(dissenting, with whom Nolan and Lynch, JJ., join). In keeping with their sincerely held religious beliefs, the defendants consider an unmarried couple’s living together in a sexual relationship to be an offense against God. Also in keeping with their sincerely held religious beliefs, the *341defendants consider enabling or assisting another in the commission of an offense against God to be itself an offense against Him. Responding to those religious convictions, and out of respect for the will of God, the defendants refused to rent an apartment to an unmarried couple living in a sexual relationship (cohabiting couple). The court now concludes that an evidentiary hearing — a trial — is required before a determination can be made concerning whether the defendants may lawfully be forced to choose between violating their religiously informed consciences or withdrawing from their commercial endeavors. I disagree. No combination of facts that might be found after a trial would legally justify the imposition of such a choice. I would affirm the summary judgment for the defendants.
I agree that,'as applied to this case, (1) art. 46, § 1, of the Amendments to the State Constitution provides at least as much protection to the free exercise of religion as does art. 2 of the Massachusetts Declaration of Rights and the First Amendment to the United States Constitution; (2) the court should reach its own conclusions on the scope of the protections of art. 46, § 1; and (3) in interpreting art. 46, § 1, the court should use the balancing test that the Supreme Court established in Wisconsin v. Yoder, 406 U.S. 205, 215-229 (1972), Sherbert v. Verner, 374 U.S. 388, 406-409 (1963), and subsequent opinions.
Because the defendants’ right to the free exercise of their religion is substantially burdened by the operation of G. L. c. 15IB, § 4 (6), ante at 324, a matter about which none of the Justices seems to disagree, the Commonwealth would be required at trial to prove that “it has an interest sufficiently compelling to justify that burden.” Ante at 322. In reviewing the entry of summary judgment for the defendants, then, the question before the court is whether the defendants have demonstrated “by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the [Commonwealth, which will have the burden of proof at trial], has no reasonable expectation of proving an essential element of [its] case.” Kourouvacilis v. General Motors *342Corp., 410 Mass. 706, 716 (1991). In my view, the defendants have succeeded in that regard. It is clear from the summary judgment materials that the Commonwealth can have no reasonable expectation of sustaining its burden of proving at trial an essential element of its case, which is that the Commonwealth has an interest in ensuring the availability of rental housing for unmarried couples with a sexual relationship — a relationship prohibited by G. L. c. 272, § 18 (1992 ed.) — that outweighs the defendants’ interest in conforming their conduct to the will of God without State-imposed penalty.
“[Mjarital status discrimination is not as intense a State concern as is discrimination based on certain other classifications.” Ante at 327. In contrast, the right to free exercise of religion is- a fundamental right. Thus, the Commonwealth’s interest in accommodating cohabitation cannot possibly outweigh the defendants’ interest in conforming their conduct to their religious conviction without penalty, regardless of whether, after a trial, a fact finder might be satisfied that “the rental housing policies of people such as the defendants can [not] be accommodated, at least in the Turners Falls (Montague) area, without significantly impeding the availability of rental housing for people who are cohabiting or wish to cohabit.” Ante at 329. Even if “discrimination of the sort challenged here [were to] present a significant housing problem if a large percentage of units [were to be] unavailable to cohabitants,” ante at 329, that is, even if discrimination of the sort challenged here were to make it difficult or impossible for unmarried couples to cohabit in Turners Falls or elsewhere, neither the court nor the Legislature can constitutionally give preference or priority to a so-called “right” of cohabitation over the moral and other fundamental values recognized in, and promoted by, the Massachusetts Constitution’s clearly articulated guarantees of the free exercise of religion.
The court states that “[t]here are factual circumstances that bear on the question [balancing of the State’s and the defendants’ interests], both as to the existence of a general *343State interest in the elimination of discrimination in housing based on marital status and as to the existence of a particularized State interest in the Turners Falls area. Uniformity of enforcement of the statute may be shown to be the least restrictive means for the practical and efficient operation of the antidiscrimination law.” Ante at 331. The court gives no hint of what circumstances could be shown that would permit a reasonable inference that the Commonwealth’s interest in eliminating discrimination in housing based on marital status can only be served by punishing landlords for holding fast to the commitments dictated by their religious beliefs. I can envision no such circumstances. This case is not even remotely similar to Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (eradication of racial discrimination in education is compelling State interest, superseding any free exercise right of petitioners) or United States v. Lee, 455 U.S. 252 (1982) (overriding interest in operation of national social security system is compelling) cited by Justice Wilkins. Ante at 330.
The court can safely say, and should hold, that it is clear from the submissions in this case that the Commonwealth has no reasonable expectation of proving an essential element of its case. The court should affirm summary judgment for the defendants. If the Massachusetts Constitution is to be effectively amended by giving rights of cohabitation preferred status over an individual’s right to live according to his or her religiously-informed conscience, a result I do not recommend, that amendment should be achieved by lawful procedures for constitutional amendment, not by judicial fiat.