dissenting.
Article I, section 4 of the Alaska Constitution declares that “[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.” As the majority correctly recognizes, this provision may provide greater protection of free exercise rights than is now provided under the United States Constitution. Opinion at 280-281. Accordingly, while the United States Supreme Court has adopted a new test to analyze free exercise claims such as *286the one at issue here,1 the majority agrees that we will continue to apply the compelling interest test in interpreting the free exercise clause of the Alaska Constitution. Opinion at 281.
Our decision in Frank v. State, 604 P.2d 1068 (Alaska 1979), sets forth the framework from which we must determine whether AMC 5.20.020 and AS 18.80.240 violate Swan-ner’s right to the free exercise of his religion. As we stated in Frank, “[n]o value has a. higher place in our constitutional system of government than that of religious freedom.” 604 P.2d at 1070. For this reason, a facially neutral statute or ordinance which interferes with religious-based conduct must be justified by a compelling state interest. Id. Absent such an interest, our constitution requires an exemption from the laws at issue to accommodate religious practices. Id. at 1070-71.
The majority acknowledges that Swanner’s actions fall within the ambit of the free exercise clause. Swanner has shown that his refusal to rent apartments to unmarried individuals who plan to live with a member of the opposite sex is based on his Christian faith, which strictly proscribes such cohabitation. No one questions the sincerity of his religious belief that he facilitates a sin by renting to unmarried individuals such as the complainants in this case. See Opinion at 281-282. For this reason, Swanner’s religiously impelled conduct must be protected under Alaska law unless the AERC can show that the conduct poses “some substantial threat to public safety, peace or order,” or that there exist competing governmental interests “of the highest order” which are not otherwise served without limiting Swanner’s conduct. Frank, 604 P.2d at 1070 (citing Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972) and Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963)); Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1301 n. 33 (Alaska 1982). I do not believe the AERC has met its burden in this case. I would therefore grant Swanner an exemption to accommodate his religious beliefs.
First, I note that in determining that the governmental interest in this case is “of the highest order,” the majority announces an entirely new and unnecessary test examining the state’s “transactional” and “derivative” interests. Opinion at 282. Under this analysis, the majority concludes that the state has a transactional, or per se, interest in preventing “individual acts of discrimination based on irrelevant characteristics” which overrides Swanner’s free exercise rights in this case. Because the interest is “transactional,” the majority concludes that no evidentiary basis is required to show that rental housing for unmarried couples has become scarce. However, before the court would enforce the state’s “derivative” interest in “ensuring access to housing for everyone,” the AERC apparently would have to make an evidentia-ry showing that cohabitating couples have experienced hardship in finding available housing, ie., that Swanner’s conduct poses a “substantial threat to public safety, peace or order.” Frank, 604 P.2d at 1070.
In my opinion, this amorphous analysis of the state’s interests ultimately will prove to be useless in resolving future free exercise cases. Even in this case, I do not believe it provides a useful distinction of the interests at issue. For example, the majority determines that the state has a per se objection to marital status discrimination in housing which overcomes Swanner’s free exercise rights. The majority defines this interest as that in “preventing acts of discrimination based on irrelevant characteristics.” Opinion at 282. Such an articulation of the state’s interest poses myriad questions. Who is to determine what is an “irrelevant” characteristic? Obviously, marital status is not “irrelevant” to Swanner. It is central to the question whether he will be committing a sin under the dictates of his religion. Is the legislative branch the final arbiter of relevancy or irrelevancy? Further, the discrimination at issue here is not based on innate *287“characteristics” but rather on the conduct of potential tenants. While this conduct is worthy of some protection, it does not warrant the same constitutional protection given to religiously compelled conduct. I am not willing to place the right to cohabitate on the same constitutional level as the right to freedom from discrimination based on either innate characteristics — such as race or gender — or constitutionally protected belief, such as freedom of religion.
In addition, it remains unclear to me how the state’s “derivative” interests are to be identified. Here, that interest is defined with little explanation as being the state’s interest in “providing access to housing for all.” Opinion at 282. Does this mean the state has no per se objection to the fact that some individuals may have limited access to housing? In Frank, could it not be said that the state had a per se interest in enforcing its hunting regulations?
In Frank, this court set forth a workable and sufficient guide to determine whether a governmental interest is sufficiently compelling to overcome an individual’s free exercise rights. 604 P.2d at 1070. It seems to me that the majority’s effort to expand this analysis adds little to the actual analysis of interests at stake. To the contrary, I see the majority’s expansion of Frank as little more than a strained effort to distinguish Frank from the present situation when such a distinction is not logically justified. In this effort, the majority totally ignores the record in this case, and it engages in a game where the “transactional” or “derivative” label attached to any given state interest predetermines the outcome of the case.
There is no governmental interest “of the highest order” to justify the burden on Swanner’s fundamental rights.
Even applying the framework announced by the court in analyzing whether the state’s interest is “of the highest order,” I cannot agree with the court’s reasoning and resulting decision. In essence, the majority’s conclusion is that marital status discrimination constitutes such an affront to human dignity that the state has a per se obligation “of the highest order” to prevent it. Based on my analysis of free exercise jurisprudence and the issues surrounding marital status discrimination, I cannot conclude that eradication of marital status discrimination in the rental housing industry constitutes a governmental interest of such high order as to justify burdening Swanner’s fundamental constitutional rights.2
There can be no question that the state has a compelling interest in eradicating discrimination against certain historically disadvantaged groups. See, e.g., Bob Jones University v. United States, 461 U.S. 574, 593-95, 103 S.Ct. 2017, 2029-30, 76 L.Ed.2d 157 (1983) (racial discrimination); Roberts v. United States Jaycees, 468 U.S. 609, 625, 104 S.Ct. 3244, 3253-54, 82 L.Ed.2d 462 (1984) (gender discrimination). This compelling interest has been found to exist based on a determination that the discrimination at issue is so invidious to personal dignity and to our concept of fair treatment as to warrant strict protection. There is no question that Swan-ner’s right to freely exercise his religion could and should be burdened if he engaged in such discrimination as a result of his religious beliefs.
This fact does not mean, however, that every form of discrimination is equally invidious or that the state’s interest in preventing it necessarily outweighs fundamental constitutional rights. Rather, the cases which have upheld an imposition on free exercise have articulated certain specific reasons that some forms of discrimination are of particu*288lar governmental interest and deserving of heightened judicial scrutiny. In Bob Jones University v. United States, 461 U.S. 574, 108 S.Ct. 2017, 76 L.Ed.2d 157 (1983), for example, the Supreme Court refused to grant tax-exempt status to schools that maintained racially discriminatory policies under their interpretation of the Bible. In doing so, the Court discussed this nation’s long history of officially sanctioned racial segregation and discrimination in education. It further noted that, since the late 1950s, every pronouncement of the Supreme Court and myriad Acts of Congress and Executive Orders attested to a national policy prohibiting such discrimination. Id. at 594-95, 604, 103 S.Ct. at 2029-30, 2035. It therefore concluded that “[tjhere can no longer be any doubt that racial discrimination in education violates deeply and widely accepted views of elementary justice.” Id. at 592, 103 S.Ct. at 2029. Accordingly, the government’s interest in eradicating racial discrimination in education was found to be compelling.
Similarly, in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), the Supreme Court declared that the state’s compelling interest in eradicating discrimination against its female citizens justified any minimal interference with an all-male organization’s freedom of expressional association. In analyzing the weight of the state’s interest, the Court discussed the invidious nature of gender bias, stating:
[Discrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities. It thereby both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.
Id. at 625, 104 S.Ct. at 3253. (citations omitted). The Court also observed that society generally had recognized the importance of removing “the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women.” Id. at 626, 104 S.Ct. at 3254. Based on these conclusions, it was no stretch to find that the state possessed a compelling interest in eradicating gender discrimination, and that this interest was sufficient to overcome the Jaycees’ First Amendment claim. Id. at 626-29, 104 S.Ct. at 3254-56.
The majority today avoids engaging in any similar analysis of marital status discrimination to explain why or how it is so damaging to human dignity to become of such governmental import as to overcome a fundamental constitutional right.3 This'analysis is critical. The majority cites no evidence that marital status classifications have been associated with a history of unfair treatment that would warrant heightened governmental protection.4 To the contrary, I believe the law is clear that marital status classifications have been accorded relatively low import on the scale of interests deserving governmental protection. For instance, the government *289itself discriminates based on marital status in numerous regards, and there is no suggestion that this practice should be reexamined. Alaska law explicitly sanctions such discrimination. See, e.g., AS 13.11.015 (intestate succession does not benefit unmarried partner of decedent); AS 23.30.215(a) (workers’ compensation death benefits only for surviving spouse, child, parent, grandchild, or sibling); Alaska R.Evid. 505 (no marital communication privilege between unmarried couples); Serradell v. Hartford Accident & Indemn. Co., 843 P.2d 639, 641 (Alaska 1992) (no insurance coverage for unmarried partner under family accident insurance policy).
In addition, marital status classifications have never been accorded any heightened scrutiny under the Equal Protection Clause of either the federal or the Alaska Constitutions. Disparate treatment of individuals based on classifications such as race, on the other hand, are reviewed under the highest scrutiny. See, e.g., Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (restrictions curtailing the civil rights of a single racial group are immediately suspect and deserve strict scrutiny analysis). Gender-based classifications are similarly analyzed under a heightened level of scrutiny at the federal level. See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107 (1980) (gender-based discrimination must serve important governmental objectives and the discriminatory means employed must be substantially related to the achievement of those objectives). The sliding scale approach to equal protection analysis under the Alaska Constitution similarly applies a heightened level of scrutiny to laws burdening racial minorities or other suspect classifications. See State v. Ostrosky, 667 P.2d 1184, 1193 (Alaska 1983) (“[L]aws which embody classification schemes that are more constitutionally suspect, such as laws discriminating against racial or ethnic minorities, are more strictly scrutinized.”); State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978) (where fundamental rights or suspect categories are involved, equal protection analysis under the Alaska Constitution requires a compelling state interest).
At the federal level, the eradication of marital status discrimination in the housing context clearly has not been treated as a compelling interest.5 Neither the Federal Fair Housing Act, 42 U.S.C. § 3604 (1988), nor the Federal Civil Rights Act, 42 U.S.C. §§ 1981 and 1982 (1988), would prohibit the precise form of marital status discrimination at issue here, unless it was being used as a pretext for a more egregious form of discrimination, such as that based on race. See Marable v. H. Walker & Assocs., 644 F.2d 390, 397 (5th Cir.1981) (finding a violation of the fair housing and civil rights statutes only after concluding that, although the landlord asserted that he refused to rent housing based on the applicant’s marital status, this excuse was a mere pretext for racial discrimination); see also James A. Kushner, The Fair Housing Amendments Act of 1988: The Second Generation of Fair Housing, 42 Vand.L.Rev. 1049, 1106 (1989) (the Fair Housing Act does not protect unmarried couples from a landlord’s refusal to rent unless a case can be made that the marital status discrimination is merely a pretext for racial, ethnic, religious or gender-based discrimination).
My research has not revealed a single instance in which the government’s interest in eliminating marital status discrimination has been accorded substantial weight when balanced against other state interests, let alone fundamental constitutional rights. I find nothing to suggest that marital status discrimination is so invidious as to outweigh the fundamental right to free exercise of religion.
The majority comments that its result today is justified because Swanner’s right to the free exercise of his religious beliefs must be accorded less weight since he has entered the commercial arena. Opinion at 283-284. *290As discussed above, it is well-accepted that an individual’s right to religious freedom will not and cannot always override other interests. See, e.g., United States v. Lee, 455 U.S. 252, 261, 102 S.Ct. 1051, 1057, 71 L.Ed.2d 127 (1982) (rejecting Amish employer’s claim that imposition of social security taxes violated his free exercise rights). However, neither Lee nor any other case of which I am aware stands for the proposition that individuals like Swanner altogether waive their constitutional right to the free exercise of religion simply because a conflict between their religious faith and some legislation occurs in a commercial context. To the contrary, the Lee Court recognized that, even in a commercial setting, the state must justify its limitation on religious liberty by showing the limitation is “essential to accomplish an overriding governmental interest.” Id. at 257-58, 102 S.Ct. at 1055. The AERC has simply failed to meet that burden here.
The majority suggests that Swanner’s constitutional rights must be accorded lesser weight because he voluntarily engages in the property management industry, and his right to engage in that business is not entitled to judicial protection. Opinion at 283-284. However, this court has stated that “the right to engage in an economic endeavor within a particular industry is an ‘important’ right for state equal protection purposes.” State v. Enserch Alaska Constr., Inc., 787 P.2d 624, 632 (Aaska 1989) (citing Commercial Fisheries Entry Comm’n v. Apokedak, 606 P.2d 1255, 1266 (Alaska 1980)). The ability to participate in a particular industry, such as rental property management, is therefore entitled to more protection under our state constitution than the majority acknowledges.
The majority incorrectly relies on Seward Chapel to arrive at its contrary conclusion. Unlike the present case, Seward Chapel did not involve a forced decision between giving up one’s livelihood or violating one’s religious beliefs. In Seward Chapel, we merely found that no religious belief required an exception to city zoning laws prohibiting the location of a parochial sehool on a specific site. 655 P.2d at 1302. No activity was totally prohibited; only the place in which it could be conducted was being regulated. I believe that there is a significant difference between the inconvenience placed upon Seward Chapel and the total abrogation of Mr. Swanner’s right to earn a living in his chosen profession while abiding by his sincerely held religious beliefs.
There is no basis in the record to conclude that an exemption in this case would create a substantial threat of harm.
In Frank, this court required that the state establish precisely how its interest would suffer if an exemption was granted to accommodate the religious conduct at issue. 604 P.2d at 1073. Thus, even accepting that the government has a strong interest in assuring available housing, the AERC must show how this interest will suffer in real terms if an exemption is granted to Swanner.
I see no evidence whatsoever in the record to suggest that Swanner’s conduct poses a substantial threat to public safety, peace or order such that the burden on Swanner’s rights is justified. For this reason, I fail to see why an exemption to accommodate Swan-ner’s religious beliefs is not warranted. Mere speculation that housing for unmarried couples may become scarce if an exemption is granted is insufficient to establish a compelling governmental interest. In Frank, we specifically criticized the state for speculating, without any supporting data, that an exemption to moose hunting regulations for an Athabascan funeral potlatch would open the flood gates to widespread poaching. Id. at 1074. We stated: “ ‘Justifications founded only on fear and apprehension are insufficient to overcome rights asserted under the First Amendment.’ ” Id. (quoting Teterud v. Burns, 522 F.2d 357, 361-62 (8th Cir.1975)). We further found that, since the state had not presented any evidence that so many moose would be taken for funeral potlatch ceremonies as to jeopardize appropriate population levels, it had not met its burden to justify curtailing the religious practice at issue. Id.6
*291As in Frank, the record here is completely devoid of any evidence to suggest that there are so many landlords or property managers in Anchorage whose religious beliefs are identical to Swanner’s as to constitute a substantial threat to available housing. In a city the size of Anchorage, it is difficult to conclude based on intuition alone that housing availability for unmarried couples will become so scarce as to constitute a substantial threat to community welfare. If there were some persuasive evidence to support such a conclusion, I may well have arrived at a different conclusion today.
Conclusion
I believe Swanner has been presented with a Hobson’s choice of either complying with the law or abandoning the precepts of his religion. Since the government’s interest in this particular law does not outweigh Swan-ner’s fundamental religious rights, Swanner should be granted an exemption to accommodate his beliefs. The AERC relies on nothing more than a pure conclusion that the state has a compelling interest in preventing marital status discrimination in housing. It has not presented any evidence that an exemption in this case would result in a substantial threat to housing availability. Nor does it explain exactly what is so invidious about marital status discrimination as to make its proscription a governmental interest of the highest order, comparable with the state’s interest in eradicating racial or gender discrimination. For these reasons, I fail to see how a limited exemption for Swanner and others similarly situated is not justified. In my opinion, the analysis and result set forth in this case will return to haunt this court in future decisions.
. See Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 884-90, 110 S.Ct. 1595, 1603-06, 108 L.Ed.2d 876 (1990).
. Significantly, the majority cites no cases to support the proposition that the state has a compelling interest'in eradicating marital status discrimination, particularly when the discrimination at issue must be balanced against interests of constitutional magnitude. Both Loomis Elec. Protection, Inc. v. Schaefer, 549 P.2d 1341 (Alaska 1976), and Hotel, Motel, Restaurant, Constr. Camp Employees and Bartenders Union Local 879 v. Thomas, 551 P.2d 942 (Alaska 1976), cite the general puipose statement of AS 18.80.200; however, neither case does so to establish the existence of a compelling state interest. Both cases involved gender discrimination, the eradication of which has been held to be a compelling interest, as I discuss infra. Neither case is applicable to the instant case, where marital status discrimination is involved and where the discriminating party is asserting a core constitutional freedom.
. While the majority contends that its decision today affects only Swanner’s conduct, not his religious beliefs, Opinion at 283, I do not believe that the Alaska Constitution distinguishes so clearly between religious belief and religious conduct. See Frank, 604 P.2d at 1070 (because of the close relationship between conduct and belief, and because of the high value we assign to religious beliefs, religiously impelled actions can be forbidden only where they are outweighed by a compelling governmental interest). See also Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1535-36, 32 L.Ed.2d 15 (1972) ("[Bjelief and action cannot be neatly confined in logic-tight compartments.”); Smith, 494 U.S. at 893, 110 S.Ct. at 1608 (O’Connor, J., concurring) (“Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause.”). I would hold that conduct that is motivated by sincere religious belief is presumptively protected by Article I, section 4.
. The majority pronounces that "the government views acts of discrimination as independent social evils_” Opinion at 283. This analysis ignores the specific issue here: discrimination in housing based on marital status-. Had Swanner’s religious beliefs compelled him to discriminate based on characteristics such as race or gender, I clearly would vote to deny an exemption. However, I am not convinced that marital status discrimination is or should be treated as comparable in any way to race or gender discrimination.
. While I recognize that Alaska's antidiscrimi-nation legislation is not substantially similar to comparable federal laws — see, e.g., Hotel, Motel, Restaurant, Constr. Camp Employees and Bartenders Union Local 879 v. Thomas, 551 P.2d 942, 945 (Alaska 1976) — the majority's failure to cite any authority for a compelling interest at the state level in this case leads me to make this comparison for further guidance.
. Our requirement of evidentiary support for the state's refusal to grant an exemption is well-supported by United States Supreme Court precedent. See Thomas v. Review Bd. of Indiana *291Employment Sec. Div., 450 U.S. 707, 719, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981) (rejecting state’s asserted reasons for refusing a religious exemption due to lack of evidence in the record); Wisconsin v. Yoder, 406 U.S. 205, 224-29, 92 S.Ct. 1526, 1537-40, 32 L.Ed.2d 15 (1972) (rejecting state’s argument concerning the dangers of a religious exemption as speculative and unsupported by the record); Sherbert v. Vemer, 374 U.S. 398, 407, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963) (“[Tlhere is no proof whatever to warrant such fears ... as those which the [state] now advance[s]."); see also Smith, 494 U.S. at 911, 110 S.Ct. at 1618 (Blackmun, J., dissenting) (state’s assertion that religious exemption for peyote use would harm health and safety of state citizens is unsupported and speculative).