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 *1193bipartisan 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 anti-discrimination 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.
*1194I
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 *1195address Smith’s constitutional arguments. (Cal. Const., art. Ill, § 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 *1196governmental 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 . ... FID 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. Vemer, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) . . . .” (42 U.S.C. § 2000bb(b)(l).) RFRA goes on to state that “[government 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-l(a).) Under subsection (b), “[gjovemment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— ['JD (1) is in furtherance of a compelling governmental interest; and [<]Q (2) is the least restrictive means of furthering that compelling governmental interest.” (42 U.S.C. § 2000bb-1(b).)
*1197The 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-l(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 exercise clause decisions predating Smith, supra, 494 U.S. 872, directly refute the plurality opinion’s conclusion that FEHA does not substantially burden Smith’s exercise of her religious beliefs. Those decisions show that a substantial burden exists where, as here, (1) a religious adherent engages in a particular activity; (2) a governmental command relating to the activity conflicts with the adherent’s religious beliefs concerning the activity; (3) the conflict is irreconcilable (that is, to satisfy the governmental command the adherent must either *1198abandon the activity or violate his or her religious beliefs); and (4) the detriment to the adherent from abandoning the activity creates substantial secular pressure on the adherent to violate his or her religious beliefs rather than abandon the activity.
I begin with the first case that the text of RFRA directs us to, Sherbert v. Verner (1963) 374 U.S. 398 [10 L.Ed.2d 965, 83 S.Ct. 1790] (hereafter Sherbert). (42 U.S.C. § 2000bb(b)(l).) Sherbert was the first in a series of United States Supreme Court cases in which the court held that it violated the free exercise clause of the federal Constitution to deny unemployment benefits to persons who had become unemployed because of a conflict between their religious beliefs and the demands of their employers.
As Congress and legal commentators have observed, it was in Sherbert that the high court first fully articulated its modem free exercise clause jurispmdence, which lasted until the high court’s decision in Smith, supra, 494 U.S. 872. (Sen.Rep. No. 103-111, 1st Sess., p. 5, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at pp. 1892, 1894 [“Meaningful constitutional protection against these abuses [burdening the free exercise of religion] began 30 years ago, with the Supreme Court’s landmark decision in Sherbert v. Verner. (Fn. omitted.)”]; McConnell, The Origins and Historical Understanding of Free Exercise of Religion (1990) 103 Harv.L.Rev. 1409, 1412 [“. . . Sherbert v. Verner, [is] the first and leading case in the Supreme Court’s modem free exercise jurispmdence .... (Fn. omitted.)”]; Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion (1989) 102 Harv.L.Rev. 933, 941; Choper, The Rise and Decline of the Constitutional Protection of Religious Liberty (1991) 70 Neb.L.Rev. 651, 655.) The Sherbert decision was widely discussed and relied on in the congressional committee reports on RFRA and in the floor debates in Congress. (Sen.Rep. No. 103-111, 1st Sess., pp. 5, 13, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at pp. 1894, 1903; H.R. Rep. 103-88, 1st Sess., pp. 2-9 (1993); remarks of Sen. Feingold, 139 Cong. Rec. SI4461-01, SI4468 (daily ed. Oct. 27, 1993) [“[RFRA] is designed to . . . codify the Free Exercise Exemptions Doctrine established in Sherbert versus Verner”]; remarks of Sen. Bradley, id. at p. SI4469 [“Our modem day jurispmdence on the free exercise clause can be traced back 30 years, when in 1963 the Supreme Court issued its landmark decision, Sherbert versus Verner.”]; remarks of cosponsor Sen. Hatch, id. at p. S14470 [“RFRA reestablishes a very familiar and traditional standard of review that the courts have been applying since the 1963 decision Sherbert v. Verner.”].)
The religious believer in Sherbert was a Seventh Day Adventist whose Sabbath was Saturday. She was fired from her job when, in accordance with *1199her religious beliefs, she refused to work on Saturdays as her employer required. She applied for unemployment benefits, which the state denied because she had refused to work on Saturdays. The United States Supreme Court held that the believer was entitled to unemployment benefits because the state had burdened her religious belief against working on Saturdays.
The high court described the burden as “forc[ing] [the believer] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” (Sherbert, supra, 374 U.S. at p. 404 [10 L.Ed.2d at p. 970].) The court rejected the argument that the indirect economic pressure exerted by the state’s denial of a “gratuitous benefit” (id. at p. 405 [10 L.Ed.2d at p. 971]) was insufficient to constitute a burden on the believer’s exercise of her religion: “In a sense the consequences of [being denied unemployment benefits] . . . may be only an indirect result of welfare legislation within the State’s general competence to enact.... but the pressure upon her to forego [the] practice [of her religion] is unmistakable.” (Id. at pp. 403-404 [10 L.Ed.2d at p. 970].)
The court reached the same conclusion in three later cases in which individuals were denied unemployment benefits after they were fired from or quit their employment because it conflicted with their religious beliefs: Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. 707; Hobbie v. Unemployment Appeals Comm’n of Fla. (1987) 480 U.S. 136 [94 L.Ed.2d 190, 107 S.Ct. 1046]; and Frazee v. Illinois Employment Security Dept. (1989) 489 U.S. 829 [103 L.Ed.2d 914, 109 S.Ct. 1514]. In Thomas, discussing the meaning of a substantial burden on religion, the high court stated: “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.” (Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at pp. 717-718 [67 L.Ed.2d at p. 634].)
In these unemployment benefits cases, the United States Supreme Court found a significant burden on the exercise of religion even though the believers’ religious beliefs did not compel them to engage in the activity (whether defined as voluntary private employment or as the application for unemployment benefits that followed the termination of private employment) that conflicted with their beliefs. Instead, what the high court found determinative was that “the employee was forced to choose between fidelity to religious belief and continued employment; the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee’s choice.” (Hobbie v. Unemployment Appeals Comm’n of Fla., supra, 480 U.S. 136, 144 [94 L.Ed.2d 190, 200].)
*1200Here, Smith is faced with a similar, and similarly burdensome, choice. In requiring Smith to rent to an unmarried heterosexual couple against her sincerely held religious beliefs, the state substantially burdens Smith’s exercise of religion because it “conditions receipt of an important benefit [that is, the right to engage in the rental housing business] upon conduct proscribed by a religious faith, . . . thereby putting substantial pressure on [her] to modify [her] behavior and to violate [her] beliefs.” (Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at pp. 717-718 [67 L.Ed.2d at p. 634].) No less than the believer in Sherbert, supra, 374 U.S. 398, Smith is “force[d] ... to choose between following the precepts of her religion and forfeiting [the right to rent her property], on the one hand, and abandoning one of the precepts of her religion in order to [rent her property], on the other hand.” (Sherbert, supra, 374 U.S. at p. 404 [10 L.Ed.2d at p. 970].)
Denying unemployment benefits to anyone who quits a job for religious reasons creates economic pressure to remain at a job in violation of one’s religious beliefs; likewise here, prohibiting housing discrimination against unmarried couples creates economic pressure on Smith to rent housing to unmarried heterosexual couples in violation of her religious beliefs. Just as the economic pressure on the unemployed was a substantial burden in Sherbert, supra, 374 U.S. 398, and its progeny, so too the economic pressure on Smith in this case is a substantial burden on her exercise of her religious beliefs. In each case, neutral state rules in combination with strong economic incentives create substantial pressure on the believer to engage in voluntary commercial activity in a manner that conflicts with the believer’s religious beliefs; in each case, those beliefs do not compel participation in the activity but participation on the government’s terms necessarily violates those beliefs.
Indeed, here Smith is subject to substantially more government coercion than the employees who were denied unemployment benefits in the cases discussed above; they lost only the opportunity for a state-conferred monetary benefit by conforming to their beliefs, while in this case the state has imposed on Smith civil penalties and a cease-and-desist order dictating her future conduct. In addition, the cease-and-desist order may be entered as a judgment (Gov. Code, § 12973, subd. (b)), which would thereby make Smith liable to additional fines and imprisonment should she follow her religious beliefs and refuse to obey the cease-and-desist order (Code Civ. Proc., § 1218).
Other free exercise decisions by the United States Supreme Court predating Smith, supra, 494 U.S. 872, also demonstrate that Smith’s exercise of her religious beliefs has been substantially burdened in this case. For instance, in United States v. Lee (1982) 455 U.S. 252, 256-258 [71 L.Ed.2d 127, 131-133, 102 S..Ct. 1051], the Amish proprietor of a carpentry shop refused to withhold and pay Social Security taxes on his employees’ income because of *1201his religious beliefs. The high court concluded that “[b]ecause the payment of the [Social Security] taxes or receipt of [Social Security] benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights” and could only be justified by showing that “it is essential to accomplish an overriding governmental interest." (Id. at pp. 257-258 [71 L.Ed.2d at p. 132].)
And, in Bowen v. Roy (1986) 476 U.S. 693 [90 L.Ed.2d 735, 106 S.Ct. 2147], the government’s requirement that persons requesting welfare benefits furnish a Social Security number to the welfare agency conflicted with the religious belief of the Native American in that case; a majority of the high court found that this requirement burdened the individual’s religious beliefs and that the government had not justified the burden. (Id. at pp. 727-728 [90 L.Ed.2d at pp. 762-763] (conc, and dis. opn. of O’Connor, J., concurred in by Brennan and Marshall, JJ.); id. at pp. 715-716 [90 L.Ed.2d at pp. 754-755] (conc. opn. of Blackmun, J., concurring in opn. of O’Connor, J., on this issue); id. at p. 733 [90 L.Ed.2d at p. 766] (dis. opn. of White, J.).) In neither Lee nor Roy did the person’s religious beliefs compel participation in the activity that created the conflict (employing carpenters in a carpentry shop in Lee; applying for welfare benefits in Roy), and thus the believer could have avoided the conflict without doing violence to those beliefs by abandoning the activity. Indeed, in both cases the motivation for the activity was economic gain, not religious observance; yet the high court nonetheless held that each of these conflicts resulted in a constitutionally significant burden on the believer that the government had to justify under the compelling interest test.2
It is thus not surprising that Massachusetts’s highest court has concluded, as do I, that under the United States Supreme Court’s case law prior to Smith, supra, 494 U.S. 872, forcing a landlord to rent to unmarried heterosexual couples contrary to his or her religious beliefs substantially burdens the landlord’s exercise of religious beliefs. In Attorney General v. Desilets (1994) 418 Mass. 316 [636 N.E.2d 233], the Supreme Judicial Court of Massachusetts was faced with a similar statute outlawing marital status discrimination in housing. As here, a landlord with religious objections to sex outside of marriage refused to rent to an unmarried heterosexual couple. The court held that Massachusetts’s prohibition against housing discrimination based on marital status substantially burdened the free exercise of the *1202landlord’s religious beliefs.3 (418 Mass, at pp. 323-325 & fn. 5 [636 N.E.2d at pp. 236-238].)
IV
The plurality opinion attempts to distinguish the United States Supreme Court’s unemployment benefits cases on two grounds, neither of which has merit. First, it is of the view that because Smith is not a wage earner, she is subject to less compulsion than were the religious adherents in the unemployment benefits cases. Second, it attempts to distinguish those decisions on the ground that granting Smith an exemption from FEHA’s requirements would have an adverse impact on the rights that FEHA grants to Phillips and Randall. I shall examine each of these arguments in turn.
The plurality opinion takes the position that the rationale of the unemployment benefit cases does not apply here because “the degree of compulsion involved is markedly greater in the unemployment-compensation cases.” (Plur. opn., ante, at p. 1170.) This is wrong. The plurality opinion ignores that, as noted above, Smith is subject to greater, not less, coercion than those who follow their religious beliefs rather than their employers’ demands. If they are fired and denied unemployment benefits, they only lose a state subsidy of their transaction costs in finding new employment. For following her religious beliefs rather than FEHA, however, Smith is subject to civil penalties, a cease-and-desist order dictating her future conduct, and imprisonment.
Nor is the compulsion any less because, as the plurality opinion notes, Smith can sell her two duplexes and invest the proceeds in some other enterprise, a process the plurality opinion terms “redeploying . . . capital.” (Plur. opn., ante, at p. 1170.) The employees in the unemployment benefits cases discussed above could have likewise sought other forms of employment that did not conflict with their religious beliefs or have chosen not to apply for benefits when they quit work, but that fact did not justify the denial of benefits to them when they quit work for religious reasons. Under the plurality opinion’s reasoning, the Amish carpenter in United States v. Lee, supra, 455 U.S. 252, could have “redeployed” his assets into an investment that did not require him to hire employees subject to the Social Security tax, and the Native American in Bowen v. Roy, supra, 476 U.S. 693, could have *1203avoided having to submit a Social Security number to the government by choosing not to apply for welfare benefits. The hypothetical possibility of avoiding the conflict between religious belief and governmental rules by abandoning the activity in question, however, did not nullify the actual substantial burdens to which the government subjected each of these religious believers.
The plurality opinion also maintains that the compulsion was greater in the unemployment benefits cases than it is here because the religious adherents in those cases earned their income from personal labor while Smith lives on “the return on capital.” (Plur. opn., ante, at p. 1170.) Smith, however, is not a passive investor who receives investment income without personal effort. She earns her income by actively managing her rental property. She testified she spent substantial time personally maintaining the duplexes. In addition, when a unit is vacant, she personally places the advertisements, takes the calls from prospective tenants, and interviews them. Thus, Smith does earn her livelihood from personal labor.
Nor does the scope of RFRA’s protection of religious freedom turn on the valorization of labor over capital that the plurality opinion relies on. Changing jobs and changing investments both entail transaction costs. There is no basis for the plurality opinion’s assumption that transaction costs of changing capital investments cannot amount to “substantial pressure on [an adherent] to modify [her] behavior and to violate [her] beliefs” (Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at pp. 717-718 [67 L.Ed.2d at p. 634]), as do the transaction costs of changing jobs. In this case, Smith is a widow, and the two duplexes are her major source of income. The costs to Smith of switching to an alternative investment may be substantial, for in addition to the expenses of selling her property and locating an alternative investment, she may have to pay large capital gains taxes on the transaction, given that she has owned the duplexes for over 20 years. These expenses and taxes could significantly reduce the amount of capital she has to reinvest, and thereby permanently reduce her income and standard of living, even assuming she could find an investment with a comparable rate of return at an equivalent risk.
Finally, as a factual matter, the plurality opinion errs in asserting that greater compulsion exists in the unemployment benefits cases because it is “not. . . realistic” to imagine that a religious believer would, in the absence of unemployment benefits, quit work to avoid a conflict between religious belief and an employer’s demands. (Plur. opn., ante, at p. 1170.) While the plurality opinion may find it unbelievable that any religious person would be so “unrealistic” as to choose fidelity to religious belief over livelihood, *1204history shows that people of faith throughout the centuries have been willing to sacrifice not only their livelihoods but their very lives for their beliefs. Indeed, the religious adherents in Sherbert, supra, 374 U.S. 398, Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. 707, Hobbie v. Unemployment Appeals Comm’n of Fla., supra, 480 U.S. 136, and Frazee v. Illinois Employment Security Dept., supra, 489 U.S. 829, all chose to sacrifice their jobs rather than their religious beliefs even though they were denied unemployment benefits. So much for the plurality opinion’s “realism.”
The second ground on which the plurality opinion seeks to distinguish the unemployment cases is that granting an accommodation to Smith would have an impact on the FEHA rights of prospective tenants Phillips and Randall. (Plur. opn., ante, at pp. 1170-1171, 1174-1175.) In doing so, the plurality opinion conflates the substantial burden inquiry and the compelling interest test. The question at the substantial burden stage is not whether Smith is entitled to an accommodation nor whether, “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.” (Plur. opn., ante, at p. 1175.) Rather, the question is simply what effect the requirements of FEHA have on Smith’s exercise of her religious beliefs. In the words of RFRA, the question is whether Smith is “[a] person whose religious exercise has been burdened” (42 U.S.C. § 2000bb-l(c), italics added), not whether some other person would be adversely affected if Smith were granted an accommodation.
It is in the compelling interest test, as discussed in part VI below, that the FEHA rights of Phillips and Randall are properly taken into account. The benefit that the regulation provides to third parties is one factor that could conceivably strengthen the state’s interest in enforcing its regulation. Nor does anything in Wisconsin v. Yoder (1972) 406 U.S. 205 [32 L.Ed.2d 15, 92 S.Ct. 1526], the sole case relied on by the plurality opinion in its third party impact discussion, suggest that third party impact is a factor to be considered at the substantial burden stage rather than as part of the compelling interest test.
The purpose of the substantial burden inquiry is to determine whether further judicial inquiry is warranted into the state’s justifications for the burden it has imposed on an individual’s exercise of religious beliefs. To consider at the substantial burden stage, as the plurality opinion does, the third party impact of a hypothetical accommodation for the religious adherent subverts this purpose. The FEHA rights of Phillips and Randall are creations of state statute, not fundamental constitutional rights. They are of recent vintage and limited scope. Using them to negate the substantial *1205burden on Smith and thereby avoid reaching the compelling interest test results in a blind deference to state policy judgments infringing religious freedom. Under the plurality opinion’s reasoning, state-created statutory rights of third parties automatically trump the federally created right of religious freedom under RFRA without any judicial inquiry into the importance of those third party rights and the degree to which they would be impacted by an accommodation.
V
In addition to attempting to distinguish the unemployment benefits cases decided by the United States Supreme Court, the plurality rests its conclusion that in this case Smith’s religious beliefs are not substantially burdened on two other “factors”: its contention that Smith can avoid the burden on the exercise of her religious beliefs without violating her beliefs by abandoning the housing rental business (plur. opn., ante, at pp. 1171-1172), and its related contention that the only effect of FEHA is to make the exercise of Smith’s religious beliefs more expensive (plur. opn., ante, atpp. 1172-1174). What the plurality opinion fails to recognize, however, is the fundamental feature distinguishing this case and others in which courts have found a substantial burden from the cases that the plurality opinion relies on to derive its two factors. In the cases relied on by the plurality opinion, the religious adherent could comply with both the religious belief and the government law without abandoning the activity in question. In this case and others in which courts have found a substantial burden on the exercise of religious beliefs, the religious adherent cannot avoid the conflict between religious belief and government law except by abandoning the activity in question. The following review of the case law makes this point clear.
The plurality opinion relies on Braunfeld v. Brown (1961) 366 U.S. 599 [6 L.Ed.2d 563, 81 S.Ct. 1144] (hereafter Braunfeld) to support its conclusion that the state has not substantially burdened Smith’s exercise of her religious beliefs because she could avoid the conflict between FEHA and her religious beliefs by abandoning the housing rental business. This reliance is misplaced for two reasons. First, Braunfeld, supra, 366 U.S. 599, is consistent with the result I reach in this case. In Braunfeld, Orthodox Jewish shopkeepers who for religious reasons closed on Saturdays were also subject to a law compelling them to close on Sundays. They contended that the Sunday-closing law infringed the free exercise of their religious beliefs because, in combination with their religious beliefs, it resulted in closure of their businesses for two days a week (Saturday and Sunday) while other shopkeepers were only closed one day a week (Sunday). The high court rejected their claim.
The Sunday-closing law in Braunfeld, supra, 366 U.S. 599, did not conflict with the religious beliefs of the Orthodox Jewish shopkeepers, *1206because nothing in their religion compelled them to do that which the government prohibited (that is, nothing in their religion required them to be open on Sunday). Accordingly, the burden was not substantial because the Orthodox Jewish shopkeepers could comply with their religious beliefs without violating the law and without abandoning the activity in question. Here, by contrast, if landlord Smith complies with her religious beliefs without abandoning the activity in question she will violate the law, for her religious beliefs require her, contrary to state law embodied in FEHA, to refuse to rent to cohabiting unmarried heterosexual couples.
Second, Braunfeld, supra, 366 U.S. 599, represented only the first step by the United States Supreme Court in the development of its modem free exercise clause jurisprudence, not its full flowering. As I have noted previously, it was not until the subsequent unemployment benefits case of Sherbert, supra, 374 U.S. 398, that the high court first established its modem free exercise clause jurisprudence, and Sherbert went beyond Braunfeld in significant ways. (McConnell, The Origins and Historical Understanding of Free Exercise of Religion, supra, 103 Harv.L.Rev. 1409, 1412 [“. . . Sherbert v. Verner, [is] the first and leading case in the Supreme Court’s modem free exercise jurisprudence .... (Fn. omitted.)”]; Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, supra, 102 Harv.L.Rev. 933, 941 [“[C]ommentators see Sherbert, rather than Braunfeld, as marking the commencement of the contemporary law of free exercise. (Fn. omitted.)”]; Choper, The Rise and Decline of the Constitutional Protection of Religious Liberty, supra, 70 Neb.L.Rev. 651, 655 [“In [Sherbert], the Court abandoned Braunfeld’s distinction between direct and indirect impacts upon religious conduct, and afforded religious action a level of constitutional protection that it had not before enjoyed.”].)4
Nor do the other cases cited by the plurality opinion support its position that Smith’s exercise of her religious beliefs is not substantially burdened by FEHA. (See Swaggart Ministries v. Cal. Bd. of Equalization (1990) 493 U.S. 378 [107 L.Ed.2d 796, 110 S.Ct. 688]; Hernandez v. Commissioner (1989) 490 U.S. 680 [104 L.Ed.2d 766, 109 S.Ct. 2136]; Goodall by Goodall v. *1207Stafford County School Bd. (4th Cir. 1995) 60 F.3d 168; McCarthy v. Hornbeck (D.Md. 1984) 590 F.Supp. 936.) Like the high court’s decision in Braunfeld, supra, 366 U.S. 599, and unlike this case, none of them involved a government rule requiring an individual to act contrary to his or her religious beliefs in order to conduct the activity in question, and none of them presented a conflict between religious belief and secular command that could only be resolved by abandoning the activity in question. The absence of these crucial facts makes those cases of little relevance to the issue we address today, for here the state does require Smith to act contrary to her religious beliefs in conducting her chosen activity of renting her duplex units, and she can avoid that conflict only by abandoning the housing rental business.
Moreover, as explained in part III above, the United States Supreme Court’s pre-Smith, supra, 494 U.S. 872, free exercise decisions on which RFRA is based demonstrate that a conflict between government laws and an individual’s religious beliefs substantially burdens the exercise of religion in cases where the believer cannot avoid the conflict except by abandoning participation in the activity that gives rise to the conflict. Nor does anything in the text of RFRA or its legislative history remotely suggest that Congress intended to limit RFRA’s scope only to cases of religiously compelled activities, and to require religious believers in other cases to abandon the activity in question in order to resolve the conflict between their religious beliefs and the government law. (See Laycock, RFRA, Congress, And The Ratchet (1995) 56 Mont.L.Rev. 145, 151 [“The legislative history is clear that the conduct does not have to be compelled by religion.”]; Laycock & Thomas, Interpreting the Religious Freedom Restoration Act, supra, 73 Tex.L.Rev. 209, 232-233.)
A number of cases decided since Congress enacted RFRA in 1993 further demonstrate that a conflict between a religious belief and a government rule that the adherent could avoid only by abandoning the activity in question amounts to a substantial burden on religion. In Rourke v. New York State Department of Correctional Services (N.D.N.Y. 1995) 915 F.Supp. 525, 543, a Native American correctional officer let his hair grow long as required by his religious beliefs but contrary to his government employer’s rules. His religious beliefs did not compel him to work as a correctional officer; thus, as here, he could have avoided the conflict between his religious beliefs and the government mandate by abandoning the activity that gave rise to the conflict. The federal trial court nonetheless held that the employer’s rule against long hair substantially burdened the exercise of the Native American correctional officer’s religious beliefs. (Ibid.)
In another case decided since congressional enactment of RFRA in 1993, the State of Wisconsin required that slow-moving vehicles like horse-drawn *1208buggies display a fluorescent orange triangle to warn motorists of their presence. The Amish religion does not compel the Amish to use horse-drawn buggies to travel on the public highways. Their religion does require that, if they chose to do so, they not affix fluorescent orange triangles to their buggies, in keeping with their avoidance of colorful and worldly symbols. The Wisconsin Court of Appeals held that under RFRA the state’s requirement substantially burdened the exercise of religion by the Amish, even though their beliefs did not compel the activity that brought their beliefs into conflict with the law and they could avoid the conflict by abandoning the activity. (State v. Miller (1995) 196 Wis.2d 238 [538 N.W.2d 573, 577], review granted (Wis. 1995) 540 N.W.2d 200; see also State v. Hershberger (Minn. 1989) 444 N.W.2d 282, 287, judg. vacated and cause remanded (1990) 495 U.S. 901 [109 L.Ed.2d 282, 110 S.Ct. 1918], judgment reinstated after remand (Minn. 1990) 462 N.W.2d 393 [applying the substantial burden test in a pre-RFRA case, the Minnesota Supreme Court reached the same conclusion].) Here, Smith’s situation is no different, for the conduct compelled by her religious beliefs conflicts with the government’s laws, and she could only avoid the conflict by abandoning the activity in question.
Two zoning cases decided under RFRA also demonstrate that a substantial burden exists if the only way of avoiding a conflict between religious belief and governmental mandate is to abandon the activity in question. These two cases held that particular zoning regulations prohibiting religious uses of property were substantial burdens on the exercise of religion, notwithstanding that the congregations owning the property could have avoided the conflict by selling the property and acquiring other property zoned for the uses they proposed: The Jesus Center v. Farmington Hills Zoning Board of Appeals (1996) 215 Mich.App. 54 [544 N.W.2d 698]; and Western Presbyterian Church v. Bd. of Zoning Adj. (D.D.C. 1994) 862 F.Supp. 538, S45-546.5 *1209(Contra, Daytona Rescue Mission, Inc. v. City of Daytona Beach (M.D.Fla. 1995) 885 F.Supp. 1554, 1560.)6
Finally, an example may serve to illustrate the untenability of the plurality opinion’s position. The plurality concludes in this case that landlord Smith’s exercise of her religious beliefs is not substantially burdened by FEHA because she can avoid the conflict “without violating her beliefs or threatening her livelihood” (plur. opn., ante, at p. 1175) by abandoning the housing rental business, because FEHA is a religion-neutral law that, at most, makes Smith’s “religious exercise more expensive” (ibid.), and because granting Smith an accommodation “would necessarily impair the rights and interests of third parties” (id. at p. 1176). Under this reasoning, a law that all obstetricians must perform abortions when requested by their patients would not substantially burden the exercise of religion by a Catholic obstetrician who objects to abortion, and therefore would not be subject to any scrutiny under RFRA. Because Catholics need not be doctors and doctors need not be obstetricians, the obstetrician could avoid the conflict “without violating [the obstetrician’s] beliefs or threatening [the obstetrician’s] livelihood” (plur. opn., ante, at p. 1175) by abandoning obstetrics and switching to another medical specialty. The law is a religion-neutral one that, at most, might make the obstetrician’s “religious exercise more expensive” (ibid.) because of the expenses of switching specialties. To grant the obstetrician an accommodation “would necessarily impair the rights and interests of third parties” (id. at p. 1176), the obstetrician’s patients who have a constitutional right to abortion. Notwithstanding the plurality opinion’s reasoning, however, I have no doubt that Congress did not intend that such a law would escape all scrutiny under RFRA.
VI
My conclusion that in this case the state has substantially burdened landlord Smith’s exercise of her religious beliefs does not mean that she is automatically entitled to an exemption from the requirement in state statutory law (FEHA) that she not discriminate on the basis of marital status. Under federal law (RFRA), a religious believer does not establish the right to an exemption simply by showing that the government has substantially *1210burdened his or her religious beliefs. Satisfying RFRA’s “substantial burden” threshold only shifts to the government the duty of justifying the substantial burden it has imposed on the believer’s religious beliefs.
Hence, because requiring Smith to rent to cohabiting unmarried heterosexual couples substantially burdens her religious beliefs, it becomes necessary to address the question of whether the state has justified that requirement by proving it has a compelling governmental interest and that it has no less restrictive means for achieving that interest. As the text of RFRA states, the government (here, the Commission) must “demonstratef] that application of the burden to the person [here, Smith]— HD (1) is in furtherance of a compelling governmental interest; and [^0 (2) is the least restrictive means of furthering that compelling governmental interest.” (42 U.S.C. § 2000bb-1(b), italics added.) I shall examine each of these requirements in succession.
On this record, it is questionable whether the Commission has carried its burden of proving there is a compelling governmental interest in eliminating discrimination against unmarried cohabiting heterosexual couples.7 The Commission has failed to present any significant evidence on this point. Instead, the Commission argues that all forms of discrimination listed in FEHA and the Unruh Civil Rights Act, simply by being included in those statutes, are necessarily equally invidious, and that the state has an equally compelling interest in eliminating all of them.
This facile equation of all forms of discrimination simply because they are recited side by side in a statute is supported neither by history nor present social reality. There is no recent history or present practice of invidious discrimination against unmarried cohabiting heterosexual couples that is remotely comparable to the disgraceful and unhappy history of racial, ethnic, and gender discrimination. (See Walnut Creek Manor v. Fair Employment & Housing Com., supra, 54 Cal.3d 245, 276 (dis. opn. of Kennard, J.) [discussing persistence of racially and ethnically “[segregated housing patterns, which frequently confine minority groups to substandard housing”].) For that reason, deciding there is no compelling interest in ameliorating housing *1211discrimination against unmarried heterosexual couples would not mean that there is no compelling interest in eliminating other forms of housing discrimination, such as racially motivated discrimination, even if based on religious beliefs. (Cf. Bob Jones University v. United States (1983) 461 U.S. 574, 604 [76 L.Ed.2d 157, 181, 103 S.Ct. 2017] [eliminating racial discrimination in education held to be a compelling governmental interest that justified the substantial burden that denying tax benefits to racially discriminatory university imposed on the religious organization that ran the university].)
Unmarried cohabiting heterosexual couples were relatively rare until the 1960’s; once they appeared in significant numbers, whatever housing and employment barriers existed for them crumbled rapidly and almost completely. Twenty years ago, this court noted “the prevalence of nonmarital relationships in modem society and the social acceptance of them" and observed that moral considerations against cohabitation by unmarried heterosexuals “have apparently been so widely abandoned by so many.” (Marvin v. Marvin (1976) 18 Cal.3d 660, 683-684 [134 Cal.Rptr. 815, 557 P.2d 106].) Furthermore, in the housing arena, the Legislature has authorized both public and private universities to discriminate in housing on the basis of marital status, permitting them to offer housing reserved for married students. (Gov. Code, § 12995, subd. (a)(2).) It is hard to see how the state can claim to have a compelling interest in eliminating from the private sector a form of discrimination that it expressly authorizes and practices in its own operations.
Other courts have also questioned whether eliminating housing discrimination against unmarried heterosexual couples has been shown to be a compelling governmental interest. (Attorney General v. Desilets, supra, 418 Mass. 316, 327 [636 N.E.2d 233, 239] [“marital status discrimination is not as intense a State concern as is discrimination based on certain other classifications”]; State by Cooper v. French (Minn. 1990) 460 N.W.2d 2, 10 [finding that state lacked a compelling interest in eliminating housing discrimination against unmarried heterosexual couples]; see also Swanner v. Anchorage Equal Rights Comm’n (1994)_U.S._,_[130 L.Ed.2d 368, 369, 115 S.Ct. 460, 461] [Justice Thomas, dissenting from the denial of certiorari: “I am quite skeptical that Alaska’s asserted interest in preventing discrimination on the basis of marital status is ‘compelling’ enough to satisfy [the] stringent standards [of Sherbert, supra, 374 U.S. 398, and Wisconsin v. Yoder, supra, 406 U.S. 205].”].)
One scholarly commentary has criticized the assertion made in this very case that eliminating housing discrimination against unmarried heterosexual *1212couples is a compelling governmental interest: “California authorities are arguing . . . that states have a compelling interest in forcing conscientiously objecting landlords to rent apartments to unmarried couples. [They do not] mention[] any evidence that unmarried couples were actually having difficulty finding housing; without such evidence, this claim of compelling interest is utterly frivolous. The stakes are entirely symbolic: sex outside of marriage has gone from misdemeanor to compelling interest in one generation, and religious believers who resist the change must be crushed. ...[<][] If any such deferential view of compelling interest is read into RFRA, the congressional goal of protecting religious practice will be wholly defeated.” (Laycock & Thomas, Interpreting the Religious Freedom Restoration Act, supra, 73 Tex.L.Rev. 209, 223-224.)
Ultimately, however, it is unnecessary to resolve the question of whether in this case the Commission has carried its burden of demonstrating that there is a compelling governmental interest in prohibiting housing discrimination against unmarried heterosexual couples or to address the privacy interests of Phillips and Randall that have also been advanced to justify the burden on Smith’s religious beliefs. Even if the interest in preventing housing discrimination against unmarried cohabiting heterosexual couples were compelling, to prevail the Commission would have to demonstrate that the state could not advance this interest by a less restrictive means that would exempt Smith and other religious objectors from renting to such couples. This the Commission has not done. It has not shown that excepting landlords like Smith from housing laws would so reduce the stock of housing available to unmarried heterosexual couples, or otherwise be so infeasible, as to defeat or even substantially impair its goal of providing equal housing opportunities to unmarried heterosexual couples.
The Commission has not presented any evidence that unmarried heterosexual couples would face significant obstacles in finding housing if religiously based exemptions were granted. Both RFRA, which Congress enacted in 1993, and the case law to which it refers make clear that it is the government’s burden to produce evidence that there are no less restrictive alternatives to denying exemptions to religious objectors. Mere speculation is not enough. Congress has specifically stated in RFRA that the government must “demonstrate[] that application of the burden to the person— [<][]... [U ... is the least restrictive means of furthering th[e] compelling governmental interest” (42 U.S.C. § 2000bb-l(b)); the statute defines “demonstrateQ” as meaning “meet[] the burdens of going forward with the evidence and of persuasion” (42 U.S.C. § 2000bb-2(3)).
The high court’s decisions in this area illustrate the government’s burden in proving that there are no less restrictive alternatives. In Thomas v. Review *1213Bd., Ind. Empl. Sec. Div., supra, 450 U.S. 707, 718 [67 L.Ed.2d 624, 634], the state unemployment compensation fund had argued that providing unemployment benefits to religious objectors who quit their jobs would result in “widespread unemployment and [a] consequent burden on the fund.” The high court rejected this “what if everybody did it?” argument on the ground that “[t]here is no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create ‘widespread unemployment,’ or even to seriously affect unemployment.” (Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at p. 719 [67 L.Ed.2d at p. 634].) Earlier, in Sherbert, supra, 374 U.S. at page 407 [10 L.Ed.2d at p. 972], the court had likewise rejected for lack of evidence the “possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work.”
Frazee v. Illinois Employment Security Dept., supra, 489 U.S. 829, was another unemployment benefits case, and the lower court had upheld the denial of the religious objector’s claim to benefits on the ground that “ ‘chaos would result’ ” if, like the religious objector in that case, all Americans stopped working on Sundays for religious reasons. (Id. at p. 835 [103 L.Ed.2d at p. 920].) The United States Supreme Court rejected this dire prophecy as lacking in evidentiary support. Quoting the passage from Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at page 719 [67 L.Ed.2d at page 634], set forth above, the court concluded instead that “[a]s was the case in Thomas . . . there is nothing before us in this case to suggest that Sunday shopping, or Sunday sporting, for that matter, will grind to a halt as a result of our decision today.” (Frazee v. Illinois Employment Security Dept., supra, 489 U.S. at p. 835 [103 L.Ed.2d at p. 921].) So too, here, there is no evidence that granting religiously based exemptions to Smith and others like her would seriously deplete the stock of housing available to unmarried heterosexual cohabitants.
Moreover, in this case the religious beliefs of landlord Smith and others similarly situated are at odds with their economic self-interest, further reducing the probability that religious exemptions would seriously affect the housing market for unmarried heterosexual couples. In the case of religious objections to a tax or a claim for a religious exemption that expands a religious believer’s entitlement to government benefits, religious belief aligns with economic self-interest. This confluence of religious and economic motives may in some cases encourage phony claims of religious conflict. Here, by contrast, Smith’s sincerely held religious beliefs are contrary to her economic self-interest, for by excluding unmarried heterosexual couples she is artificially reducing demand, and thus the price she can *1214command, for her rental housing. This further reduces the likelihood that there will be a mass movement of landlords seeking to refuse rentals on religious grounds to unmarried heterosexual couples.
Nor would it be administratively infeasible to grant exemptions to Smith and others similarly situated. Like an unemployment benefits system, California’s housing discrimination laws create an administrative mechanism for individualized enforcement that is capable of assessing on a case-by-case basis claims of a federal statutory entitlement under RFRA to a religious exemption. Unemployment benefits systems typically provide for an administrative procedure by which the benefits claimant can be heard and present evidence, and by which the agency then renders an individualized determination of the claimant’s eligibility for benefits. (E.g., Frazee v. Illinois Employment Security Dept., supra, 489 U.S. at pp. 830-831 [103 L.Ed.2d at pp. 917-918]; Hobbie v. Unemployment Appeals Comm’n of Fla., supra, 480 U.S. at pp. 138-139 [94 L.Ed.2d at pp. 195-196]; Sherbert, supra, 374 U.S. at pp. 399-401 [10 L.Ed.2d at pp. 967-969].) California’s housing antidiscrimination laws are enforced by an analogous administrative procedure that provides for administrative hearings and an individualized determination of whether the landlord has discriminated in violation of the law. (Gov. Code, §§ 12980-12981.) A landlord who contends that religious beliefs prohibit him or her from renting to unmarried heterosexual couples can raise a RFRA defense in the hearing process. As occurred in this case, the hearing officer can take evidence and determine the sincerity of the landlord’s professed beliefs, whether there is a conflict between those beliefs and the fair housing laws, whether the state has proven a compelling interest in eliminating the discriminatory conduct in question, and whether the state has shown there is no less restrictive alternative that would exempt the landlord from compliance.
Because the Commission has failed to show that there is no less restrictive alternative to enforcing California’s housing antidiscrimination law, FEHA, against Smith (or otherwise stated, the Commission has not shown that it is infeasible to exempt Smith from FEHA’s requirement that she rent to unmarried heterosexual couples), the congressional mandate in RFRA precludes the Commission from applying the state statute, FEHA, to Smith. (42 U.S.C. § 2000bb-l(a)-(c).) Like the plurality opinion, I find it unnecessary to decide whether the Unruh Civil Rights Act provides unmarried couples with a similar protection against discrimination, for even if it does, RFRA similarly bars its application to Smith. Also, given my conclusion that RFRA *1215prohibits the Commission from applying FEHA to Smith, I need not address Smith’s defenses under the federal and state Constitutions.8
VII
Finally, it is appropriate to discuss briefly the issue of the constitutionality of RFRA. In enacting RFRA, Congress relied on its power under section 5 of the Fourteenth Amendment to “enforce, by appropriate legislation” the constitutional rights secured by that amendment, which include freedom of religion. (Sen.Rep. No. 103-111, 1st Sess., pp. 13-14, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at pp. 1892, 1903.) Some scholars are of the view that RFRA is unconstitutional, asserting that Congress has exceeded its powers under section 5 of the Fourteenth Amendment by requiring in RFRA that states defer to the free exercise of religion to a greater degree than is constitutionally required under Smith, supra, 494 U.S. 872. (See, e.g., Conkle, The Religious Freedom Restoration Act: The Constitutional Significance of an Unconstitutional Statute (1995) 56 Mont.L.Rev. 39; Hamilton, The Religious Freedom Restoration Act: Letting the Fox Into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment (1994) 16 Cardozo L.Rev. 357; contra, Laycock, RFRA, Congress, And The Ratchet, supra, 56 Mont.L.Rev. 145 [explaining why RFRA is constitutional].)
Quite recently, however, the federal Court of Appeals for the Fifth Circuit has upheld the constitutionality of RFRA. (Flores v. City of Boerne, Tex. (5th Cir. 1996) 73 F.3d 1352.) Three other courts have also reached this conclusion. (State v. Miller, supra, 538 N.W.2d 573, 577; Sasnett v. Department of Corrections (W.D.Wis. 1995) 891 F.Supp. 1305, 1315-1320; Belgard v. State of Hawaii (D.Hawaii 1995) 883 F.Supp. 510, 512-517.) Because no party has raised the issue, it is unnecessary to address in this case whether RFRA is a permissible exercise of Congress’s authority under section 5 of the Fourteenth Amendment.
Randall acknowledges that RFRA is constitutional as a general matter but argues RFRA is unconstitutional as applied to this case if its application *1216would exempt Smith from complying with the housing antidiscrimination mandate of FEHA and the Unruh Civil Rights Act. Randall claims that any such exemption cannot diminish Randall’s rights under state and, he asserts, federal statutory law to be free of discrimination. This argument is meritless. Congress can enact a statute (here, RFRA) to diminish or qualify rights it has created in prior federal statutes just as it could repeal those statutes directly. Nor is there any merit to Randall’s argument that a law passed by Congress under section 5 of the Fourteenth Amendment cannot impinge on state laws to the contrary. If, as Randall concedes, Congress has the constitutional power to enact RFRA, then under the supremacy clause of the federal Constitution (U.S. Const., art. VI, cl. 2), RFRA prevails over state law to the contrary.
Justice Mosk relies on an altogether different ground to assert that RFRA is unconstitutional. He takes the view that under RFRA a court deciding whether the government has substantially burdened the exercise of a person’s religious beliefs must determine to what degree the religious conduct in question is central to the person’s religious beliefs, and that such an inquiry is constitutionally forbidden. (Conc. opn. of Mosk, J., ante, at pp. 1181-1182, 1190.) RFRA, however, requires no such inquiry. Nothing in the text of RFRA or in its legislative history shows any indication that Congress intended that the substantial burden test apply only to religious conduct that is central to an adherent’s beliefs. To the contrary, Congress rejected any centrality inquiry by adopting the pre-Smith, supra, 494 U.S. 872, free exercise clause case law. That case law had unequivocally rejected any inquiry into the centrality of religious practices in free exercise clause cases. (Hernandez v. Commissioner, supra, 490 U.S. 680, 699 [104 L.Ed.2d 766, 786] [applying the substantial burden test while observing that “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith”]; United States v. Lee, supra, 455 U.S. 252, 257 [71 L.Ed.2d 127, 132]; Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. 707, 715-716 [67 L.Ed.2d 624, 632].)
Justice Mosk’s argument rests on a footnote in the majority opinion in Smith, supra, 494 U.S. 872, 887, footnote 4 [108 L.Ed.2d 876, 891]. That footnote, however, does not purport to discuss the meaning of “substantial burden” established in cases prior to Smith, and nowhere asserts that those cases had adopted an inquiry into the centrality of the adherent’s religious beliefs. Rather, the footnote contends that it would be “unworkable” to apply the compelling interest test without also adopting a centrality test to limit the instances to which the compelling interest test applied. Elsewhere, the Smith court expressly acknowledged that its prior case law, the case law adopted by Congress in RFRA, had rejected any centrality test: “Repeatedly and in *1217many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” (Smith, supra, 494 U.S. 872, 887 [108 L.Ed.2d 876, 891].) More fundamentally, regardless of the Smith court’s views on the feasibility of a compelling interest test without a threshold centrality inquiry, in enacting RFRA Congress was not required to adopt those views. Nor did it, for, as discussed above, its incorporation of pre-Smith case law shows that Congress rejected any centrality inquiry.
Conclusion
“The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” (Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in Everson v. Board of Education (1947) 330 U.S. 1, 64 [91 L.Ed. 711, 748, 67 S.Ct. 504, 168 A.L.R. 1392] (appen. to dis. opn. of Rutledge, J.).)
The freedom that James Madison championed—the freedom not only to hold but also to freely exercise religious beliefs—is a freedom older than our nation. For centuries, many have come to our shores seeking it. Our nation was founded by a people who valued it, and who enshrined it in the Constitution. In protecting this fundamental liberty by its 1993 enactment of the Religious Freedom Restoration Act, Congress expressly acted in the tradition of “the framers of the Constitution, [who] recogniz[ed] free exercise of religion as an unalienable right, [and] secured its protection in the First Amendment to the Constitution.” (42 U.S.C. § 2000bb(a)(l).)
Our society recognizes and fosters other values as well, however. Especially in recent years, our society has taken a strong stand against many forms of invidious discrimination. To balance the sometimes conflicting values of religious liberty and freedom from discrimination is not an easy task. In enacting RFRA, Congress struck the balance by requiring that a religious adherent be exempted from an antidiscrimination law that conflicts with the adherent’s religious beliefs unless the government shows that application of the antidiscrimination law to the adherent and others similarly situated furthers a compelling governmental interest that cannot be advanced by any less restrictive alternative.
Applying to this case the congressional mandate expressed in RFRA, I would hold that in requiring that Smith comply with state statutory law by *1218renting to unmarried heterosexual couples, the state substantially burdens Smith’s religious beliefs by compelling her to do that which her beliefs forbid. On the record it created in this case, the state has failed to demonstrate that there are no alternatives that would allow it to pursue its goal of abolishing discrimination against unmarried heterosexual couples while granting case-by-case exemptions to landlords like Smith with religious objections. Accordingly, I would affirm the judgment of the Court of Appeal granting the writ of mandate.
The breadth of support for RFRA was striking. Supporters included a broad coalition of religious groups as well as a range of other groups including the American Bar Association, American Civil Liberties Union, Americans United for Separation of Church and State, the Christian Legal Society, and the Home School Legal Defense Association. (Laycock & Thomas, Interpreting the Religious Freedom Restoration Act (1994) 73 Tex.L.Rev. 209, 210 & fn. 9.) RFRA passed the House of Representatives without opposition, and only three senators voted against it. (139 Cong. Rec. H2356-03, H2363 (daily ed. May 11, 1993); 139 Cong. Rec. H8713-04, H8715 (daily ed. Nov. 3, 1993); 139 Cong. Rec. S14461-01, S14471 (daily ed. Oct. 27, 1993).)
In analyzing the pre-Smith, supra, 494 U.S. 872, free exercise decisions clause of the United States Supreme Court, Professor Tribe likewise has concluded that a conflict between a religious belief and a governmental command amounts to a substantial burden. (Tribe, American Constitutional Law (2d ed. 1988), § 14-12, p. 1242 [“In order to gain the exemption, the claimant must show (1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the state requirement.” (Italics added.)].)
Although the landlord’s claim of an exemption in the Massachusetts case arose under the Massachusetts Constitution, the Massachusetts high court adopted and applied the substantial burden standard of pre-Smith, supra, 494 U.S. 872, federal case law discussed in this section of my opinion. (Attorney General v. Desilets, supra, 418 Mass. 316, 321-323 [636 N.E.2d 233, 236-237].) The court expressly noted that the standard it applied was the same as that of RFRA. (Id. at p. 322, fn. 5 [636 N.E.2d at p. 236].)
Professor Tribe has described in these terms the ways in which Sherbert, supra, 374 U.S. 398, superseded Braunfeld, supra, 366 U.S. 599: “Two years after Braunfeld, [in Sherbert] the Supreme Court took a major step beyond these precedents, extending and solidifying the principles latent in its previous holdings. . . . [H Sherbert went well beyond the precedents in two important ways, the combination of which made the free exercise clause a vastly more powerful instrument for generating government accommodations of religion. [<HJ First, Sherbert rejected Braunfeld’s distinction between direct and indirect burdens . ... PI ... [H Sherbert’s second important doctrinal advance was in formally adopting the least restrictive alternative-compelling state interest mode of analysis in a free exercise context.” (Tribe, American Constitutional Law, supra, § 14-13, pp. 1255-1256, fns. omitted.)
These cases appear consistent with congressional intent. During the Senate floor debates, RFRA’s cosponsor Senator Hatch pointed to a pre-RFRA zoning exclusion case, Cornerstone Bible Church v. City of Hastings (8th Cir. 1991) 948 F.2d 464, 472, which had held under the Smith, supra, 494 U.S. 872, standard of lessened scrutiny that the zoning regulations in question did not infringe the congregation’s right to the free exercise of religion, as an example of the “serious[] ero[sion]” of religious freedom that RFRA would correct. Zoning regulations were also singled out in a similar vein in the remarks of cosponsor Senator Kennedy, in the House debates, and in the Senate Report. (Remarks of Sen. Hatch, 139 Cong. Rec. S14350-01, S14353 (daily ed. Oct. 26,1993); remarks of Sen. Kennedy, 139 Cong. Rec. S14350-01, S14351 (daily ed. Oct. 26, 1993); remarks of Rep. Schumer, 139 Cong. Rec. H2356-03, 2360 (daily ed. May 11, 1993); remarks of Rep. Hoyas, id. at p. 2361; remarks of Rep. Maloney, id. at p. 2362; Sen. Rep. No. 103-111, 1st Sess., p. 8, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at pp. 1892, 1897; see also written testimony of RFRA’s original sponsor, Rep. Solarz, in hearings on H.R. No. 2797 before the House Com. on the Judiciary, Subcom. on Civil and Const. Rights, 102d Cong., 2d Sess., sec. 99, at p. 122 (1992); Laycock, RFRA, Congress, And The Ratchet, supra, 56 Mont.L.Rev. 145, 146, 151.)
Two decisions predating Smith, supra, 494 U.S. 872, further illustrate that conflicts between religious belief and government law are substantial burdens if they can only be avoided by abandoning the activity in question. In each case, laws requiring photographs on driver’s licenses substantially burdened religious adherents whose beliefs forbade graven images, even though they could have avoided the conflict by not driving. (Quaring v. Peterson (8th Cir. 1984) 728 F.2d 1121, 1125, affd. by an equally divided court (1985) 472 U.S. 478 [86 L.Ed.2d 383, 105 S.Ct. 3492]; Bureau of Motor Vehicles v. Pentecostal House of Prayer, Inc. (1978) 269 Ind. 361, 367-368 [380 N.E.2d 1225, 1228-1229].)
The issue raised by this case is the legitimacy of religiously motivated housing discrimination against unmarried heterosexual couples. My discussion of whether the state has carried its heavy burden of demonstrating a compelling state interest addresses only that issue. Analysis of whether there is a compelling interest in eliminating discrimination against homosexual couples may well involve different considerations; homosexual couples have been subject to a quite different, and continuing, history of discrimination; also, their unmarried status is not a matter of voluntary choice. (See Gay Rights Coalition v. Georgetown Univ. (D.C.App. 1987) 536 A.2d 1, 31-38 [determining under the District of Columbia Human Rights Act that there is a compelling governmental interest in eradicating discrimination against homosexuals].)
Although Justice Baxter similarly concludes that in this case the Commission has substantially burdened the exercise of Smith’s religious beliefs, he would remand the case for the Commission to apply the compelling governmental interest test instead of deciding whether the compelling governmental interest test requires that the state grant Smith an exemption. In my view, there is no necessity to remand this case. As discussed above, RFRA adopted the free exercise clause legal standard that had existed prior to Smith, supra, 494 U.S. 872. Because the hearing in this case occurred before Smith was decided, the standard adopted by RFRA was in effect at that time. Both the parties and the administrative law judge were fully aware of this standard, and the parties addressed it in presenting their evidence and argument. Application of the law to the record in this case is a task that this court can perform without remanding to the Commission.