Dissenting.— The California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) on its face prohibits a landlord from discriminating against any individual on the basis of “marital status.” (Gov. Code, § 12955, subds. (a), (d).) As will be explained, notwithstanding evidence of contrary original legislative intent, the statute has consistently been interpreted as prohibiting discrimination in housing accommodations against unmarried cohabiting heterosexual couples. Under settled principles of statutory construction, that interpretation must likewise obtain in this case.
The more difficult question presented is whether Congress’s enactment in 1993 of the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq., hereafter RFRA)—a federal statutory guarantee of religious liberty expressly and retroactively made applicable to cases such as this one—affords the landlord in this case a basis upon which to seek an individualized exemption from compliance with FEHA’s prohibition against housing discrimination based on marital status, on the ground that to require her to rent an apartment to an unmarried cohabiting heterosexual couple would conflict with her sincerely held, fundamental religious beliefs.
Evelyn Smith, a widow who owns two duplexes (comprising four rental apartments) in Chico, and who derives her primary source of income from the rental units in question, refused to rent a vacant unit to an unmarried heterosexual couple, contrary to the aforementioned housing discrimination prohibition of FEHA. It is not contested that Smith so acted out of her firm and sincerely held Christian beliefs. The lead opinion effectively concludes that under no circumstance can the state statutory requirement that Smith offer to rent the vacant unit to the unmarried couple be found to “substantially burden” her federal statutorily guaranteed fundamental right to free exercise of her religion. It is further concluded in the lead opinion that even under the mandate of RFRA, California need not demonstrate a “compelling state interest” in furtherance of the housing discrimination provision here in issue before refusing to grant Smith an exemption from it, notwithstanding *1219the patent conflict between that state statutory provision and Smith’s fundamental, federal statutorily guaranteed free exercise rights. Nor, under the lead opinion’s rationale, need the state meet its burden under RFRA of demonstrating that FEHA’s blanket prohibition against housing discrimination on the basis of marital status, as applied to Smith, is “the least restrictive means” by which to implement this particular antidiscrimination policy.
In short, the lead opinion concludes, purportedly under the balancing test mandated by RFRA and retroactively applicable to this case, that the state policy of prohibiting housing discrimination on the basis of marital status must always prevail, as a matter of law, over a landlord’s right of free exercise of his or her religion—even where that policy is shown to conflict with the landlord’s sincerely held religious beliefs. And in this case, if Smith does not like it, the plurality invites her to get out of the apartment rental business by selling her duplexes and “redeploying . . . [her] capital in other investments.” (Lead opn., ante, at p. 1170.)
I dissent. I would hold that the state must meet its burden under the mandate of RFRA of applying the compelling interest test to the particular facts of this case to determine whether the FEHA provision in question “substantially burdens” Smith’s federal statutory right to free exercise of her religion, thereby entitling her to seek an individualized exemption from FEHA’s requirement that she rent to the unmarried couple in question. Fundamentally, under the supremacy clause of the federal Constitution (U.S. Const., art. VI, cl. 2), the provisions of RFRA must prevail over state law to the contrary.
On the record before us, the state has never directly been put to its burden of demonstrating, upon proper application of RFRA’s balancing test, that FEHA’s blanket prohibition against housing discrimination based on marital status is the “least restrictive means” of implementing a “compelling governmental interest” in furtherance of the statute’s purpose, or whether petitioner is instead entitled to an individualized exemption from that provision based on the particular facts of this case. The Fair Employment and Housing Commission (Commission) exercised its power not to adopt the proposed decision of the administrative law judge who heard the matter, opted instead to hear the case itself on the existing record (Gov. Code, § 11517, subd. (c)), and ultimately concluded it had no power to address Smith’s constitutional *1220arguments in view of article III, section 3.5, of the California Constitution.1 All of these proceedings were conducted during the years 1988 and 1989, well before RFRA’s enactment and, indeed, prior to the high 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], which prompted Congress to enact the remedial legislation. Because the specific procedures outlined in RFRA were not in effect at the time the Commission heard this case and found petitioner in violation of FEHA, I would reverse the judgment of the Court of Appeal with directions to remand this matter to the Commission for further proceedings consistent with the mandate of RFRA.
I
Petitioner Evelyn Smith (plaintiff below), a widow, is a member of the Bidwell Presbyterian Church in Chico. She owns two duplexes in Chico, comprising four rental units, the rents from which provide her primary source of income. Because of her religious conviction that sex outside of marriage is a sin, she refuses to rent to unmarried couples. Smith informs couples interested in renting her units that she prefers to rent to married couples. In all other respects her rental practices conform to the letter of the law. As the Commission found, “[Petitioner] has rented her units to single, divorced and widowed persons. [She] has no religious objection to renting to people who are single, divorced, widowed or married. [She] would not rent to anyone who engages in sex outside of marriage, whether they are single, divorced, widowed or married. [Petitioner] rents her units to people without regard to their race, color, national origin, ancestry, or physical handicap. [She] 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. [Petitioner] has rented her units to males and females and does not discriminate on the basis of sex.”
Complainants Kenneth Phillips and Gail Randall (real parties in interest below) are an unmarried couple. When they expressed an interest in renting one of petitioner’s duplex units, petitioner informed them, as was her custom, that she preferred renting to married couples. Complainants then lied to Smith, representing to her that they were married. Petitioner agreed to *1221rent one of the duplex units to them, and complainants tendered a $150 deposit to secure it. Complainant Randall also falsely signed the lease agreement, “Gail Phillips.”
Before moving into the duplex, complainant Phillips informed petitioner that in actuality he and Randall were not married. Petitioner told Phillips she could not rent to an unmarried cohabiting couple because that would violate her religious beliefs. She refused to rent to complainants and returned their security deposit. Petitioner would have rented the unit to complainants had they been married.
Petitioner refused to rent to complainants because of her religious conviction that sex outside of marriage is sinful; she believes she would be committing a sin if she rented to people who engage in nonmarital sex. Petitioner explained: “I believe it’s a sin to have sex out of marriage, and if I rent to [complainants] I’m also contributing to their sin and it’s a sin for me. I believe that I have to answer [for] that as long as I know it’s a sin and if I am assisting them in committing the sin, then I’m guilty, also.”
Randall and Phillips each filed separate complaints against petitioner with the Commission. The matter was heard by an administrative law judge. Petitioner argued that 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 in the first instance. She further argued that to require her to rent to an unmarried couple over her religious objections would violate her free exercise rights under the federal and state Constitutions. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4.) The administrative law judge rejected both arguments and issued a proposed decision in favor of Randall and Phillips.
The Commission thereafter exercised its discretion not to adopt the proposed decision, and to instead hear the case itself on the existing record. (Gov. Code, §11517, subd. (c).) The Commission concluded it had no power to address Smith’s constitutional arguments in view of the provisions of article III, section 3.5, of the California Constitution. (See ante, at p. 1219, fn. 1.) It found that FEHA’s prohibition of discrimination based on “marital status” does encompass discrimination against unmarried couples, and that the Unruh Civil Rights Act further prohibits all forms of arbitrary discrimination by business establishments, including discrimination against *1222unmarried couples. The Commission ultimately ruled in favor of complainants, finding Smith had violated Government Code sections 12955, subdivisions (a) and (d),2 Civil Code section 51, and Government Code section 12948.3
The Commission awarded complainants out-of-pocket and emotional distress damages totalling $954.4 Petitioner was ordered to “cease and desist” marital status discrimination. She was further ordered to post in her rental units for a period of 90 days a notice announcing that she had been adjudicated in violation of FEHA for refusing to rent to prospective tenants because they were an unmarried couple. She was also ordered to permanently post in her rental units a notice to rental applicants of their rights and remedies under FEHA generally, and specifically with regard to discrimination against unmarried couples. Petitioner was ordered to personally sign both notices, and to provide copies to each person thereafter who expressed interest in renting from her.
*1223Smith sought a petition for writ of mandate in the Court of Appeal. That court granted relief and reversed the ruling of the Commission. The Court of Appeal implicitly held that unmarried couples such as complainants came within the protection of the housing discrimination provision here in issue in the first instance. (Gov. Code, § 12955, subd. (a).) The court went on to hold that Smith’s free exercise rights under the federal and state Constitutions (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4) took precedence over the state statute’s commands. It is noteworthy that the Court of Appeal filed its opinion in this case in May of 1994, only six months after the date on which RFRA became effective (November 16, 1993). (42 U.S.C. § 2000bb-3(a).) Although the Court of Appeal purported to invoke the provisions of RFRA in partial support of its holding, the appellate court did not place principal reliance on that federal statute, and instead reached its conclusions under the case law interpreting the free exercise clauses of the federal and state Constitutions.
II
At the threshold, I concur in the plurality’s conclusion that the provisions of FEHA with which we are here primarily concerned—Government Code section 12955, subdivision (a)—must be construed as prohibiting discrimination in housing accommodations against unmarried cohabiting heterosexual couples. I would observe, however, that the Legislature’s enactment of the pertinent statutory amendments may not have been originally intended to so broadly extend the proscription against housing discrimination to all such persons.
The language prohibiting discrimination “because of . . . marital status” (Gov. Code, § 12955, subd. (a)) derived from the California Fair Housing Act of 1963, commonly known as the Rumford Fair Housing Act of 1963 (Rumford Act) (former Health & Saf. Code, § 35720).5 As originally enacted, the Rumford Act did not refer to “marital status.” (Stats. 1963, ch. 1853, § 2, p. 3824.) After several failed attempts in the Legislature to amend the act to add prohibitions against housing discrimination on the basis of “sex” and “marital status,” among other statuses, the Legislature, during its 1974-1975 Regular Session, enacted Senate Bill No. 844, which amended the Rumford Act to add both “sex” and “marital status” to the list of prohibited grounds of housing discrimination without any further definition of those terms. Thus, as of 1975, the Rumford Act barred housing discrimination on the basis of “race, color, religion, sex, marital status, national *1224origin, or ancestry.” (Former Health & Saf. Code, § 35720, subd. 1, as amended by Stats. 1975, ch. 1189, § 3, p. 2943.)
The statutory provisions prohibiting housing discrimination were transmuted into their present form when the Legislature enacted FEHA in 1980, combining in one scheme both the Rumford Act and the Fair Employment Practices Act (former Lab. Code, § 1411 et seq.). In that process, the Legislature repealed former Health and Safety Code section 35720 and reenacted its provisions in new Government Code section 12955. (Stats. 1980, ch. 992, § 4, p. 3154.) Although the new section applied more broadly to all classes of accommodations, it continued without change the prior statutory list of prohibited grounds of housing discrimination.
The available legislative history of Senate Bill No. 844 includes staff reports by various state agencies (e.g., the Department of Housing and Community Relations, the Fair Employment Practices Commission) and legislative committees (e.g., the Assembly Committee on Housing and Community Development, and the Assembly Ways and Means Committee). In addition to analyzing the background, terms, and effects of the bill, these reports generally recite the purposes that the bill sought to serve. In construing a statute, of course, we may consider “the ostensible objectives to be achieved.” (People v. Woodhead (1987) 43 Cal.3d 1002,1008 [239 Cal.Rptr. 656, 741 P.2d 154].)
It appears from these materials that Senate Bill No. 844 was largely intended to combat housing discrimination against unmarried women, and to a lesser extent unmarried men, based on unwarranted stereotypical beliefs that a single person is both a greater credit risk and a greater security risk than a married person. The legislative record identifies several such beliefs. First, there is the stereotype that unmarried men or women are less financially responsible than married persons, and hence are more likely to default in their obligations to make rent or mortgage payments; this stereotype is stronger in the case of unmarried women than men, and strongest for divorced women or women who are single heads of households. Second, there is the stereotype that the traditional nuclear family is a more stable social unit, and hence that unmarried men or women are more likely than married persons to disturb the peace of the premises. Third, there are two stereotypes aimed particularly at unmarried women: the belief that unmarried female tenants attract “drop-in” or “live-in” men, thus creating an undesirable climate on the premises; and the belief that unmarried female tenants lack the physical ability or skills to properly maintain the premises.
Noticeably absent from this legislative history of the relevant predecessor statutory enactments to Government Code section 12955 is any persuasive *1225evidence that the addition of the term “marital status” was intended to prohibit housing discrimination against unmarried cohabiting heterosexual couples as such. The foregoing notwithstanding, the plurality offers sufficiently persuasive countervailing reasons why the pertinent FEHA provisions should today be construed as prohibiting housing discrimination against unmarried cohabiting heterosexual couples.
When interpreting a statute, we normally look first to its plain language, attributing to those words 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].) Smith ultimately refused to rent to Randall and Phillips when she learned they were not married. Government Code section 12955, subdivision (a) makes it “unlawful . . . [H . . . [f]or the owner of any housing accommodation to discriminate against any person because of the . . . marital status ... of that person.” The ordinary meaning and use of that term logically encompasses both married and unmarried persons, and it would therefore appear that Smith’s actions violated the letter of FEHA.
Moreover, since the enactment of FEHA in 1980, the Commission has apparently consistently interpreted Government Code section 12955, subdivision (a) as applying to unmarried cohabiting couples. So too have at least two California appellate decisions (Hess v. Fair Employment & Housing Com. (1982) 138 Cal.App.3d 232 [187 Cal.Rptr. 712]; Atkisson v. Kern County Housing Authority (1976) 59 Cal.App.3d 89, 99-100 [130 Cal.Rptr. 375]), one of which was cited twice by this court with approval (see Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [211 Cal.Rptr. 398, 695 P.2d 695] [citing Atkisson for the proposition]; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 264, fn. 10 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118] [same].) Nor has the Legislature ever acted to amend Government Code section 12955, subdivision (a) in the face of this long-standing and well-publicized construction of its terms, which strongly suggests legislative aquiescence in the judicial interpretation of the statute. (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 235 [5 Cal.Rptr.2d 782, 825 P.2d 767].)
I therefore agree with the plurality’s conclusion that the provisions of FEHA here in issue must be interpreted as prohibiting discrimination in housing accommodations against unmarried cohabiting heterosexual couples. The foregoing legislative history, however, will serve to further characterize the nature of the rights which this particular provision of FEHA was intended to protect. (Post, at pp. 1240-1243.) As will be seen, where the statutory provision conflicts with and substantially burdens petitioner’s fundamental right of free exercise of religion, such a characterization gains *1226importance in seeking to determine, under RFRA’s mandated balancing test, whether the state can meet its burden of demonstrating the statute is the “least restrictive means” of implementing a “compelling governmental interest” in furtherance of the statute’s purpose, such as will outweigh petitioner’s federal statutorily guaranteed right to an exemption from its proscriptions.
Ill
In Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 (Smith), a sharply divided United States Supreme Court held that members of the Native American Church were not constitutionally entitled to ingest peyote as part of their religion’s sacrament in the face of an Oregon law outlawing the use of peyote. (Id. at p. 890 [108 L.Ed.2d at p. 893].) In so holding, the opinion for the court distinguished freedom of religious belief from freedom to act in strict conformance with one’s religious scruples. The opinion further distinguished what may be characterized as laws “directed at religion” from neutral laws that merely prescribe or proscribe conduct, but nonetheless conflict in some fashion with behavior driven by religious beliefs. 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).’ ” (Id. at p. 879 [108 L.Ed.2d at p. 886], quoting United States v. Lee (1982) 455 U.S. 252, 263, fn. 3 [71 L.Ed.2d 127, 136, 102 S.Ct. 1051] (conc. opn. of Stevens, ).).)
It is beyond dispute that Smith, supra, 494 U.S. 872, marked a radical departure from free exercise jurisprudence to the extent its holding redefined the constitutional parameters of religious exemptions. Prior to Smith, the high court’s cases interpreting the First Amendment’s guarantee of free exercise of religion had granted extensive protection to religious liberty through application of the “compelling interest” test. Under that test, the government could not pass or enforce any law that burdened the exercise of religion unless the law’s operative effect was the least restrictive means of attaining the compelling state interest which the law was enacted to further. The compelling interest test (or “compelling state interest” or “compelling governmental interest” test) was first announced by the court in Sherbert v. Verner (1963) 374 U.S. 398 [10 L.Ed.2d 965, 83 S.Ct. 1790] (see also Wisconsin v. Yoder (1972) 406 U.S. 205 [32 L.Ed.2d 15, 92 S.Ct. 1526]).
In Smith, supra, 494 U.S. 872, the high court effectively abandoned the compelling interest test. Under the holding of Smith, the free exercise clause of the federal Constitution does not exempt the believer from compliance *1227with the challenged law, no matter how great a burden the law imposes on the believer’s religious beliefs or conduct, so long as the law is one of ‘“valid and neutral . . . general applicability.’” (494 U.S. at p. 879 [108 L.Ed.2d at p. 886].)
The decision in Smith, supra, 494 U.S. 872, was met with near universal condemnation by members of Congress, religious leaders, religious interest groups, and academics alike. The reaction of Congressman Stephen J. Solarz, who was RFRA’s initial sponsor, is illustrative: “[W]ith the stroke of a pen, the Supreme Court has virtually removed religious freedom from the Bill of Rights.”6 Law review articles and notes were nearly unanimous in condemning the rationale and holding of Smith.7 One commentator who agreed with the outcome of Smith nevertheless opined that the high court’s decision “exhibits only a shallow understanding of free exercise jurisprudence and its use of precedent borders on fiction.” (Marshall, In Defense of Smith and Free Exercise Revisionism (1991) 58 U. Chi. L.Rev. 308, 309 [describing the purpose of his article as an attempt to defend Smith’s rejection of the compelling interest test “without defending Smith itself.”].)
Plainly, the opinion in Smith, supra, 494 U.S. 872, was viewed by many as reflecting the high court’s abandonment of all traditional protection of religious liberty. A large number of individuals, scholars, and religious groups joined together in a futile effort to petition the high court for a rehearing.8 Congress then set out to overturn the effect of the decision in Smith.
*1228RFRA was first introduced by Congressman Stephen J. Solarz on July 26, 1990. (H.R. No. 5377, 101st Cong., 2d Sess. (1990).) The same bill was introduced in the Senate on October 26, 1990, by cosponsoring Senators Biden, Hatch, Inouye, Kennedy, Lieberman, Metzenbaum, Moynihan and Specter. (Sen. No. 3254, 101st Cong., 2d Sess. (1990).) A second version of the bill was introduced, again by its chief sponsor, Congressman Solarz, on June 26, 1991 (H.R. No. 2797, 102d Cong., 1st Sess. (1991)), and reintroduced in the Senate by Senator Edward Kennedy (Sen. No. 2969, 102d Cong., 2d Sess. (1992)). The final version of the bill, which ultimately became law (H.R. No. 1308, 103d Cong., 1st Sess. (1993); Sen. No. 578, 103d Cong., 1st Sess. (1993)), differed from the original bill in several important respects. Among them, a section entitled “Congressional Findings and Declaration of Purposes,” which had been added in the second version, was retained and further amended in the final version of the bill. A section from the original bill that had defined the term “person” as used in the act, and ostensibly would have allowed individuals and religious organizations, corporations or associations to bring suit under the act, was deleted from the second version, and likewise omitted from the final version of the bill which became law.
Bipartisan support for the enactment of RFRA in both houses of Congress was overwhelming. The final version of RFRA was introduced in the Senate by Senators Edward Kennedy and Orrin Hatch, and was cosponsored by 55 Senators. (139 Cong. Rec. S14461-01, S14471 (daily ed. Oct. 27, 1993).) There were over 190 cosponsors of the predecessor bill in the House of Representatives; the final version passed in that house of Congress without opposition. (139 Cong. Rec. H2356-03, H2363 (daily ed. May 11, 1993); 139 Cong. Rec. H8713-04, H8715 (daily ed. Nov. 3, 1993).) The Coalition for the Free Exercise of Religion, formed for the specific purpose of supporting passage of RFRA, was comprised of more than 35 organizations representing widely diverse religious and political groups and viewpoints, among them the American Civil Liberties Union, the American Jewish Congress, Concerned Women for America, the Baptist Joint Committee on Public Affairs, the National Association of Evangelicals, and the Native American Rights Fund, to name a few. (See Religious Freedom Restoration Act of 1990: Hearings on H.R. No. 5377 before House Com. on Judiciary, Subcom. on Civil & Constitutional Rights, 101st Cong., 2d Sess. (1990) at pp. 61-62.)
It is clear beyond cavil that RFRA was enacted for the express purpose of restoring the level of protection for religious freedom that existed prior to the high court’s decision in Smith. As the court noted in Hunafa v. Murphy (7th Cir. 1990) 907 F.2d 46, 48, “Smith cut back, possibly to minute *1229dimensions, the doctrine that requires government to accommodate . . . minority religious preferences[.]” (See also Yang v. Sturner (D.R.I. 1990) 750 F.Supp. 558, 560 [“One must wonder . . . what is left of Free Exercise jurisprudence when one can attack only laws explicitly aimed at a religious group.”]; see also Smith, supra, 494 U.S. at p. 908 [108 L.Ed.2d at p. 905] (dis. opn. of Blackmun, J.) [Smith “effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution.”]; and see Church ofLukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 566 [124 L.Ed.2d 472, 512, 113 S.Ct. 2217] (conc. opn. of Souter, J.) [describing the hybrid distinction posited in Smith as unworkable and “ultimately untenable”].)
It is equally clear that RFRA,9 which applies retroactively to all cases pending at the time of its enactment (42 U.S.C. § 2000bb-3(a)), including this case, was purposefully intended to reverse the impact of the high court’s decision in Smith, supra, 495 U.S. 872, by creating a statutory right requiring the compelling interest test to be applied in all cases in which the free exercise of religion has been burdened by a law of general applicability.
That Congress intended RFRA to restore First Amendment free exercise jurisprudence to that which existed prior to Smith is clear from the following report of the House Judiciary Committee: “For many years and with very few exceptions, the Supreme Court employed the compelling governmental interest test [in deciding free exercise claims]. The Smith majority[’]s abandonment of strict scrutiny represented an abrupt, unexpected rejection of long-standing Supreme Court precedent. . . . [<fl] The effect of the Smith decision has been to subject religious practices forbidden by laws of general applicability to the lowest level of scrutiny employed by the courts. Because the ‘rational relationship test’ only requires that a law must be rationally related to a legitimate state interest, the Smith decision has created a climate in which the free exercise of religion is continually in jeopardy .... [^Q It is the Committee[’]s expectation that the courts will look to free exercise of religion cases decided prior to Smith for guidance in determining whether or *1230not religious exercise has been burdened and the least restrictive means have been employed in furthering a compelling governmental interest. . . . Therefore, the compelling governmental interest test should be applied to all cases where the exercise of religion is substantially burdened; however, the test generally should not be construed more stringently or more leniently than it was prior to Smith.” (H.R.Rep. No. 103-88, 103d Cong., 1st Sess. (1993) at pp. 3, 6, 7; and see id. at p. 15 [“[T]he purpose of the statute is to ‘turn the clock back’ to the day before Smith was decided.”].)
It is against this backdrop of the high court’s decision in Smith, supra, 495 U.S. 872, and the groundswell of opposition to that decision, culminating in Congress’s enactment of remedial legislation to reverse its impact on the traditional protections of religious liberty, that I turn next to the rationale of the lead opinion.
The lead opinion first analyzes petitioner’s free exercise claim under the First Amendment, and it is concluded that “[t]he First Amendment does not support Smith’s claim.” (Lead opn., ante, at p. 1161.) Principal reliance is placed on the holding in Smith, supra, 494 U.S. 872, and in particular, the passage in that case holding 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).” ’ ” (Lead opn., ante, at p. 1161, quoting Smith, supra, 494 U.S. at p. 879 [108 L.Ed.2d at p. 886].)
The lead opinion reflects a clear understanding of the import of the high court’s decision in Smith, supra, 494 U.S. 872. The plurality acknowledges that “in [Smith], the high court abandoned balancing as a way of adjudicating religiously motivated challenges to generally applicable laws.” (Lead, opn., ante, at p. 1163, italics added; see conc. opn. of Mosk, J., ante, at p. 1181 [“The Smith court all but declared the ‘compelling government interest’ test to be ‘utterly unworkable’ . . . .”].) The lead opinion further acknowledges that in Smith the high court “[r]epudiat[ed] 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 ....’’ (Lead opn., ante, at p. 1164.)
In proceeding to analyze petitioner’s free exercise claim under RFRA, the lead opinion acknowledges that RFRA was enacted for the express purpose of reversing the impact of Smith, supra, 494 U.S. 872, and restoring the compelling interest test. (Lead opn., ante, at p. 1166.) It is further explained that prior to Smith, the high court’s cases applying the compelling interest test required a critical threshold showing, to wit, that the statute challenged be shown to “substantially burden” the religious beliefs of the person *1231asserting its provisions violated his free exercise rights under the First Amendment, and that “Congress pointedly retained the threshold requirement in RFRA." (Id. at p. 1169.) Nor are there any factual conclusions drawn in the lead opinion at odds with the obvious “burden” that will result if petitioner is required to comply with the provision of FEHA here in question. In essence, she will be required to either (1) violate her religious beliefs, by having to rent to unmarried couples, (2) refuse to comply with the law, and thereby incur statutory penalties, which, I would note, include increasingly severe criminal penalties for continuing violations, or (3) get out of the apartment rental business.
Notwithstanding the clear commands of the compelling interest test mandated under RFRA, and the “substantial burden” that looms plain and clear when that threshold requirement is applied to the facts of this case, the lead opinion concludes as follows: “In summary, these are the facts on which we must decide whether [petitioner] should be exempt from the antidiscrimination provisions of FEHA: [Petitioner’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. [Citations.] 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 [petitioner’s] religious exercise more expensive. [Citations.] Finally, to grant the requested accommodation would not affect [petitioner] alone, but would necessarily impair the rights and interests of third parties. [Citation.] m This set of facts does not, under the relevant case law, support [petitioner’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.” (Lead opn., ante, at pp. 1175-1176.)
The lead opinion’s characterization of the compelling interest test mandated under RFRA, and its determination to truncate application of that test to this case because the “substantial burden” requirement assertedly could never be met on facts such as are before us, is simply flawed. True, “in enacting RFRA, Congress did not attempt to define a ‘substantial burden.’ ” (Lead opn., ante, at p. 1169.) True, the legislative history reflects Congress expected courts would look to the free exercise cases decided prior to Smith, supra, 494 U.S. 872, to determine whether the exercise of religion has been substantially burdened. (Lead opn., ante, at p. 1169.) But these observations are only accurate insofar as Congress plainly, and expressly, directed through RFRA that the compelling interest test, a balancing test first announced in the pre-Smith seminal case of Sherbert v. Verner, supra, 374 U.S. *1232398, and thereafter applied without exception to free exercise claims for nearly three decades (see also Wisconsin v. Yoder, supra, 406 U.S. 205), should henceforth be applied to such claims as a matter of federal statutory right. It is the rule of those pre-Smith cases and their progeny—that the compelling interest test be applied whenever government seeks to substantially burden a person’s exercise of religion, even if the burden results from a rule or law of general applicability—that RFRA commands must henceforth be applied to free exercise claims. Surely Congress did not intend to resurrect through RFRA the interpretation of the pre-Smith decisions which the high court in Smith placed on them to reach its holding abandoning the compelling interest test.
I view the lead opinion’s conclusions, summarized above, as virtually indistinguishable from the rationale and holding of Smith, supra, 494 U.S. at page 879 [108 L.Ed.2d at page 886], in which case the high court concluded that the free exercise clause of the federal Constitution does not exempt the believer from compliance with a challenged law, no matter how great a burden the law imposes on the believer’s religious beliefs or conduct, so long as the law is one of “ ‘valid and neutral. . . general applicability.’ ” It is this central theme and holding of Smith that was so plainly, expressly, and thoroughly repudiated through the enactment of RFRA.
The seminal case relied on in the lead opinion is Braunfeld v. Brown (1961) 366 U.S. 599 [6 L.Ed.2d 563, 81 S.Ct. 1144]. But the holding in that case is inapposite to the facts at hand. In Braunfeld, Orthodox Jewish shopkeepers were required by their religious scruples to close their shops on Saturdays, their Sabbath. They were also subject to the challenged Sunday closing law which required them to keep their shops closed on Sundays. They urged that the Sunday closing law violated their free exercise rights because the effect of that law, taken together with the command of their Orthodox Jewish faith that their shops remain closed on Saturdays, resulted in the closure of their businesses for two days a week, whereas other merchants were only required to close their shops one day a week (Sunday). The high court rejected the shopkeepers’ claim because nothing in Orthodox Judaism prohibited them from complying with the challenged law requiring them to close their shops on Sundays. The burden on the Orthodox Jewish shopkeepers was not “substantial” because nothing about their religious beliefs prevented them from complying with the Sunday-closing law.
Petitioner has never claimed her religion compels her to participate in the business of renting apartments. Nor is that factor alone conclusive of the issue at hand. Although the question whether the believer’s religion compels the conduct that stands in conflict with the challenged statute is a relevant *1233and important one, it is not determinative of the “substantial burden” inquiry we make under the compelling interest test. The Orthodox Jewish shopkeepers in Braunfeld did not claim their religious beliefs prevented them from complying with the Sunday-closing law, much less prevented them from pursuing their livelihood as shopkeepers. Nor, for that matter, did the United States Supreme Court in Braunfeld directly extend an invitation to the shopkeepers, who were petitioning the court to secure their fundamental right to free exercise of their religion, to get out of the business of being merchants.
Here, petitioner’s firm and sincerely held religious beliefs do prevent her from renting to unmarried cohabiting heterosexual couples. Unlike the shopkeepers in Braunfeld, here petitioner’s religious beliefs do conflict with, and require her to violate, the provision of FEHA in issue as long as she continues to offer her units for rent to the public. I would commend to the plurality the high court’s cautionary remarks in Wisconsin v. Yoder, supra, 406 U.S. 205, 220 [32 L.Ed.2d 15, 28], to the effect that “belief and action cannot be neatly confined in logic-tight compartments,” and those of Justice Sandra Day O’Connor in her concurring opinion10 in Smith, supra, 494 U.S. 874, 893 [108 L.Ed.2d 876, 895], to wit, “Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must be at least presumptively protected by the Free Exercise Clause.”
I am particularly persuaded by that portion of the analysis set forth in Justice Kennard’s concurring and dissenting opinion, wherein she explains that “Braunfeld . . . 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.” (Conc, and dis. opn. of Kennard, J., ante, at p. 1206.) Justice Kennard quotes various academics and commentators in support of this viewpoint, one of whom pointedly observed that the high court, in Sherbert v. Verner, supra, 374 U.S. 398, “ ‘abandoned Braunfeld’s distinction between direct and indirect impacts on religious conduct, and afforded religious action a level of constitutional protection that it had not before enjoyed.’ ” (Conc. & dis. opn. of Kennard, J., ante, at p. 1206, quoting Choper, The Rise and Decline of the Constitutional Protection of Religious Liberty (1991) 70 Neb. L.Rev. 651, 655.)
To this line of reasoning I would add a further observation. In paraphrasing RFRA’s “compelling governmental interest” test to be applied in cases in *1234which a law of general applicability is asserted to burden the claimant’s free exercise of religion, the lead opinion points to authorities setting forth the threshold requirement that “[t]he burden must fall on a religious belief rather than on a philosophy or a way of life.” (Lead opn., ante, at p. 1166, citing Wisconsin v. Yoder, supra, 406 U.S. 205, 215-219 [32 L.Ed.2d 15, 24-27]; Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 713-718 [67 L.Ed.2d 624, 630-634,101 S.Ct. 1425]; Werner v. McCotter (10th Cir. 1995) 49 F.3d 1476, 1479, fn. 1; and Thiry v. Carlson (D.Kan. 1995) 887 F.Supp. 1407, 1412.) It seems to me the “burden” may, and often does, fall on both the believer’s religious beliefs, and one or more aspects of his “way of life.” In reviewing the rationale of the lead opinion, it strikes me that the justices subscribing to it are seemingly choosing to focus, not on petitioner’s sincere affirmation that compliance with the provision of FEHA in question will burden her firmly held religious beliefs, but instead solely on the manner in which her compliance with the statutory provision will impact her economic “way of life.” Although the extent of the “economic” burden a challenged statute imposes on the believer is clearly a factor that can be weighed in evaluating the sincerity of the claimed need for a religious exemption, it is not determinative of the question of “substantial burden” where, as here, it can be shown that compliance with the law conflicts with the believer’s fundamental religious beliefs. Indeed, this case well illustrates the point, for as will be explained, petitioner’s economic interest in securing tenants for her vacant units is in actuality at odds with her religious beliefs, which serve to limit her pool of prospective lessees. In this sense too then, I believe the subscribers to the lead opinion lose sight of the full mandate of RFRA to apply a true balancing test to free exercise claims.
Finally, the subscribers to the lead opinion err when they meld the “compelling governmental interest” and “least restrictive means” inquiries into the threshold “substantial burden” inquiry. The lead opinion cautions that “were we to grant the requested accommodation, [petitioner] would have more freedom and greater protection for her own rights and interests, while Phillips and Randall would have less freedom and less protection.” (Lead opn., ante, at p. 1175.) But such is not a conclusion of law to be determined on speculation by this court. The balancing of rights and interests, and the determination whether the blanket prohibition of housing discrimination based on marital status is the “least restrictive means” of implementing the “compelling governmental interest,” if any, behind Government Code section 12955, is a matter of proof for the Commission in this case. RFRA expressly provides that the government must “demonstrate[] that application of the burden to the person— [f] ... [^] ... is the least restrictive means of furthering th[e] compelling governmental interest.” (42 U.S.C. § 2000bb-l(b).) “Demonstrate” is in turn defined in the legislation as “meeting] the burdens of going forward with the evidence and of persuasion.” (Id. at § 2000bb-2(3).) In contrast, the threshold “substantial burden” *1235inquiry to be made below, in the words of the statute, is simply this—is petitioner “[<z] person whose religious exercise has been burdened.” (42 U.S.C. § 2000bb-l(c), italics added.) In short, the focus at the “substantial burden” stage of our inquiry must be on whether the FEHA provision in question substantially burdens petitioner’s free exercise rights—not on whether Phillips and Randall would be afforded less protection under FEHA’s marital antidiscrimination provision, were petitioner granted an exemption from its proscriptions.
For reasons not entirely clear to many, myself included, the sharply divided high court in Smith, supra, 494 U.S. 872, in a single judicial opinion, undid nearly three decades of traditional constitutional protection of religious liberty which the court in Sherbert v. Verner, supra, 314 U.S. 398, set in motion in formulating the compelling interest test. In 1993, a nearly unanimous Congress, with overwhelming public support, passed federal legislation in an attempt to reestablish the traditional protections which religious liberty has long enjoyed in this country. In my view, the justices subscribing to the lead opinion have misconstrued both the letter and spirit of that important remedial legislation as it applies to this case.
It must, of course, be noted that there is no “majority” support in this case for the interpretation of RFRA suggested in Justice Werdegar’s lead opinion. This becomes clear when one considers the basis on which Justice Mosk has provided the essential concurring fourth vote for the result reached by the plurality in this case. The rationale of Justice Mosk’s separate concurring opinion warrants close scrutiny. Justice Mosk would find RFRA unconstitutional; in his words, “the statute itself is without effect as violative of the United States Constitution.” (Conc. opn. of Mosk, J., ante, at p. 1180.) Justice Mosk then rejects petitioner’s claims under the free exercise clause of the First Amendment, as that clause is interpreted by the high court’s decision in Smith, supra, 494 U.S. 872. Indeed, Justice Mosk would go farther than did the high court in Smith, supra, 494 U.S. 872. He states, “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.) [‘Jfl 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.” (Conc. opn. of Mosk, ante, at p. 1191, fii. omitted.)
In short, there is no majority support for the construction of the provisions of RFRA, or the suggested limited scope of its protection of religious liberties in California, set forth in the lead opinion. “And it is important. The lead opinion’s reasoning does not express the views of a majority of this court. As a result, its analysis Tacks authority as precedent’ (Board of *1236Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918 [13 Cal.Rptr.2d 245, 838 P.2d 1198]) and hence cannot bind. Therefore, its mischief is limited to this case and to this case alone.” (Alfredo A. v. Superior Court (1994) 6 Cal.4th 1212, 1257 [26 Cal.Rptr.2d 623, 865 P.2d 56] (dis. opn. of Mosk, J.).)
IV
Given my disagreement with the interpretation of RFRA found in the lead opinion, and my conclusion that a full and proper application of RFRA’s balancing test to the facts at hand might result in a conclusion that petitioner is entitled to an exemption under its provisions, I will proceed to discuss what I believe would be the appropriate application of RFRA’s balancing test to this case.
RFRA provides 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-1(a).) Under subdivision (b), “[g]ovemment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— [50 (1) is in furtherance of a compelling governmental interest; and [50 (2) is the least restrictive means of furthering that compelling governmental interest.” (42 U.S.C. § 2000bb-l(b).)
At the outset, I note that no party to these proceedings has directly challenged the constitutionality of RFRA as a general matter. In enacting RFRA, Congress relied on its power under section 5 of the Fourteenth Amendment, which provides that, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (See Sen.Rep. No. 103-111, 1st Sess., pp. 13-14 (1993), reprinted in 1993 U.S. Code Cong. & Admin. News, at pp. 1892, 1903.) In Cantwell v. Connecticut (1940) 310 U.S. 296 [84 L.Ed. 1213, 60 S.Ct. 900, 128 A.L.R. 1352], the Supreme Court incorporated the free exercise clause into the Fourteenth Amendment, thereby making it subject to the legislative protection afforded under section Five of the Fourteenth Amendment. To date, at least one federal circuit court, the United States Court of Appeals, Fifth Circuit, has expressly upheld the constitutionality of RFRA. (Flores v. City of Boerne, Tex. (5th Cir. 1996) 73 F.3d 1352.) Two federal district courts have likewise reached the same conclusion. (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.)11
I also find it significant that the express language of RFRA embodies individuals with standing to seek its protections. The statute provides that *1237“[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-l(c), italics added.) As noted, a prior version had defined “person” more broadly, but was deleted from the final version of the law. (Ante, at p. 1228.) I would not read beyond the express language of the statute. Unless construed otherwise by the high court, I view the provisions of RFRA as authorizing persons to seek individualized exemptions from generally applicable governmental laws or rules that burden their free exercise of religion, by authorizing them to invoke the statutorily mandated application of the compelling interest balancing test. When read together with the minimum standing requirements of article III of the Constitution which also apply to RFRA (see Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560 [119 L.Ed.2d 351, 363-364,112 S.Ct. 2130]), there need be no concern that broad segments of California’s citizenry will be able to seek religious-belief-based exemptions from otherwise valid state laws of general applicability.
Returning to the facts of the case before us, there is no dispute that Government Code section 12955, subdivision (a), embodying FEHA’s housing discrimination prohibition based on marital status, is a “neutral, generally applicable law.” The antidiscrimination provision applies to landlords of all faiths, and does not single out Christians like petitioner.
Nor does anyone appear to dispute that petitioner’s religious beliefs regarding the renting of her units to unmarried cohabiting heterosexual couples are sincerely held. In this regard, I find the following observations in the opinion of the Court of Appeal below, authored by Presiding Justice Robert K. Puglia and concurred in by Justice Arthur G. Scotland, with a separate concurring and dissenting opinion by Justice Vance W. Raye, pertinent here:12
The Commission entertained no “doubt” as to ‘the depth and sincerity of [plaintiff’s] religious convictions . . . .’ [] We accept as established by the *1238Commission’s finding to that effect that [petitioner] is sincere in her expressed religious conviction and belief that [sex outside of marriage] is a sin in the commission of which she will be complicit if forced to rent to an unmarried couple. “It is not within ‘the judicial function and judicial competence’ ... to determine whether [plaintiff] or the Government has the proper interpretation of [her] faith; ‘[c]ourts are not the arbiters of scriptural interpretation.’ ” (United States v. Lee, supra, 455 U.S. at p. 257 [71 L.Ed.2d at p. 132].) “The determination of what is a ‘religious’ belief or practice is more often than not a difficult and delicate task .... However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit [free exercise] protection.” (Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 714 [67 L.Ed.2d 624, 631, 101 S.Ct. 1425] (Thomas).)
More importantly, the constitutional protection accorded free exercise of religion is not limited to beliefs which are shared by all members of a religious sect. (Thomas, supra, 450 U.S. at pp. 715-716 [67 L.Ed.2d at p. 632].) “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (Board of Education v. Barnette (1942) 319 U.S. 624, 642 [87 L.Ed. 1628, 1639, 63 S.Ct. 1178, 147 A.L.R. 674].) We thus accept on faith, as it were, the sincerity of [petitioner’s] assertion her religious convictions and beliefs preclude her from renting to an unmarried couple on penalty of herself committing a sin.”13 [End of quoted portion of Court of Appeal opinion.]
As I have explained, I disagree with the rationale that leads the subscribers to the lead opinion to conclude FEHA’s prohibition against housing discrimination based on marital status does not “substantially burden" petitioner’s religious beliefs or free exercise rights. Here again, I commend the observations of the Court of Appeal below on that aspect of the inquiry:
“Compelling [petitioner] to rent her properties to unmarried couples, to pay damages to the unmarried complainants for refusing out of conscience to rent to them, to post notices informing prospective tenants of their rights and remedies under FEHA and specifically as it pertains to unmarried couples, *1239and to post announcements, signed by her, that she has been adjudicated in violation of FEHA for refusing to rent to an unmarried couple interferes with and substantially burdens [her] free exercise rights. [Petitioner] cannot remain faithful to her religious convictions and beliefs and yet rent to unmarried couples. If faced with that choice, [petitioner] testified her rental units will ‘stay vacant.’ The Commission’s order penalizes [petitioner] for her religious belief that [sex outside of marriage] and its knowing facilitation are sinful.”
The Court of Appeal concluded: “[Petitioner] has been forced to choose between fidelity to her religious beliefs and renting to complainants. Choosing to follow her conscience, [she] has further suffered abridgement of her free speech rights. The coercive impact is real and the conflict is irreconcilable. While the compulsion may be indirect, the infringement upon fundamental rights is nonetheless substantial.”
I agree with these conclusions. Petitioner presumably did not choose her religious beliefs for their convenience, yet she must, and has stated she will, abide by them despite the economic hardship of forgoing the business of unmarried couples who would otherwise make acceptable tenants. It would appear on these facts that the plurality’s result in this case will place on petitioner, a widow who derives her primary source of income from the rental units in question, the very substantial burden of finding a new livelihood and means of support.
I would add that I recognize that “[t]o maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good.” (United States v. Lee, supra, 455 U.S. at p. 259 [71 L.Ed.2d at p. 133]; see, e.g., Braunfeld v. Brown, supra, 366 U.S. at p. 603 [6 L.Ed.2d at p. 566] [state’s interest in “improving the health, safety, morals and general well-being of . . . citizens” permitted enforcement of Sunday-closing laws against shopkeepers who observed a Saturday Sabbath]; Prince v. Massachusetts (1944) 321 U.S. 158, 165 [88 L.Ed. 645, 652, 64 S.Ct. 438] [the “interests of society to protect the welfare of children” permitted the state to apply its child labor law to bar a Jehovah’s Witness from distributing religious literature on the streets].)
Nevertheless, to my mind, telling petitioner in this case she must choose between her sincerely held religious beliefs and her present means of income, support, and livelihood, that is to say, telling her to forgo her religious beliefs and “redeploy her capital” or get out of the apartment rental business, without making further inquiry into the “compelling interest,” if any, the FEHA provision in question is intended to protect, and the manner in which the statutory scheme seeks to attain that compelling interest, and without further balancing the results of those inquiries against petitioner’s *1240fundamental free exercise rights, violates both the letter and spirit of her federal statutory rights under RFRA. The lead opinion’s rationale is precisely the type of abbreviated analysis embraced in Smith, supra, 495 U.S. 874, which the federal legislation was enacted to redress.
I will therefore proceed, under the balancing test mandated by RFRA, to inquire generally into the matter of whether the state can demonstrate “that application of the burden 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-l(b).) Here again, I commend that portion of the opinion of the Court of Appeal below which concluded California has no compelling interest in promoting the housing rights of unmarried couples such as would automatically outweigh petitioner’s fundamental free exercise rights. The Court of Appeal reasoned as follows:14
California has a significant interest in eradicating discrimination in employment and housing. In 1975, provisions prohibiting sex and marital status discrimination in housing were added to the statute which previously forbade discrimination on the basis of race, creed or color. (Stats. 1975, ch. 1189, pp. 2942-2948; see also 2 Stats. 1975 (Reg. Sess.) Summary Dig., [] p. 322.) [As noted, ante, at page 1225,] [a]ppellate decisions hold that “marital status” includes unmarried couples. (Hess v. Fair Employment & Housing Com.[, supra, ] 138 Cal.App.3d 232, 235; Atkisson v. Kern County Housing Authorityl, supra, ] 59 Cal.App.3d 89, 99.)
The inquiry narrows to whether California’s interest in eradicating discrimination in housing against unmarried couples reaches the level of an overriding governmental interest. (See United States v. Lee, supra, 455 U.S. at p. 259 [71 L.Ed.2d at p. 133].) It is self-evident the Legislature cannot by statute establish that a governmental interest is so compelling as to override conflicting constitutional rights. When legislative abridgment of constitutional rights is asserted, the courts must be astute to examine the effect of the challenged legislation. (Schneider v. Irvington (1939) 308 U.S. 147, 161 [84 L.Ed. 155, 165, 60 S.Ct. 146].) “Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.” [(Ibid.)] “In the end, the judiciary must complete the task of determining whether a particular governmental policy is sufficiently compelling to override a claimed constitutional right.” (Gay Rights Coalition v. Georgetown Univ. (D.C.App. 1987) 536 A.2d 1, 73 (cone, and dis. opn. of Belson, J.); see Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 440-441 [87 L.Ed.2d 313, 320-321, 105 S.Ct. 3249].)
*1241While the Legislature has proscribed discrimination on a number of grounds—race, color, religion, sex, marital status, national origin, ancestry, familial and disability status—neither the statutory language nor legislative history indicates the Legislature intended the several proscribed grounds of discrimination be arrayed in any particular hierarchy of priorities, or that within each classification legitimate distinctions might be made. It is reasonable, however, to postulate that the Legislature did not intend all such classifications to be equal. (See Gay Rights Coalition v. Georgetown Univ., supra, 536 A.2d at p. 72 (conc, and dis. opn. of Belson, J.).) Several factors point to this conclusion.
First, it cannot be said the goal of eliminating discrimination on the basis of unmarried status enjoys equal priority with the state public policy of eliminating racial discrimination. Racial classifications leading to different treatment always demand strict scrutiny. (Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at p. 440 [87 L.Ed.2d at p. 320].) No similar level of scrutiny is demanded where discrimination is on the basis of marital status and certainly not for discrimination against unmarried couples (see Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 526 [213 Cal.Rptr. 410]; Garcia v. Douglas Aircraft Co. (1982) 133 Cal.App.3d 890, 894 [184 Cal.Rptr. 390]).
Second, the Legislature has not extended to unmarried couples numerous rights which married couples enjoy. Citing typically the lack of legislative approval, the courts have consistently refused to treat unmarried couples as the legal equivalent of married couples. (E.g., Elden v. Sheldon (1988) 46 Cal.3d 267, 274-279 [250 Cal.Rptr. 254, 758 P.2d 582] [unmarried person does not have cause of action either for negligent infliction of emotional distress or for loss of consortium]; (In re Cummings (1982) 30 Cal.3d 870 [180 Cal.Rptr. 826, 640 P.2d 1101] [prison regulations may properly allow conjugal visitation rights to married couples but deny them to unmarried couples]; Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106] [unmarried couples do not have a right to spousal support absent a written agreement]; Beaty v. Truck Insurance Exchange (1992) 6 Cal.App.4th 1455, 1461 [8 Cal.Rptr.2d 593] [insurer’s refusal to issue joint umbrella policy, reserved for married couples, to unmarried couple is not unlawfully discriminatory]; Hinman v. Department of Personnel Admin., supra, 167 Cal.App.3d at p. 530 [unmarried cohabitant is not entitled to dental benefits available to family members of state employees]; Garcia v. Douglas Aircraft Co., supra, 133 Cal.App.3d at p. 894 [unmarried person does not have a right to bring wrongful death action on behalf of cohabiting partner]; Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155 [173 Cal.Rptr. 68] [same]; People v. Delph (1979) 94 Cal.App.3d 411 [156 Cal.Rptr. 422, 4 A.L.R.4th 416] [unmarried couples do not have marital *1242communication privilege under the rules of evidence].) If the need to eradicate discrimination against unmarried couples is so compelling as complainants and the Commission contend, the Legislature would have responded to these judicial decisions to extend equal rights to all cohabiting Californians. (See Garcia v. Douglas Aircraft Co., supra, 133 Cal.App.3d at p. 894.)
We deem the Legislature’s lack of response to reflect the state’s strong interest in the marriage relationship. “[T]he state’s interest in promoting the marriage relationship is not based on anachronistic notions of morality. The policy favoring marriage is ‘rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.’ [Citation.]” (Elden v. Sheldon, supra, 46 Cal.3d at p. 275.)
Moreover, the legislative history suggests the Legislature’s purpose in adding “marital status” to the list of proscribed bases for discrimination primarily was to protect single men and women, students, widows and widowers, divorced persons, and unmarried persons with children. Even assuming as we do (see Hess v. Fair Employment & Housing Com., supra, 138 Cal.App.3d at p. 235; Atkisson v. Kern County Housing Authority, supra, 59 Cal.App.3d at p. 99) that “marital status” in its broadest, generic sense includes unmarried couples, a hierarchy still emerges from within the classification because the state’s interest in prohibiting discrimination in housing against, for example, a widower or an unmarried woman with children is more compelling than is its interest in prohibiting discrimination against unmarried couples. To conclude otherwise would defeat the state’s strong interest in promoting marriage. (Elden v. Sheldon, supra, 46 Cal.3d at p. 274; see Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 9 [192 Cal.Rptr. 134, 663 P.2d 904] [“We reaffirm our recognition of a strong public policy favoring marriage. [Citation.] No similar public policy favors the maintenance of nonmarital relationships.”].) In short, we find no evidence the Legislature considers the extension to unmarried couples of all rights enjoyed by married couples a compelling state interest. [End of quoted portion of Court of Appeal opinion.]
It is also noteworthy that simultaneously with the additions of “sex” and “marital status” as proscribed grounds of housing discrimination, the Legislature added provisions which authorize public and private postsecondary educational institutions to provide accommodations limited on the basis of sex or marital status but not on the basis of race, religion, or national origin. (Stats. 1975, ch. 1189, pp. 2942-2948; see also Stats. 1975 (Reg. Sess.) Summary Dig., ch. 1189, p. 322.) Government Code section 12995 provides in relevant part: “Nothing contained in this part relating to discrimination in housing shall be construed to: [H . . . fiD (2) Prohibit any postsecondary *1243educational institution, whether private or public, from providing housing accommodations reserved for either male or female students so long as no individual person is denied equal access to housing accommodations, or from providing separate housing accommodations reserved primarily for married students or for students with minor dependents who reside with them. [*]Q (3) Prohibit selection based upon factors other than race, color, religion, sex, marital status, national origin, [or] ancestry . . . .”
In short, the Legislature has reiterated that discrimination on the basis of race or creed is intolerable, but has recognized that in certain instances discrimination on the basis, for example, of marital status, is permissible given what it perceives to be the greater public benefit. Surely, petitioner’s fundamental federally guaranteed free exercise rights are entitled to no less deference and respect.
Indeed, as the Court of Appeal below aptly observed, “The exemption of Government Code section 12995 for postsecondary educational institutions, if applied to these complainants, would render an anom[a]lous result. Complainant Randall was at the time of this action a student at California State University at Chico. University officials could legally have denied complainants accommodations to live together in married student housing because of their unmarried status. Yet, [petitioner’s] refusal to rent to complainants because of her religious beliefs has brought down on her the wrath of the state for doing the very thing the state, as landlord, could do with impunity. Thus, the state is, hypocritically, coercing [petitioner] to ‘do as it says, not as it does.’ ”
As one commentator has observed: “[A] State’s failure to eliminate other serious forms of discrimination suggests that the State itself currently views the interest in eliminating marital-status discrimination as somewhat less than compelling.” (Comment (1995) 108 Harv. L.Rev. 763, 767.)
Assuming arguendo the state can demonstrate a sufficient “compelling governmental interest” under RFRA, a complete balancing analysis under the mandate of that federal statutory scheme requires further inquiry into whether the state can demonstrate that the challenged rule or statute “is the least restrictive means of furthering that compelling governmental interest.” (42 U.S.C. § 2000bb-l(b).)
I believe it would be administratively feasible to grant petitioner an individualized exemption from FEHA’s prohibition against housing discrimination based on marital status, on a proper showing that all the elements of RFRA’s balancing test were satisfied. FEHA’s statutory scheme plainly includes an administrative mechanism for enforcement that would be capable of assessing, on an individualized, case-by-case basis, the validity of a claimed entitlement to an RFRA-based exemption. The statutory scheme *1244affords a landlord the right to an administrative hearing, and an individualized determination of whether he or she 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 cohabiting couples should be permitted to raise an RFRA-based defense at such a hearing. The hearing officer can take evidence on the questions of the sincerity of the landlord’s religious beliefs, whether those beliefs are substantially burdened by the challenged provision of the state’s fair housing laws, whether the state can meet its burden of demonstrating a compelling interest in eliminating the discrimination to which the challenged provision is directed, and lastly, whether application of the challenged provision to the landlord is the least restrictive means of furthering that compelling governmental interest. Moreover, the Commission can intervene to hear the case itself, as was done here (see Gov. Code, § 11517, subd.(c)), and judicial review of any determination by way of a petition for mandamus relief is available to the parties. (Code Civ. Proc., § 1094.5.)
On the question of whether the state, at such a hearing, could likely meet its burden under RFRA of demonstrating that the provision of FEHA here under scrutiny is the “least restrictive means” of furthering the antidiscrimination policy to which it is addressed, I share the viewpoint expressed by Justice Kennard, who, in her concurring and dissenting opinion, explains: “[I]n 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 a religious exemption 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 command, 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.” (Conc. & dis. opn. of Kennard, J., ante, at pp. 1213-1214.)
In that same vein are the following observations of the Court of Appeal below; with which I also agree: “The instant case does not raise the spectre of floodgates opened to a myriad of exemptions from the state antidiscrimination law. To the contrary, we are confronted with a single landlord with two duplexes whose religious convictions will be violated if she is forced to rent her premises to unmarried couples. There is nothing in the record to *1245indicate the number of landlords similarly circumstanced is so great as to cause a serious shortage of housing for unmarried couples. There likewise is no evidence in the record to indicate landlords all over the state will suddenly experience religious conversions in order to obtain exemption from the statutory proscription of discrimination on the basis of marital status. In fact, the economic interests of landlords as a class would counsel otherwise.”
Given these realities, and the record before us, it is far from clear to me that the state could meet its burden of demonstrating that the blanket application of Government Code section 12955, subdivisions (a) and (d) to petitioner constitutes the least restrictive means of enforcing the state’s policy of prohibiting housing discrimination against unmarried cohabiting heterosexual couples. In any event, the specific requirements of RFRA were never directly addressed below (see post, at p. 1251), and as I shall conclude, this case should therefore be remanded for further proceedings consistent with the mandate of that federal legislation.
V
Given my conclusion that RFRA applies to this case, that the federal legislation affords petitioner in the first instance statutory protection of her right to free exercise of her religion, that the balancing test mandated under RFRA was never directly invoked below, and that therefore this matter should be remanded for a full and proper application of that test to the facts of this case, I would not address petitioner’s further claims under the federal or state Constitution. Because Justice Kennard would go even farther and find, on the record before us, that RFRA prohibits the Commission from applying FEHA to petitioner, she likewise stands on firm ground in concluding that she need not address petitioner’s claims under the state Constitution. (Conc. & dis. opn. of Kennard, J., ante, at pp. 1214-1215.) The lead opinion and concurring opinion of Justice Mosk are not on such firm footing.
It is suggested in the lead opinion that the question of whether the California Constitution’s free exercise clause (art. I, § 4) is more protective than the federal Constitution’s free exercise clause (U.S. Const., 1st Amend.) is, to date, not definitively settled. (Lead opn., ante, at p. 1179.) That may be so. We are all seemingly in agreement, however, that the protection afforded petitioner’s right of religious liberty under our state Constitution is at least as extensive as that afforded her under the federal Constitution. The lead opinion so concludes, wherein it is observed that “California courts have typically construed the provision [art. I, § 4] 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 *1246Sherbert v. Verner, supra, 374 U.S. 398, and Wisconsin v. Yoder, 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].)” (Lead opn., ante, at pp. 1177-1178.)
The lead opinion concludes that “[u]nder 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.” (Lead opn., ante, at p. 1178.) I respectfully disagree. The four decisions of this court noted in the quoted portion of the lead opinion, and relied on by the plurality herein, were decided prior to the high court’s decision in Smith, supra, 494 U.S. 872. All were decided before the enactment of RFRA, which legislation was passed in response to the holding in Smith. I am aware of no case decided by this court since Smith was handed down in which we have limited the scope of protection of religious liberty afforded under article I, section 4 of our state Constitution in the manner in which the high court in Smith limited the constitutional interpretation of the protection of religious liberty under the First Amendment to the United States Constitution.
Nor, until today, has this court ever suggested that the scope of protection of religious liberty under the free exercise clause of the First Amendment as construed in Smith, supra, 494 U.S. 872, or under RFRA, or under any case that has sought to interpret the scope of that federal legislation, has any bearing on the protection of religious liberty as independently guaranteed under article I, section 4 of our state Constitution. It is simply incorrect for the subscribers to the lead opinion’s interpretation of RFRA to suggest that the disposition of petitioner’s claim, purportedly thereunder, somehow “disposes of her claim under article I, section 4, of the state Constitution.” (Lead opn., ante, at p. 1178.) And it would likewise be incorrect to conclude that the plurality’s “majority” holding today, reached under the rationale of Smith, supra, 494 U.S. 872, stands as a definitive interpretation of the scope of religious protection afforded under the free exercise clause of article I, section 4 of our state Constitution.
Justice Kennard and we, having concluded that the federal statute (RFRA) affords protection of petitioner’s fundamental right to the free exercise of her *1247religion, have no compelling need or occasion to address petitioner’s further state constitutional challenge to the provision of FEHA here in question. Fundamentally, under the supremacy clause of the federal Constitution (U.S. Const., art. VI, cl. 2), the provisions of RFRA must prevail over state law to the contrary.
The plurality, in contrast, having found no protection of petitioner’s fundamental free exercise rights under federal statutory or constitutional law, is obligated to further address petitioner’s claims under the state Constitution in a meaningful manner. The plurality has not done so.
The lead opinion states: “[Petitioner’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.” (Lead opn., ante, at p. 1161.) The lead opinion goes on to hold: “The First Amendment does not support [petitioner’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 undertaken for religious reasons. (See Church of Lukumi. v. Hialeah (1993) 508 U.S. 520,_ [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. [H The foregoing principles reflect the latest evolution in the United States Supreme Court’s understanding of the free exercise clause. . . . [T]hey bar [petitioner’s] claim under the federal Constitution to an exemption from FEHA . . . .” (Lead opn., ante, at pp. 1161-1162.)
The lead opinion, together with Justice Mosk’s separate concurring opinion, therefore form a majority only for the proposition that petitioner’s free exercise claims must fail under the First Amendment to the federal Constitution as interpreted by Smith, supra, 494 U.S. 872. That being the only true majority holding in this case, the failure of the plurality to reckon with petitioner’s state constitutional claims takes on added significance. One might ask—in light of the majority holding of this case—can the plurality *1248reasonably avoid further scrutiny of petitioner’s claims under the state Constitution’s free exercise clause of article I, section 4? Are the lead and concurring opinions suggesting, without independent analysis, that the protection of religious liberty afforded under the free exercise clause of the California Constitution is henceforth to be limited in the same manner that the First Amendment’s protection of religious liberty was limited by the high court in Smith? For some further guidance, we might turn to the plurality of opinions filed in one of this court’s most recent religious liberties cases— Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863 [281 Cal.Rptr. 34, 809 P.2d 809] (Sands).
In Sands, supra, 53 Cal.3d 863, a plurality of this court held that a school district’s practice of conducting prayers at public school graduation ceremonies violated the establishment clauses of both the federal (U.S. Const., 1st Amend.) and state (art. I, §4) Constitutions. (53 Cal.3d at p. 867.) I dissented. Because I concluded that the First Amendment does not bar all religious content in public high school graduation ceremonies, I recognized that the restrictions of the California Constitution to the issue there at hand would also have to be addressed by this court. (Sands, supra, 53 Cal.3d 863, 945 (dis. opn. of Baxter, J.).)
The plurality in Sands, supra, 53 Cal.3d 863, could have reached its conclusion under the federal Constitution alone, for once it determined the school district’s practice of conducting prayers at public school graduation ceremonies violated the establishment clause of the federal Constitution (contrary to my own views in that case), nothing in the California Constitution, or any other source of California law, could have validated the school prayer practices. (U.S. Const., art. VI, cl. 2.) Still, the plurality in Sands proceeded to invoke article I, section 4 of the California Constitution as an independent ground for striking down such school prayers. (Sands, supra, 53 Cal.3d at p. 867.)
In a separate concurring opinion in Sands, supra, 53 Cal.3d 863, Chief Justice Lucas—who joined in the plurality’s holding that the school prayer practices there in question violated the establishment clause of the First Amendment under the “Lemon test” (Lemon v. Kurtzman (1971) 403 U.S. 602 [29 L.Ed.2d 745, 91 S.Ct. 2105])—further concluded, in light of that finding of a violation under the federal Constitution, that the Sands plurality need not have, and should not have, reached petitioners’ further claims that the prayer practices also violated article I, section 4 of the California Constitution. (Sands, supra, 53 Cal.3d 863, 902-905 (conc. opn. of Lucas, C. J.).)
In his separate concurring opinion in Sands, supra, 53 Cal.3d 863, Justice Mosk, in full agreement with the majority’s determination to ground its *1249holding, in part, on the provisions of the state Constitution, offered some observations about when this court should look to the California Constitution’s independent guarantee of religious rights in the face of a party’s claim that his rights thereunder are being abridged by some govemmentally sanctioned law, rule, or practice. In my view, Justice Mosk’s observations in Sands take on particular importance and relevance in the context of the legal issue presented in this case.
In Sands, supra, 53 Cal.3d 863, Justice Mosk first registered his belief that “religious invocations and benedictions at public high school graduation ceremonies violate both the federal and California Constitutions.” (Id. at p. 905 (conc. opn. of Mosk, J.).) He then turned his attention to that aspect of Chief Justice Lucas’s concurring opinion in Sands, paraphrased above, which suggested that where a governmental law, rule or practice is found unconstitutional under the United States Constitution, this court is not compelled to reach a petitioner’s related claims under the state Constitution. Justice Mosk offered the following observations in response to Chief Justice Lucas’s separate concurrence:
“[A]s the highest court of this state, we are independently responsible for safeguarding the rights of our citizens. State courts are, and should be, the first line of defense for individual liberties in the federal system. It is unnecessary to rest our decision on federal authority when the California Constitution alone provides an independent and adequate state constitutional basis on which to decide. (See, e.g., People v. Brisendine (1975) 13 Cal.3d 528, 551 [119 Cal.Rptr. 315, 531 P.2d 1099].)
“In his separate concurrence the Chief Justice virtually begs the Supreme Court to relieve us of our duty under the Constitution of California. Such a supplication is unprecedented. We are not a branch of the federal judiciary; we are a court created by the Constitution of California and we owe our primary obligation to that fundamental document. Only if an issue cannot be determined with finality under state constitutional doctrine do we turn to federal authority for assistance.
“The Chief Justice suggests that after federal review we may possibly consider state constitutional issues. This is not only the horse trailing the cart, it results in unnecessary delay, additional costs to the parties—one here being a tiny school district—and a duplicative burden on judicial resources. State law and state constitutional principles should be our first, not our last, referent.
“The Minnesota Supreme Court experience should be a lesson to us. In State v. Hershberger (Minn. 1989) 444 N.W.2d 282, the court held the Amish are entitled to religious exemption from certain traffic requirements. The United States Supreme Court granted certiorari, took the case over, and *1250then remanded for consideration in the light of its opinion in Employment Div. Dept. of Human Resources of Oregon v. Smith (1990) 494 U.S. 872 [108 L.Ed.2d 876, 110 S.Ct. 1595] [holding no religious exemption for peyote users].
“On remand, the Minnesota court declined to follow Smith, and instead, relying on the state Constitution, reiterated its original conclusion (State v. Hershberger (Minn. 1990) 462 N.W.2d 393). While the ultimate result in Minnesota was a vindication of state constitutionalism, the delay in achieving finality, the time and expense of unnecessary proceedings, and the duplicative burden on judicial resources, should caution us against traveling the same route in the instant case.” (Sands, supra, 53 Cal.3d at pp. 906-907 (conc. opn. of Mosk, J.), italics in original.)
Returning to the case before us, unlike the issue and holding in Sands, supra, 53 Cal.3d 863, here the lead and concurring opinions have not found a governmental law, rule or practice violative of the federal Constitution. FEHA’s prohibition against housing discrimination based on marital status was not being challenged as unconstitutional in the proceedings below. Instead, we have an individual, petitioner Evelyn Smith, who, based on the particular facts and circumstances of this case, is seeking an individualized exemption from FEHA’s requirement that she go against her sincerely held fundamental religious beliefs and offer her rental units for lease to unmarried cohabiting heterosexual couples. These are religious beliefs which, we might add, undeniably enjoy some level of protection under our state Constitution, particularly so where a plurality of this court is finding that they enjoy virtually no such protection under the “latest evolution in the United States Supreme Court’s understanding of the [First Amendment’s] free exercise clause.” (Lead opn., ante, at p. 1162.)
The views of Justice Mosk, as set forth in his separate concurring opinion in Sands, supra, 53 Cal.3d 863, would therefore appear to me to have more pertinent application to this case. Without further critical analysis, I would not read the lead opinion and concurring opinion of Justice Mosk as together definitively setting forth the scope of protection of religious liberty under the free exercise clause of our state Constitution.
Conclusion
The hearing before the administrative law judge in this case, and the subsequent proceedings had before the Commission, were conducted in 1988 and 1989, well before RFRA’s enactment and, indeed, prior to the high court’s decision in Smith, supra, 495 U.S. 874, which prompted Congress to enact the remedial legislation. RFRA, by its own terms, is broadly and expressly retroactive, “applying] to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether *1251adopted before or after [November 16, 1993 (the date on which RFRA became effective)].” (42 U.S.C. § 2000bb-3(a).) RFRA mandates retroactive application of the compelling interest test to petitioner’s free exercise claim. Application of that test in turn requires that findings of fact be made, and various factors balanced, toward determining whether the state can meet its burden of demonstrating that the housing discrimination provision in question is the “least restrictive means” of implementing a “compelling governmental interest” in furtherance of the statute’s purpose, or whether petitioner is instead entitled to an individualized exemption from the provision based on the particular facts of this case. The specific procedures outlined in RFRA were not in effect at the time the Commission heard this case and found petitioner in violation of FEHA, nor did the Commission elect to adopt the findings and conclusions made by the administrative law judge respecting petitioner’s constitutional claims. I therefore conclude the most appropriate disposition would be to remand the matter for further proceedings consistent with the requirements of that federal legislation.
I would reverse the judgment of the Court of Appeal with directions to remand this matter for further proceedings consistent with the mandate of RFRA.
Lucas, C. J., concurred.
California Constitution, article III, section 3.5, provides in relevant part: “An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: [<J0 (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional. . . .”
Government Code section 12955, subdivision (a) provides in relevant part:
“It shall be unlawful:
“(a) For 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.” (Italics added.)
Government Code section 12955, subdivision (d) provides in relevant part:
“It shall be unlawful: HD ... HQ (d) For any person subject to the provisions of Section 51 of the Civil Code, as that section applies to housing accommodations, to discriminate against any person on the basis of sex, color, race, religion, ancestry, national origin, familial status, marital status, disability, or on any other basis prohibited by that section.”
The Commission also concluded plaintiff’s conduct constituted a form of arbitrary discrimination by a business establishment in violation of Civil Code section 51 and Government Code section 12948.
At the time of these events Civil Code section 51 provided: “This section shall be known, and may be cited, as the Unruh Civil Rights Act.
“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
“This section shall not be construed to confer any right or privilege on a person which is conditioned or limited by law or which is applicable alike to persons of every sex, color, race, religion, ancestry, or national origin.” (Stats. 1974, ch. 1193, § 1, p. 2568.)
Government Code section 12948 provides: “It shall be an unlawful practice under this part for a person to deny or to aid, incite, or conspire in the denial of the rights created by Section 51 or 51.7 of the Civil Code.”
A component of the emotional distress damages found by the Commission was that plaintiff’s refusal to rent to complainants “revived for complainant Randall the pain of her parents’ disapproval of her living with complainant Phillips.” Randall was awarded $300 for this emotional trauma. Phillips was awarded $200. On appeal, the Commission concedes it was without the power to award such damages. (See Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 251, 267 [284 Cal.Rptr. 718, 814 P.2d 704].)
For the antidiscrimination laws preceding the Rumford Act and their construction by this court, see Comment, The Rumford Fair Housing Act Reviewed (1964) 37 So.Cal.L.Rev. 427, 430-434.
Religious Freedom Restoration Act of 1990: Hearings on House Bill No. 5377 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 101st Congress, Second Session (1990), page 18 (statement of Rep. Stephen J. Solarz).
See, e.g., Note, The Criminalization of Belief: When Free Exercise Isn’t (1991) 42 Hastings L.J. 1491; Gordon, Free Exercise on the Mountaintop (1991) 79 Cal.L.Rev. 91; Delaney, Police Power Absolutism and Nullifying the Free Exercise Clause: A Critique of Oregon v. Smith (1991) 25 Ind. L.Rev. 71; McConnell, Free Exercise Revisionism and the Smith Decision (1990) 57 U. Chi. L.Rev. 1109; Note, The Illusory Enforcement of First Amendment Freedom: Employment Division, Department of Human Resources v. Smith and the Abandonment of the Compelling Governmental Interest Test (1991) 69 N.C. L.Rev. 1332; Comment, Employment Division, Department of Human Resources v. Smith: The Supreme Court Deserts the Free Exercise Clause (1991) 25 Ga. L.Rev. 567; Comment, Just Say No to Judicial Review: The Impact of Oregon v. Smith on the Free Exercise Clause (1991) 76 Iowa L.Rev. 805; Note, Employment Division v. Smith: The Supreme Court Alters the State of Free Exercise Doctrine (1991) 40 Am. U. L.Rev. 1431.
The petition for rehearing in Smith was subscribed to by public interest groups such as the American Civil Liberties Union, numerous religious interest groups (including Baptist, Catholic, Jewish, Lutheran, Evangelical, Unitarian and Seventh Day Adventist groups), as well as an unprecedented coalition of over 50 law professors, among them Gerald Gunther of Standford, Laurence Tribe of Harvard, Kent Greenawalt of Columbia, and Michael McConnell of Chicago. {Smith, supra, 494 U.S. 872, rehg., den. (1990) 496 U.S. 913 [110 L.Ed.2d 285, 110 S.Ct. 2605].)
Title 42 United States Code section 2000bb-l states:
“(a) In General.—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).
“(b) 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.
“(c) 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. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.”
It should be noted that Justice O’Connor did not join the rationale of the majority in Smith, but instead concurred on separate grounds. She would have applied the compelling interest test, but concurred in the judgment because she believed the petitioners would still lose under that test. (Smith, supra, 494 U.S. at pp. 905-907 [108 L.Ed.2d at pp. 903-904] (conc. opn. of O’Connor, J.).)
Congress’s power in this regard has been successfully exerted in other contexts. (See, e.g., the Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa-2000aa-12 [restricting the ability of government investigators to obtain documents from the media, thereby limiting the *1237effect of the high court’s holding in Zurcher v. Stanford Daily (1978) 436 U.S. 547 [56 L.Ed.2d 525, 98 S.Ct. 1970]; the Church Audit Procedure Act of 1984, 26 U.S.C. §7611 [strictly regulating the ability of the Internal Revenue Service to conduct “church tax examination” and “church tax inquiry”].)
Most pertinent here is Congress’s enactment of the Exemption Act of 1988, 26 United States Code section 3127, which created a special Social Security tax exemption for employers and employees who are members of “a recognized religious sect” and whose “established tenets” include opposition to participation in the Social Security program. This legislation freed the Old Order Amish from the high court’s holding in United States v. Lee, supra, 455 U.S. 252, which decision rejected the Amish petitioners’ free exercise claim on the ground that uniform, compulsory collection of Social Security taxes was essential to accomplishing an overriding governmental interest.
Brackets together, in this manner [], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than the reporter’s parallel citations) are, unless otherwise indicated, used to denote insertions or additions. Footnotes in the Court of Appeal opinion that have been retained are sequentially numbered. (See Arriaga v. County of *1238Alameda (1995) 9 Cal.4th 1055, 1059 [40 Cal.Rptr.2d 116, 892 P.2d 150]; People v. May (1988) 44 Cal.3d 309, 315 [243 Cal.Rptr. 369, 748 P.2d 307]; Estate of McDill (1975) 14 Cal.3d 831, 834 [122 Cal.Rptr. 754, 537 P.2d 874].)
We do not mean to suggest that every claim of religious belief warrants free exercise protection. One can easily imagine “an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to [free exercise] protection. . . .” (Thomas, supra, 450 U.S. at p. 715 [67 L.Ed.2d at p. 632].) That is manifestly not the case here.
For comments as to format, see ante, page 1237, footnote 12.