidiscrimination provisions of FEHA: Smith's religion does not require her to rent apartments, nor is investment in rental units the only available income-producing use of her capital. Thus, she can avoid the burden on her religious exercise without violating her beliefs or threatening her livelihood. (Cf. Tony & Susan Alamo Foundation v. Sec'y of Labor, supra, 471 U.S. at pp. 303-304 [85 L.Ed.2d at pp. 289-290]; Braunfeld v. Brown, supra, 366 U.S. at pp. 605-606 [6 L.Ed.2d at pp. 567-568].) The asserted burden is the result not of a law directed against religious exercise, but of a religion-neutral law that happens to operate in a way that makes Smith's religious exercise more expensive. (Cf. Swaggart Ministries *1176 v. Cal. Bd. of Equalization, supra, 493 U.S. at p. 391 [ 107 L.Ed.2d at p. 810 ]; Hernandez v. Commissioner, supra, 490 U.S. at pp. 698-699 [104 L.Ed.2d at pp. 785-786]; Goodall by Goodall v. Stafford County School Bd., supra, 60 F.3d at p. 171; McCarthy v. Hornbeck, supra, 590 F. Supp. at p. 944 .) Finally, to grant the requested accommodation would not affect Smith alone, but would necessarily impair the rights and interests of third parties. (Cf. Wisconsin v. Yoder, supra, 406 U.S. at p. 213 [32 L.Ed.2d at pp. 23-24].)
This set of facts does not, under the relevant case law, support Smith's argument that requiring her to comply with FEHA's antidiscrimination provisions substantially burdens her religious exercise. Accordingly, we have no occasion to determine whether application of the statute to her furthers a compelling state interest or is the least restrictive means to further such an interest. (42 U.S.C. § 2000bb-1(a) & (b).) [21] In concluding Government Code section 12955 does substantially burden Smith's religious exercise, the Court of Appeal erred.
*1177 3. The California Constitution.
(11a) The last question we must address is whether the California Constitution exempts Smith from the requirements of FEHA. The pertinent constitutional provision that particularly concerns us is article I, section 4. As relevant here, the section provides: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State." (Cal. Const., art. I, § 4.)
The parties disagree on how we should apply California Constitution article I, section 4, to the case before us. Smith argues the provision, like RFRA, requires us to exempt her from FEHA unless the burden the statute imposes on her religious exercise is justified by a compelling state interest. Smith argues FEHA does not meet the test. Various amici curiae agree with Smith that article I, section 4, embodies a compelling interest test, but argue the test is satisfied by the state's interest in eradicating housing discrimination. Other amici curiae contend article I, section 4, is more analogous to the federal Constitution's free exercise clause as interpreted in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 , and thus has nothing to say about neutral, generally applicable laws that incidentally burden religious exercise.
(12a) We may take it for granted that the meaning of California Constitution article I, section 4, of the California Constitution is not dependent on the meaning of any provision of the federal Constitution. The state charter declares in so many words that "[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." (Cal. Const., art. I, § 24.) "Respect for our Constitution as `a document of independent force' [citation] forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter." ( People v. Pettingill (1978) 21 Cal.3d 231, 248 [ 145 Cal. Rptr. 861 , 578 P.2d 108 ], quoting People v. Brisendine (1975) 13 Cal.3d 528, 549-550 [ 119 Cal. Rptr. 315 , 531 P.2d 1099 ].)
Nevertheless, a search for the independent meaning of California Constitution, article I, section 4, entails a certain amount of frustration because California courts have typically construed the provision to afford the same protection for religious exercise as the federal Constitution before Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 . Indeed, our more recent cases treat the state and federal free exercise clauses as interchangeable and apply, to both, the compelling state interest test articulated in Sherbert v. Verner, supra, 374 U.S. 398 , and Wisconsin v. Yoder, *1178 supra, 406 U.S. 205 . (See Walker v. Superior Court (1988) 47 Cal.3d 112, 138-141 [ 253 Cal. Rptr. 1 , 763 P.2d 852 ] [evaluating, under Yoder , the claim of a criminal defendant that his failure to obtain medical treatment for a child was religiously motivated]; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1112-1120 [ 252 Cal. Rptr. 122 , 762 P.2d 46 ] [rejecting, under Yoder , the defense of religious motivation to a cause of action for fraud]; In re Arias (1986) 42 Cal.3d 667, 692 [ 230 Cal. Rptr. 505 , 725 P.2d 664 ] [applying Sherbert to prohibit electronic monitoring devices in the chapel of a Youth Authority facility]; People v. Woody (1964) 61 Cal.2d 716, 718, fn. 1 [ 40 Cal. Rptr. 69 , 394 P.2d 813 ] [reversing, under Sherbert , a conviction for using peyote as a sacrament of the Native American Church].)
Under the approach of these cases, the analysis that disposes of Smith's claim under RFRA also disposes of her claim under article I, section 4, of the state Constitution.
Older cases, however, suggest an approach closer to that of the United States Supreme Court in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 , which found no constitutional objection to the application to a religious objector of a neutral, generally applicable law. In Ex parte Andrews (1861) 18 Cal. 678 , one of this court's first interpretations of California Constitution, article I, section 4, we rejected a challenge under the section to a Sunday-closing law. Chief Justice Field set out the court's understanding of the state Constitution's free exercise guarantee in terms much like those the United States Supreme Court would later use in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at pages 876-880 [108 L.Ed.2d at page 885]: "[Article I, section 4,] contains a guarantee for the free exercise and enjoyment of religious profession and worship, without discrimination or preference. We understand this to be an interdict against all legislation, which invidiously discriminates in favor of or against any religious system. It does not interdict all legislation upon subjects connected with religion.... The operation of the [Sunday Closing law] is secular, just as much as the business on which the act bears is secular; it enjoins nothing that is not secular, and it commands nothing that is religious.... The mere fact that this regulation takes effect upon a day which has been appropriated as a day of rest by the sanctions of a particular church, no more destroys the power of the Legislature to command abstinence from labor on that day, than the fact that if the Legislature appointed certain public business to be done on Saturday or Sunday — this would have been `discriminating' against the sects, according religious sanctity to those days." ( Ex parte Andrews, supra, 18 Cal. at pp. 684-685; cf. Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at pp. 878-879 [108 L.Ed.2d at pp. 885] ["We have never held that an individual's religious *1179 beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate"].)
Our older cases, following this approach, did not require accommodations of religiously motivated conduct. ( Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 90-92 [ 82 P.2d 391 ] [declining to reinstate a public school pupil who was expelled for refusing, on religious grounds, to salute the flag; but see Board of Education v. Barnette (1943) 319 U.S. 624 ( 87 L.Ed. 1628 , 63 S.Ct. 1178 , 147 A.L.R. 674 )]; Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232, 242-250 [ 163 P.2d 704 ] [upholding, as applied to a religious organization, municipal ordinances regulating charitable contributions and solicitations]; Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 470 [ 171 P.2d 8 ] [same; "There can be no question, therefore, that a person is free to hold whatever belief his conscience dictates, but when he translates his belief into action he may be required to conform to reasonable regulations which are applicable to all persons and are designed to accomplish a permissible objective."].) Under the approach of these cases, Smith's claim to an exemption would necessarily fail.
That the state Constitution's free exercise clause is more protective of religious exercise than the federal Constitution's free exercise clause has also been suggested. [22] No court, however, has articulated a test more protective than the test set out in Sherbert v. Verner, supra, 374 U.S. 398 , and Wisconsin v. Yoder, supra, 406 U.S. 205 , and now codified in RFRA. (11b) Because Smith's claim fails even under that test, as explained above, we need not address the scope and proper interpretation of California Constitution, article I, section 4. These important questions should await a case in which their resolution affects the outcome.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed to the extent it vacates the award of damages for emotional distress. (See ante, fn. 5.) In all other respects, the judgment is reversed.
George, J., and Arabian, J., [**] concurred.
MOSK, J., Concurring.
(1b), (2f), (3b), (4c), (5b), (6b), (11c), (12b) I generally concur in the opinion prepared by Justice Werdegar. I largely join in its analysis. I fully join in its disposition: except as to the vacation of the *1180 award of damages for emotional distress, the judgment of the Court of Appeal must be reversed.
I write separately to consider the Religious Freedom Restoration Act of 1993 (hereafter sometimes RFRA), which is codified as section 2000bb et seq. of title 42 of the United States Code, and its applicability to this cause. I would not reach the question whether petitioner's defense under the statute is meritorious on its own terms. Rather, for the reasons stated below, I would simply hold that the statute itself is without effect as violative of the United States Constitution.
I
In pertinent part, the First Amendment declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." By their terms, these so-called "religion clauses" — individually the establishment and free exercise clauses — bind Congress and, by extension, the federal government generally — and bind them alone (see Barron v. Baltimore (1833) 32 U.S. (7 Pet.) 243, 247-250 [ 8 L.Ed. 672, 674-675 ]). They are made applicable against state legislatures and, by extension, state governments generally through incorporation in the due process clause of the Fourteenth Amendment. ( Cantwell v. Connecticut (1940) 310 U.S. 296, 303 [ 84 L.Ed. 1213, 1218 , 60 S.Ct. 900 , 128 A.L.R 1352].) They do not so much grant the individual any rights in the religious sphere as limit government from even entering therein. In other words, they do not so much empower the individual as render government altogether "incompetent." ( Ibid. )
In Employment Div., Ore. Dept. of Human Res. v. Smith (1990) 494 U.S. 872 [ 108 L.Ed.2d 876 , 110 S.Ct. 1595 ] (hereafter sometimes Smith ), the United States Supreme Court concluded that government action prohibits the free exercise of religion in violation of the First Amendment whenever it seeks to bar an individual from holding or professing whatever religious belief he chooses. It also concluded that government action imposes the same prohibition whenever it seeks to bar an individual from engaging in religious conduct, whether consisting of performance of religiously prescribed acts or abstention from religiously proscribed acts, solely because such conduct is religious. It concluded, however, that government action does not impose that prohibition if it is neutral and of general applicability and merely happens to prevent an individual from engaging in religious conduct.
Thus, under Smith, the First Amendment's free exercise clause may be spoken of as effectively granting the individual an absolute right to hold and *1181 profess whatever religious belief he chooses. It may also be spoken of as effectively granting the individual an absolute right to engage in religious conduct immune from intentionally invidious government action. But in no sense does it grant the individual any right to engage in such conduct exempt from neutral and generally applicable government action.
In the course of its analysis, the Smith court, in deed if not in word, abandoned the so-called "compelling government interest" test, which had been used in decisions such as Sherbert v. Verner (1963) 374 U.S. 398 [ 10 L.Ed.2d 965 , 83 S.Ct. 1790 ] (hereafter Sherbert ), and Wisconsin v. Yoder (1972) 406 U.S. 205 [ 32 L.Ed.2d 15 , 92 S.Ct. 1526 ] (hereafter Yoder ), for determining claims and defenses relating to exemption from neutral and generally applicable government action based on the First Amendment's free exercise clause. (See Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at pp. 882-890 [108 L.Ed.2d at pp. 887-893].) That test "requir[ed] the government to justify any substantial burden on" the exercise of religion "by a compelling [government] interest and by means narrowly tailored to achieve that interest." ( Id. at p. 894 [108 L.Ed.2d at p. 896] (conc. opn. of O'Connor, J.); accord, id. at p. 883 [108 L.Ed.2d at p. 888].)
The Smith court all but declared the "compelling government interest" test to be "utterly unworkable" because its application would lead courts to attempt to go beyond their judicial powers in order to pass on questions that are ultimately religious. ( Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at p. 888, fn. 4 [108 L.Ed.2d at p. 891].)
The Smith court made plain that the threshold inquiry under the "compelling government interest" test into whether government action "substantially burdens" an individual's exercise of religion required judges to look not only to the character of the particular action but also to the nature of the specific religious conduct. (See Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at pp. 887-888, fn. 4 [108 L.Ed.2d at pp. 891-892].) The former they could do. The latter not. For they would be compelled to consider — explicitly or implicitly — the "centrality" of the conduct in question and/or the "centrality" of the underlying belief. ( Ibid. ) "There is" simply "no way out of the difficulty...." ( Id. at p. 888, fn. 4 [108 L.Ed.2d at p. 891].) But "[i]t is no more appropriate for judges to determine the `centrality' of religious beliefs before applying a `compelling interest' test in the free exercise field, than it would be for them to determine the `importance' of ideas before applying the `compelling interest' test in the free speech field. What principle of law or logic can be brought to bear to contradict a believer's assertion that a particular act is `central' to his personal faith? Judging the centrality of different religious practices is akin to the unacceptable `business of evaluating the relative merits of differing religious claims.' *1182 [Citation.] ... `[I]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.'" ( Id. at pp. 886-887 [108 L.Ed.2d at p. 891].) "`Constitutionally significant burden'" — a paraphrase of "substantial burden" — "would seem to be `centrality' under another name." ( Id. at pp. 887-888, fn. 4 [108 L.Ed.2d at p. 891].) "[I]nquiry into `severe impact'" — another paraphrase of "substantial burden" — "is no different from inquiry into centrality. [It] ... merely substitute[s] for the question `How important is X to the religious adherent?' the question `How great will be the harm to the religious adherent if X is taken away?' There is no material difference." ( Id. at p. 888, fn. 4 [108 L.Ed.2d at pp. 891-892].) In a word, inquiry into whether government action "substantially burdens" an individual's exercise of religion unavoidably entails an inquiry into religion.
Forgoing both praise of Smith and condemnation — each is available in sufficient amount, especially the latter (compare, e.g., Marshall, In Defense of Smith and Free Exercise Revisionism (1991) 58 U. Chi. L.Rev. 308 [defending Smith 's result], with, e.g., McConnell, Free Exercise Revisionism and the Smith Decision (1990) 57 U. Chi. L.Rev. 1109 [attacking Smith ]) — we would do well to isolate what is at the heart of its analysis.
Put simply, Smith speaks about the judiciary as an institution and its lack of competence in matters of religion, whether going to an individual's religious belief or his religious conduct.
The Smith court did not deny the limitations the First Amendment's free exercise clause imposes on government or the rights it effectively grants to individuals. It simply construed both more narrowly than it had previously. Neither did it bar claims or defenses arising from the limitations or rights in question. It merely abandoned a tool for use as to the claims and defenses at issue — a tool it had itself fabricated — namely, the "compelling government interest" test.
To repeat: Smith speaks about the judiciary as an institution and its lack of competence in matters of religion.
The word the Smith court uttered reaches back more than a century to the landmark church property decision in Watson v. Jones (1872) 80 U.S. (13 Wall.) 679 [ 20 L.Ed. 666 ] (hereafter sometimes Watson ) — a federal common law decision that its progeny, including Presbyterian Church v. Hull Church (1969) 393 U.S. 440 [ 21 L.Ed.2d 658 , 89 S.Ct. 601 ] (hereafter sometimes Presbyterian Church ), and Serbian Orthodox Diocese v. Milivojevich (1976) 426 U.S. 696 [ 49 L.Ed.2d 151 , 96 S.Ct. 2372 ] (hereafter sometimes Serbian *1183 Orthodox Diocese ), recognize as declaring the law under the First Amendment. [1]
It is simply this: "`[C]ivil courts,'" whether federal or state, "`must be incompetent judges of matters of faith, discipline, and doctrine; and ..., if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt which would do anything but improve either religion or good morals.'" ( Watson v. Jones, supra, 80 U.S. (13 Wall.) at p. 732 [20 L.Ed. at pp. 677-678].) This is surely true when they consider the lone man or woman who follows a path without any companions — and who is no less worthy of solicitude for that reason (see Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 715-716 [ 67 L.Ed.2d 624, 632-633 , 101 S.Ct. 1425 ]). But it is true as well when they regard hierarchical communities. For "[i]t is not to be supposed that [they] can be as competent in the ... religious faith of all these bodies as the ablest men in each are in reference to their own." ( Watson v. Jones, supra, 80 U.S. (13 Wall.) at p. 729 [ 20 L.Ed. at p. 677 ].)
To quote Presbyterian Church : "[T]he First Amendment forbids civil courts from" "determin[ing] matters at the very core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion." ( Presbyterian Church v. Hull Church, supra, 393 U.S. at p. 450 [ 21 L.Ed.2d at p. 666 ].)
To quote Serbian Orthodox Diocese : "[T]he general rule" under the First Amendment is that "religious controversies" — and indeed, religious questions of any sort — "are not the proper subject of civil court inquiry...." ( Serbian Orthodox Diocese v. Milivojevich, supra, 426 U.S. at p. 713 [ 49 L.Ed.2d at p. 165 ].)
This is not to deny that a court might be tempted to believe itself competent in at least some religious matters and under at least some circumstances. Yet it must not yield. The essence of religion is to go beyond the *1184 bounds of reason. (See, e.g., Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at p. 714 [ 67 L.Ed.2d at p. 631 ] [stating that "religious beliefs need not be ... logical, consistent, or comprehensible ... in order to merit First Amendment protection"].) Judges in our polity may not follow.
II
Proceeding from the Constitution, we now turn to the Religious Freedom Restoration Act of 1993. A brief review of the statute is in order.
Section 1 of RFRA gives the statute's short title, which of course is the "Religious Freedom Restoration Act of 1993."
Section 2 of RFRA states Congress's findings and declares the statute's purposes. (42 U.S.C. § 2000bb.) Subsection (a) sets out the findings: "(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution"; "(2) laws `neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise"; "(3) governments should not substantially burden religious exercise without compelling justification"; "(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion"; and "(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." (42 U.S.C. § 2000bb(a).) Subsection (b) announces the purposes: "(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and [¶] (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government." (42 U.S.C. § 2000bb(b).)
Section 3 of RFRA contains the statute's basic rule, the exception thereto, and the form of judicial relief. (42 U.S.C. § 2000bb-1.) Subsection (a) is the rule: "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability...." (42 U.S.C. § 2000bb-1(a).) Subsection (b) is the exception: "Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person" "(1) is in furtherance of a compelling governmental interest," and "(2) is the least restrictive means of furthering that compelling governmental interest." (42 U.S.C. *1185 § 2000bb-1(b).) Subsection (c) concerns judicial relief: "A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government...." (42 U.S.C. § 2000bb-1(c).)
Section 4 of RFRA amends certain existing statutory provisions to authorize courts and administrative agencies to award attorney fees to the prevailing party, other than the United States, in any action or proceeding in enforcement.
Section 5 of RFRA provides the following definitions: "(1) the term `government' includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State"; "(2) the term `State' includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States"; "(3) the term `demonstrates' means meets the burdens of going forward with the evidence and of persuasion"; and "(4) the term `exercise of religion' means the exercise of religion under the First Amendment to the Constitution." (42 U.S.C. § 2000bb-2.)
Section 6 of RFRA contains provisions relating to the statute's coverage and meaning. Subsection (a) declares that the statute "applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after" its enactment. (42 U.S.C. § 2000bb-3(a).) Subsection (b) lays down as a rule of construction that "[f]ederal statutory law adopted after" the statute's enactment "is subject to" the act "unless such law explicitly excludes such application by reference" thereto. (42 U.S.C. § 2000bb-3(b).) Subsection (c) states that "[n]othing in" the statute "shall be construed to authorize any government to burden any religious belief." (42 U.S.C. § 2000bb-3(c).)
Lastly, section 7 of RFRA provides that "[n]othing in" the statute "shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion...." (42 U.S.C. § 2000bb-4.)
When we construe RFRA, as we must, within its full context (e.g., People v. Swain (1996) 12 Cal.4th 593, 616-617 [ 49 Cal. Rptr.2d 390 , 909 P.2d 994 ] (conc. opn. of Mosk, J.); see, e.g., Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 673 [ 47 Cal. Rptr.2d 108 , 905 P.2d 1248 ] (conc. opn. of *1186 Mosk, J.)), which includes the First Amendment, Sherbert, Yoder, and Smith, [2] we arrive at the following conclusions.
First, RFRA recognizes the First Amendment's absolute limitation against government's "burden[ing]" (RFRA § 6(c), 42 U.S.C. § 2000bb-3(c)) an individual's exercise of religion to the extent that it involves religious belief. (Compare RFRA § 3(b), 42 U.S.C. § 2000bb-1(b) [stating that "[g]overnment may substantially burden a person's exercise of religion," albeit only if it satisfies the "compelling government interest" test (italics added)], with RFRA § 6(c), 42 U.S.C. § 2000bb-3(c) [stating that "[n]othing in" the statute "shall be construed to authorize any government to burden any religious belief' (italics added)].) It thereby recognizes the First Amendment's effective grant to the individual of an absolute right to hold and profess whatever religious belief he chooses. [3]
Second, RFRA imposes a limitation against government's "substantially burden[ing]" (RFRA § 3(a), 42 U.S.C. § 2000bb-1(a)) an individual's exercise of religion to the extent that it involves religious conduct. It thereby effectively grants the individual a right to engage in such conduct unencumbered with such a burden.
Third, RFRA creates an exception from the limitation it imposes on government and the right it effectively grants to the individual against any "substantial burden" on the latter's exercise of religion. The exception requires government to "demonstrate[] that application of [such a] burden to the" specific religious conduct "(1) is in furtherance of a compelling governmental interest" and "(2) is the least restrictive means of furthering that compelling governmental interest." (RFRA § 3(b), 42 U.S.C. § 2000bb-1(b).)
Fourth, the thus-qualified limitation RFRA imposes on government and the thus-qualified right it effectively grants to the individual against any *1187 "substantial burden" on the latter's exercise of religion are statutory. (Sen.Rep. No. 103-111, 1st Sess., pp. 2 & 14, fn. 43, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at pp. 1893 & 1904, fn. 43 [speaking of a "statutory prohibition"]; H.R.Rep. No. 103-88, 1st Sess., p. ___, supra ] [speaking of a "statutory right"].) [4]
Fifth, the terms whereby RFRA imposes a limitation on government and effectively grants a right to the individual as to the latter's exercise of religion, and creates an exception to such limitation and right, are not defined by reference to the world at large, but are rather conduits for definition through the judicial process in light of pertinent pre- Smith federal court decisions. (See RFRA § 2(a)(5) & (b)(1), 42 U.S.C. § 2000bb(a)(5) & (b)(1).) [5]
Sixth, RFRA applies to, and thereby displaces pro tanto, all other law and its implementation, whether federal or state, statutory or otherwise, coming before its enactment or after (RFRA § 6(a), 42 U.S.C. § 2000bb-3(a)), with the sole exception of any future federal statute explicitly excluding itself from its coverage (RFRA § 6(b), 42 U.S.C. § 2000bb-3(b)). [6]
Seventh, and most fundamental, all that RFRA is and all that it does depend on a threshold inquiry by a court into whether government action "substantially burdens" an individual's exercise of religion. (RFRA § 2(b)(1), 42 U.S.C. § 2000bb(b)(1); see RFRA § 3(a) & (b), 42 U.S.C. § 2000bb-1(a) & (b); see also RFRA § 2(a)(5), 42 U.S.C. § 2000bb(a)(5).) It simply adopts that inquiry from pertinent pre- Smith federal court decisions. *1188 (See RFRA § 2(b)(1), 42 U.S.C. § 2000bb(b)(1); RFRA § 2(a)(5), 42 U.S.C. § 2000bb(a)(5).)
III
We may presently address the question with which we are here concerned: Is RFRA violative of the United States Constitution and therefore without effect?
Our starting point is, as it must be, the Constitution itself and its fundamental principles. Through the organic law, as Chief Justice Marshall explained in Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 176 [ 2 L.Ed. 60, 73 ] (hereafter sometimes Marbury ), the people have ordained a government that is limited in its authority and, to that end, have delegated certain specified powers to each of its branches — legislative powers to the Congress, executive powers to the President, and judicial powers to the Supreme Court and any such inferior courts as Congress might establish.
What we call the principle of separation of powers, to quote the Supreme Court in INS v. Chadha (1983) 462 U.S. 919, 951 [ 77 L.Ed.2d 317, 345 , 103 S.Ct. 2764 ] (hereafter sometimes Chadha ), seeks "to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility." "[It] was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted...." ( Buckley v. Valeo (1976) 424 U.S. 1, 124 [ 46 L.Ed.2d 659, 747 , 96 S.Ct. 612 ] ( per curiam ).)
Clearly, the principle of separation of powers is violated if any of the branches of government "exceed[s] the outer limits of its [own] power...." ( INS v. Chadha, supra, 462 U.S. at p. 951 [ 77 L.Ed.2d at p. 345 ].) So held the Supreme Court in Chadha . There, Congress had, in effect, unconstitutionally attempted to empower each of its houses individually, by resolution, to invalidate a decision by the Attorney General, acting pursuant to authority it had delegated, to allow a particular deportable alien to remain in the United States. It could indeed invalidate such a decision. But it had to pass a bill by majority vote in each of its houses together, present it to the President, and, if he disapproved, repass it by two-thirds vote in each of its houses together.
The principle of separation of powers is also violated if any of the branches of government causes another to exceed the outer limits of its power. So held the Supreme Court in Marbury . There, through a provision of the Judiciary Act of 1789, Congress had, in effect, unconstitutionally attempted to empower the Supreme Court to issue writs of mandamus to *1189 federal officers. The issuance of such a writ would have amounted to the exercise of original jurisdiction. The Supreme Court's original jurisdiction, however, extends under clause 2 of section 2 of article III of the United States Constitution only to "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party...." Similar is Lujan v. Defenders of Wildlife (1992) 504 U.S. 555 [ 119 L.Ed.2d 351 , 112 S.Ct. 2130 ] (hereafter sometimes Lujan ). There, through a so-called "citizen-suit" provision in the Endangered Species Act of 1973, Congress had, in effect, unconstitutionally attempted to empower the federal courts to entertain actions by persons seeking to vindicate the public interest in the Secretary of the Interior's compliance with the statute, without regard to whether such actions were "Cases" or "Controversies" as required by clause 1 of section 2 of article III, and without regard to whether such persons had standing as demanded by that provision. The "citizen-suit" provision would have given to the federal courts the power under section 3 of article II to "take Care that the Laws be faithfully executed" — which belongs only to the President. "It would [have] enable[d] the courts, with the permission of Congress, `to assume a position of authority over the governmental acts of another and co-equal department,' [citation], and to become `"virtually continuing monitors of the wisdom and soundness of Executive action."'" ( Lujan v. Defenders of Wildlife, supra, 504 U.S. at p. 577 [ 119 L.Ed.2d at p. 375 ].)
In my view, the principle of separation of powers is violated here. Through RFRA, Congress has, in effect, unconstitutionally attempted to empower the courts, state as well as federal, to pass on religious questions.
In undertaking to apply RFRA and its "compelling government interest" test, a court would have to make a threshold inquiry into whether government action "substantially burdens" an individual's exercise of religion.
To do so, the court would have to take each of the following three steps. If it omitted any one, it would fail in its analysis.
First, the court would have to identify the particular government action that is asserted to cause the "substantial burden." It is surely fit to the task. It need do no more than look to the applicable official prescription or proscription.
Second, the court would have to ascertain the individual's specific religious conduct that is asserted to suffer the "substantial burden." Here, it would begin to experience difficulties. It would have to judge whether he is sincere : such protection as he may be due is based on his religion, not *1190 another's (cf. Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at pp. 715-716 [67 L.Ed.2d at pp. 632-633] [impliedly holding as much under the First Amendment's free exercise clause]). It would also have to judge whether his conduct is religious : such protection as he may be due is based on his religion, nothing else (cf. id. at p. 713 [67 L.Ed.2d at pp. 630-631] [expressly holding as much under the First Amendment's free exercise clause]). To assess his sincerity would be hard. (E.g., Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion (1989) 102 Harv. L.Rev. 933, 954-957 (hereafter Lupu).) To assess the religiousness of his conduct would be harder still. Such a "determination" — to understate the matter — "is more often than not a difficult and delicate task...." ( Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at p. 714 [ 67 L.Ed.2d at p. 631 ].) How could it be otherwise? The religious belief underlying such conduct "need not be ... logical, consistent, or comprehensible...." ( Ibid. ) Finally, the problems inherent in evaluating his sincerity are exacerbated because they must be resolved in the context of the religiousness of his conduct: the question is not whether he is sincere in the abstract, but whether he is sincere in his religion. (Lupu, supra, 102 Harv. L.Rev. at pp. 956-957.)
Third and last, the court would have to decide whether the particular government action "substantially burdens" the individual's specific religious conduct.
The court could not simply accept either the individual's assertion or the government's denial of the requisite "substantial burden." Otherwise, it would run the risk of either allowing the individual "to become a law unto himself" ( Reynolds v. United States (1879) 98 U.S. (8 Otto) 145, 167 [ 25 L.Ed. 244, 250 ]) or letting government act with impunity — results that are antithetical to the RFRA Congress's stated purpose of "striking sensible balances" between the parties (RFRA § 2(a)(5), 42 U.S.C. § 2000bb(a)(5), italics added).
Rather, the court would have to determine whether the particular government action "substantially burdens" the individual's specific religious conduct. To do so, as Smith makes plain, the judge would have to look not only to the character of the government action but also to the nature of the specific religious conduct. As Smith also makes plain, although he could do the former, he could not do the latter. For how could he even speak of a "substantial burden" unless he were to compare what we may call the "weight" of the government action in relation to the "bearing capacity" of the religious conduct? And how could he do that unless he were to pass on religious questions?
It could not persuasively be argued that a court's inquiry into whether government action "substantially burdens" an individual's exercise of religion does not entail an inquiry into religion. Whatever the appearances *1191 might have been before Smith — an inquiry into religion was deemed avoidable — the reality afterward is to the contrary — it is not. So held the very court that devised the inquiry: to determine "substantial burden" — whether under its own name or under such paraphrases as "constitutionally significant burden" or "severe impact" — implicates determining the "centrality" of religious conduct and/or the "centrality" of the underlying religious belief. ( Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at pp. 887-888, fn. 4 [108 L.Ed.2d at pp. 891-892].) But that is "`not within the judicial ken....'" ( Id. at p. 887 [108 L.Ed.2d at p. 891].) On this point, of course, the Smith court is the final authority. The RFRA Congress simply adopted what it found in the pertinent pre- Smith federal court decisions. What it found, however, was an inquiry that extends — unavoidably — into religion. It did not even purport to limit that inquiry, as by renouncing "centrality," in an effort to salvage its constitutionality. That is the end of the matter.
Neither could it persuasively be argued that the judiciary's lack of competence in matters of religion has somehow been removed. The RFRA Congress took no steps in that direction. Had it done so, it would have faltered. For it is itself altogether "incompetent." ( Cantwell v. Connecticut, supra, 310 U.S. at p. 303 [ 84 L.Ed. at p. 1218 ].) To be sure, it evidently believed that the courts possessed whatever power they needed. But the Smith court was of the opposite view. In such a dispute, as Marbury and Lujan demonstrate, the court must prevail.
It may be noted that one commentator has argued that the "strongest reading of ... Smith is that it may verge on unconstitutional for a court to inquire into the substantiality of an alleged burden on religious exercise." (Idleman, The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power (1994) 73 Tex. L.Rev. 247, 273.)
In light of the foregoing, I am compelled to conclude that the best reading of Smith is stronger still: for a court to so inquire is in fact unconstitutional. [7]
*1192 IV
In sum, I am of the view that, except as to the vacation of the award of damages for emotional distress, the Court of Appeal's judgment must be reversed.
KENNARD, J., Concurring and Dissenting.
(2g), (3c), (4d), (5c) At issue in this case is whether Congress's statutory guarantee of religious liberty excuses a California landlord from complying with state law prohibiting housing discrimination against unmarried cohabiting heterosexual couples when compliance would conflict with the landlord's sincerely held religious beliefs. Resolution of this issue requires a close examination of two statutes, one federal and one state.
California has adopted a strong policy against many forms of housing discrimination. This policy is a laudable one for, as I have said in an earlier case, "the act of discrimination itself demeans basic human dignity." ( Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 287 [ 284 Cal. Rptr. 718 , 814 P.2d 704 ] (dis. opn. of Kennard, J.).) As relevant here, California by statute prohibits housing discrimination on the basis of marital status, including discrimination against unmarried couples. California law does not exempt discrimination that is motivated by religious belief.
California's laws against discrimination, however, are not the final word in this case. Also to be considered is a federal law that protects religious liberty, a goal that has figured prominently in our nation's history. "Many of the men and women who settled in this country fled tyranny abroad to practice peaceably their religion. The Nation they created was founded upon the conviction that the right to observe one's faith, free from Government interference, is among the most treasured birthrights of every American." (Sen.Rep. No. 103-111, 1st Sess., p. 4 (1993), reprinted in 1993 U.S. Code Cong. & Admin. News, at pp. 1893-1894.)
To expansively protect religious liberty, Congress in 1993 enacted the Religious Freedom Restoration Act (42 U.S.C. §§ 2000bb to 2000bb-4; hereafter RFRA). RFRA was supported by a broad coalition that included many prominent religious organizations, as well as the American Bar Association and the American Civil Liberties Union. It received overwhelming *1193 bipartisan support in both houses of Congress; its lead sponsors in the Senate were Senators Edward Kennedy and Orrin Hatch.
RFRA provides that a person whose religious beliefs would be "substantially burden[ed]" by complying with a government law is excused from compliance unless the government can show that the law advances a "compelling governmental interest" and that it is the "least restrictive means of furthering that compelling governmental interest." (42 U.S.C. § 2000bb-1(b).) Under our federal Constitution, a federal law such as RFRA is supreme over any conflicting state law. (U.S. Const., art. VI, cl. 2.) Thus, if a state law barring housing discrimination substantially burdens a person's religious beliefs, Congress has, through RFRA, directed that the believer be exempted from the law unless the state can show that eliminating the discriminatory conduct in question is a "compelling" interest and that exempting the believer and others similarly situated from compliance is not a feasible alternative.
In this case, Evelyn Smith, a widow who owns two duplexes, refused to rent a vacant unit to an unmarried heterosexual couple, contrary to California law barring housing discrimination on the basis of marital status. No one questions that in doing so Smith was complying with her sincerely held religious beliefs. The plurality opinion holds that California's housing antidiscrimination law does not substantially burden Smith's religious beliefs and that therefore under RFRA the state need not justify its action by showing that it is the least restrictive means of advancing a compelling governmental interest.
I would hold to the contrary. In requiring Smith to comply with state law by renting to an unmarried couple, contrary to her sincerely held religious beliefs, the state has "substantially burden[ed]" Smith's exercise of her religious beliefs within the meaning of RFRA. Passing to RFRA's "compelling governmental interest" test, it is questionable whether California has carried its burden of showing that eliminating housing discrimination against unmarried heterosexual couples is a compelling governmental interest of the same high order as, for instance, eliminating racial housing discrimination. It is not necessary to resolve that issue here, however, for on the fully developed record in this case, the state has failed to prove that it would be infeasible to exempt Smith and others with sincerely held religious objections from the state's prohibition of housing discrimination against unmarried heterosexual couples. Therefore, RFRA precludes the state from requiring Smith to rent to unmarried heterosexual couples contrary to her religious beliefs.
*1194 I
Petitioner Evelyn Smith owns two duplexes in Chico, Butte County. For religious reasons, Smith objects to sex outside of marriage and believes she will be punished by God if she permits such sex to occur in her rental units. Kenneth Phillips and Gail Randall, an unmarried heterosexual couple, wished to rent one of Smith's units. Because of her religious beliefs, Smith told them that she did not rent to unmarried couples. Initially, they told Smith they were married; she agreed to rent them the unit. Later, they told her they were not married; she refused to rent to them.
Phillips and Randall each filed a complaint against Smith with the Fair Employment Housing Commission (hereafter the Commission). The Commission issued two accusations, alleging Smith had violated the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; hereafter FEHA), and the Unruh Civil Rights Act (Civ. Code, § 51). FEHA prohibits, among other things, "the owner of any housing accommodation to discriminate against any person because of the race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability of that person." (Gov. Code, § 12955, subd. (a), italics added.) The Unruh Civil Rights Act provides that "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51.) FEHA also makes it an unlawful practice under FEHA to violate the Unruh Civil Rights Act. (Gov. Code, § 12948.)
Smith defended on the ground that FEHA and the Unruh Civil Rights Act do not protect unmarried couples from discrimination and on the ground that the free exercise clauses of the state and federal Constitutions permit her to discriminate for religious reasons. After a hearing, an administrative law judge issued a proposed decision that Smith had violated FEHA and the Unruh Civil Rights Act. Addressing Smith's free exercise of religion defense, the administrative law judge found that those laws substantially burdened the free exercise of Smith's religious beliefs but that they were justified by the state's compelling interest in eliminating discrimination.
The Commission, however, did not adopt the administrative law judge's proposed decision but decided the case itself on the existing record. The Commission found that Smith had violated FEHA and the Unruh Civil Rights Act in refusing to rent to Phillips and Randall. The Commission concluded that under the California Constitution it lacked jurisdiction to *1195 address Smith's constitutional arguments. (Cal. Const., art. III, § 3.5.) As relief, the Commission ordered Smith to cease and desist from discriminating, to post notices signed by her stating that she had violated housing discrimination laws and setting forth information about prohibited housing discrimination, and to pay a total of $954 in damages to Phillips and Randall.
Smith filed a petition for a writ of mandate in the Court of Appeal. The court granted the writ and directed that the Commission vacate its decision and dismiss the accusation and complaints against petitioner. The Court of Appeal held that, because the Commission had ordered Smith to post notices of nondiscrimination, her right to free speech was implicated as well as her right to the free exercise of religion. It further held that the state was prohibited by the state and federal Constitutions and the federal RFRA from requiring Smith to rent to unmarried couples contrary to her religious beliefs.
II
A majority of the court holds, and I concur, that California law, through FEHA, protects unmarried couples from housing discrimination. The controlling issue then becomes whether the recent enactment of RFRA by Congress permits Smith, contrary to FEHA but in accord with her religious beliefs, to refuse to rent to unmarried heterosexual couples like Randall and Phillips. Although this is a case involving religious liberty, it does not turn on the free exercise of religion clauses found in the federal and state Constitutions, but on the statutory protection for religious liberty provided by Congress in RFRA.
Congress enacted RFRA in 1993 in response to the United States Supreme Court's decision in Employment Div., Ore. Dept. of Human Res. v. Smith (1990) 494 U.S. 872 [ 108 L.Ed.2d 876 , 110 S.Ct. 1595 ] (hereafter Smith ), which substantially cut back on the protection that the high court's prior decisions had accorded to religiously motivated conduct under the free exercise clause of the federal Constitution. Smith held that "the right of free exercise does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" ( Smith, supra, 494 U.S. at p. 879 [ 108 L.Ed.2d at p. 886 ].) Under Smith, therefore, no matter how great a burden a law may impose on religious conduct, the free exercise clause of the federal Constitution does not exempt the believer from compliance so long as the law is a "neutral law of general applicability."
Prior to Smith, supra, 494 U.S. 872 , the United States Supreme Court had applied a "compelling governmental interest" test in determining whether *1196 governmental actions that burdened the free exercise of religion were permissible. Under that test, the government must show that its action "is the least restrictive means of achieving some compelling state interest." ( Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 718 [ 67 L.Ed.2d 624, 634 , 101 S.Ct. 1425 ].)
Congress specifically enacted RFRA to broadly expand protection for religiously motivated conduct, particularly for religious minorities, after the United States Supreme Court had sharply cut back such protection in Smith, supra, 494 U.S. 872 . [1] In the words of the Senate Report: "By lowering the level of constitutional protection for religious practices, [ Smith ] has created a climate in which the free exercise of religion is jeopardized.... [¶] State and local legislative bodies cannot be relied upon to craft exceptions from laws of general application to protect the ability of the religious minorities to practice their faiths.... [¶] To assure that all Americans are free to follow their faiths free from governmental interference, the committee finds that legislation is needed to restore the compelling interest test. As Justice O'Connor stated in Smith, `[t]he compelling interest test reflects the First Amendment's mandate of preserving religious liberty to the fullest extent possible in pluralistic society. '" (Sen.Rep. No. 103-111, 1st Sess., p. 8, supra, italics added, fns. omitted, reprinted in 1993 U.S. Code Cong. & Admin. News at pp. 1897-1898.)
Congress expressly adopted the compelling interest test in RFRA. Under the heading "Purposes," RFRA states that it "restore[s] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)...." (42 U.S.C. § 2000bb(b)(1).) RFRA goes on to state that "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b)." (42 U.S.C. § 2000bb-1(a).) Under subsection (b), "[g]overnment may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person — [¶] (1) is in furtherance of a compelling governmental interest; and [¶] (2) is the least restrictive means of furthering that compelling governmental interest." (42 U.S.C. § 2000bb-1(b).)
*1197 The threshold question in analyzing a claim under RFRA is whether the government has "substantially burden[ed] a person's exercise of religion"; if the government has done so, then it must demonstrate that the burden furthers "a compelling governmental interest" and is the "least restrictive means" of doing so. (42 U.S.C. § 2000bb-1(a), (b).) Thus, in applying RFRA to this case, the first step is to determine whether California's statutory requirement under FEHA that Smith not discriminate against unmarried heterosexual couples like Phillips and Randall substantially burdens Smith's exercise of her religious beliefs.
III
The plurality opinion holds that FEHA does not "substantially burden" Smith's exercise of her religious beliefs by compelling her, against her religious beliefs, to rent to unmarried heterosexual couples. By holding that Smith has not met RFRA's threshold "substantial burden" test, the plurality opinion avoids having to address the question of whether requiring Smith to rent to unmarried heterosexual couples furthers a compelling governmental interest that cannot be achieved by less restrictive means. Unlike the plurality opinion, I am of the view that FEHA does substantially burden Smith's exercise of her religious beliefs.
Although it concludes that FEHA's requirement that Smith rent to unmarried heterosexual couples does not substantially burden Smith's exercise of her religious beliefs against renting to such couples, the plurality opinion is unable to discern any governing principle underlying the selected cases it surveys that address the substantial burden requirement. The meaning of substantial burden, however, is not as obscure and indeterminate as the plurality opinion believes it to be. In adopting the substantial burden test, Congress did not set loose a doctrinal chameleon for courts to chase through a jurisprudential swamp. Congress intended the substantial burden requirement to serve as a simple threshold test; it did not intend that every RFRA case would be the occasion for an open-ended metaphysical inquiry into the meaning of substantial burden.
In this case in particular, the high court's free

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1179735. Public record. Not legal advice.