Smith[1] - 12 Ca1.4th 1143 3040653 Smith V Fair Employment& Housing Com Page 1 of 78 12 Cal.4th 1143 5040653 Smith v Fair Employment 8 Housing

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Unformatted text preview: 12 Ca1.4th 1143, 3040653, Smith V. Fair Employment & Housing Com. Page 1 of 78 12 Cal.4th 1143, 5040653, Smith v. Fair Employment 8:. Housing Com. Page 1143 12 Cal.4th 1143 51 Cal.Rptr.2d 700 EVELYN SlVIITH, Petitioner, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Respondent; KENNETH C. PHILLIPS et 31., Real Parties in Interest. $040653. Supreme Court of California April 9, 1996 Page 1144 [Copyrighted Material Omitted] Page 1145 [Copyrighted Material Omitted] Page 1146 [Copyrighted Material Omitted] Page 1147 [Copyrighted Material Omitted] Page 1148 [Copyrighted Material Omitted] Page 1149 COUNSEL lan-Hummxz inrigenmh.mm/newmot/case.aso?DocId=-"1339&Index=D%3a%50dtSearch%50... 1 1/7/2007 12 Cal.4th 1143, 8040653, Smith V. Fair Employment & Housing Com. Page 2 of 78 Jordan W. Lorence, Cimron Campbell, Jane E. Hadro, Wendell R. Bird, Mark N. Troobnick and Jay Alan Sekulow for Petitioner. Loy Watkins, John G. Tulio, Alan J. Reinach, Boothby & Yingst, Lee Boothby, Oliver Thomas, Marc D. Stern, Jaffe, Trutanich, Scatena & Blum, Fred Blum, Proskauer, Rose, Getz & Mendelsohn, Jeffrey A. Berman, Page 1 150 Steven G. Drapkin and Lee W. Rierson as Arnici Curiae on behalf of Petitioner. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Andrea Sheridan Ordin, Chief Assistant Attorney General, Carole R. Kornblum, Assistant Attorney General, Manuel M. Medeiros, Louis Verdugo, Jr., Kathleen W. Mikkelson, Deputy Attorneys General, Steven C. Owyang, Prudence Kay Poppink, Eisen & Johnston Law Corporation, Jay—Allen Eisen, Marian M. Johnston and Ann Perrin Farina for Respondent. Arlo Smith, District Attorney (San Francisco), David C. Moon, Assistant District Attorney, Steven K. Green, Edward Tabash, John Beattie, Greenberg, Glusker, Fields, Claman & Machtinger and Roger L. Funk as Amici Curiae on behalf of Respondent. David Link and Thomas F. Coleman for Real Parties in Interest. James K. Hahn, City Attorney (Los Angeles), Charles I. Goldenberg, Assistant City Attorney, and Maria Perez Manning, Deputy City Attorney, as Amici Curiae on behalf of Real Parties in Interest. Marsha Jones Moutrie, City Attorney (Santa Monica), Joseph Lawrence, Assistant City Attorney, Martin T. Tachiki, Barry A. Rosenbaum and Kimery A. Shelton, Deputy City Attorneys, Jon W. Davidson, Carol A. Sobel, Paul L. Hoffinan, Mark D. Rosenbaum, Matthew A. Coles, Margaret C. Crosby, Tzivia Schwartz, Barbara H. Bergen, Margalynne Armstrong, James D. Smith, Ameila A. Craig, Wilson, Sonsini, Goodrich & Rosati and Clyde J. Wadsworth as Amici Curiae on behalf of Respondent and Real Parties in Interest. OPINION WERDEGAR, J .—- The California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA) declares it to be "unlawful [11] [fjor the owner of any housing accommodation to discriminate against any person because of the marital status of that person" (id. , § 12955, subd. (a)). The Fair Employment and Housing Commission (commission) ruled that a landlord violated the statute by refusing to rent an apartment to an unmarried couple. The Court of Appeal reversed, believing the state may not constitutionally apply FEHA to a landlord whose religious beliefs make it sinful to rent to an unmarried couple. We reverse the decision of the Court of Appeal. Page 1 151 I. Facts The relevant facts set out below are as found by the commission in its final decision. lama-Hm inrisearch_com/newr00flcase.aSD?DOCId=1339&Ind6X=D%3a%50dtSearch%SC... 1 1/7/2007 12 Cal.4th 1143, 8040653, Smith V. Fair Employment & Housing Com. Page 3 of 78 "Respondent [Evelyn Smith] owns and leases four rental units located [in two duplexes] at 675, 677, 683 and 685 Eastwood Avenue, Chico, California. They are operated exclusively for business and commercial purposes, with income generated from the rentals reported as business income. The business is not organized or classified as a religious, charitable or other nonprofit concern. Respondent does not reside in any of the four units and visits the units occasionally to maintain them. "When a vacancy occurs in one of the units, the unit is advertised for rent in local newspapers and is otherwise available to the general public. When prospective tenants inquire about a vacant unit, respondent tells them she prefers married couples. She prefers married couples because, for religious reasons, she opposes sex outside of marriage. However, since she has received so many calls from unmarried couples seeking to rent her units, she simply tells prospective tenants that she prefers to rent to married couples. "Respondent is a Christian. She is a member of Bidwell Presbyterian Church in Chico and has attended there for approximately 25 years. Respondent believes that sex outside of marriage is sinful, and that it is a sin for her to rent her units to people who will engage in nonmarital sex on her property. Respondent believes that God will judge her if she permits people to engage in sex outside of marriage in her rental units and that if she does so, she will be prevented from meeting her deceased husband in the hereafter. "Respondent has rented her units to single, divorced and widowed persons. Respondent has no religious objection to renting to people who are single, divorced, widowed or married. Respondent would not rent to anyone who engages in sex outside of marriage, whether they are single, divorced, widowed or married. Respondent rents her units to people without regard to their race, color, national origin, ancestry, or physical handicap. Respondent rents her units without regard to the religious beliefs of tenants. She does not know the religious background of most of her tenants because she never asks them and only knows if they volunteer the information. Respondent has rented her units to males and females and does not discriminate on the basis of sex. "From on or about March 29, 1987, to April 13, 1987, respondent advertised the availability of one of her units in the Chico Enterprise Record. Page 1152 Complainants [real parties ininterest Gail Randall and Kenneth Phillips] saw the advertisement on April 1, 1987, and drove by the unit that night. Because of the particular location, attractive architecture, convenient location and well maintained premises, complainants took a special interest in the unit and the next morning called respondent and arranged to see it. During this telephone conversation respondent stated that she preferred to rent to married couples. "On or about April 2, 1987, complainants met with respondent and were shown the premises, which they liked very much. Respondent told complainants that she would not rent to unmarried couples, and she asked complainants how long they had been married. Complainant Phillips falsely represented to respondent that he and complainant Randall were married. Complainants made no commitment to rent at that time and filled out an informal application for respondent. Complainant Randall signed her name, 'Gail Phillips' on that document. "Later, complainants called respondent and told respondent they were interested in renting the unit. They met with respondent on or about April 7, 1987. A lease agreement was executed between the parties on that date for the unit located at 677 Eastwood Avenue. It was for a month—to—month tenancy L44“ . II": n-n-nx r :111‘:CID01‘D]’\ r-nm l‘hP‘fonnf/PQ QP q q . . 1 12 Ca1.4th 1143, 8040653, Smith v. Fair Employment & Housing Com. Page 4 of 78 commencing May 1, 1987 at a rent of $325 per month. Complainants also paid respondent a security deposit of $150 for which a receipt was given. Complainant Randall signed the lease agreement, 'Gail Phillips'. During this meeting respondent told complainants again that she would not rent to unmarried couples. "Later in the day on April 7, 1987, complainant Randall called respondent and asked if respondent doubted that Randall and Phillips were married. Randall asked respondent if she wanted to see their marriage license. Respondent said, 'No.’ Still later on the same day, complainant Phillips called respondent and told her that he and Randall were not married. Respondent told him that she could not rent to an unmarried cohabiting couple because that would violate her religious beliefs. Respondent said that she would return their deposit. She sent them a check for $150." Randall and Phillips filed separate complaints against Smith with the commission. Based on the complaints, the commission issued two accusations. As subsequently amended, the accusations alleged Smith had violated Government Code section 12955, subdivisions (a), (b), (c) and (d), [A] Civil Page 1153 Code section 51 (the Unruh Civil Rights Act), [-2] and Government Code section 12948. [3] A hearing before an administrative law judge ensued. Smith defended the accusations on two grounds that are relevant here: first, the relevant provisions of FEI—IA (Gov. Code, § 12955, subd. (a)) and the Unruh Civil Rights Act (Civ. Code, § 51) do not prohibit discrimination against unmarried couples; second, to require her to rent to an unmarried couple over her religious objections would violate the free exercise clauses of the federal and state Constitutions. (U .S. Const., lst Amend; Cal. Const., art. I, § 4.) The judge rejected both arguments and issued a proposed decision in favor of Randall and Phillips. The commission subsequently exercised its power not to adopt the proposed decision and to hear the case itself on the existing record. (Gov. Code, § 11517, subd. (c).) After additional briefing, the commission issued its decision in favor of Randall and Phillips. In its decision, the commission found that Smith had violated Government Code sections 12955, subdivisions (a) and (d), Civil Code section 51, and Government Code section 12948. More particularly, the commission decided that FEHA's prohibition of discrimination based on "marital status" did encompass discrimination against unmarried couples, and that the Unruh Civil Rights Act prohibited all forms of arbitrary discrimination by business establishments, including discrimination against unmarried couples. The commission concluded it had no Page 1154 power to address Smith's constitutional arguments in view of article III, section 3.5, of the California Constitution. [4] As relief, the commission ordered Smith to cease and desist from discriminating on the basis of marital status; to post and give to prospective tenants various notices setting out the provisions of FEHA, the outcome of this case, and the statement that Smith practices equal housing opportunity; and to pay Randall and Phillips a total of $454 in compensatory damages and $500 in damages for emotional distress. [g] The commission dismissed the remaining claims as untimely. Smith sought review of the commission’s decision by petition for writ of mandate. (See Code Civ. Proc., § 1094.5.) The Court of Appeal reversed. The court held the state could not prevent Smith from L44»... [/111117111 :nfiaom-nl». nnm lnpurrnnt/nnqp, QQnVDnan=l 339&Index=D%3a%50dtSearch%5c... 12 Ca1.4th 1143, 8040653, Smith v. Fair Employment & Housing Com. Page 5 of 78 discriminating against unmarried couples, in View of the free exercise clauses of the federal and state Constitutions (U .S. Const, lst Amend; Cal. Const, art. I, § 4) and the Religious Freedom Restoration Act of 1993 (42 U.S.C. § 2000bb et seq.). The court also concluded that Smith's inquiry into her tenants' marital status did not violate their right to privacy under the state Constitution. (Cal. Const., art. I, § 1.) [5—] The court did not address Smith's argument that FEHA (Gov. Code, § 12955, subd. (a)) and the Unruh Civil Rights Act (Civ. Code, § 51; see also Gov. Code, § 12948) do not prohibit discrimination against unmarried couples. We granted review. 11. Discussion A. Does FEHA Prohibit Housing Discrimination Against Unmarried Couples? In FEHA, the Legislature declared it "unlawful [1U [fjor the owner of any housing accommodation to discriminate against any person because of Page 1155 the marital status of that person" (Gov. Code, § 12955, subd. (a)) or "to cause to be made any written or oral inquiry concerning the marital status of any person seeking to rent or lease any housing accommodation" (id. , subd. (b)). The commission found Smith violated FEHA by refusing to rent to Randall and Phillips upon learning they were not married. Smith argues "the statutory ban on marital status discrimination does not include [unmarried] cohabiting couples." The argument lacks merit. To determine what a statute means, "we first consult the words themselves, giving them their usual and ordinary mean— ing." (DaFonte v. Up~Right, Inc. (1992) 2 _C_at_l,4_th59_?a,, 601 [7 Cal.Rptr.2d 23 8].) The usual and ordinary meaning of the words "marital status," as applied to two prospective tenants, [1] is that a landlord may not ask them whether they are married or refuse to rent to them because they are, or are not. Smith asked whether Randall and Phillips were married and refused to rent to them because they were not. The conclusion that she thereby violated FEHA seems unavoidable. [5] Various amici curiae argue that Smith's refusal to rent to Randall and Phillips does not violate FEHA because it was based on Smith's assumptions about their sexual conduct rather than their marital status. The high courts of Alaska and Massachusetts recently rejected similar arguments. (Swanner v. Anchorage Equal Rights Com’n (Alaska 1994) 874 P.2d 274, 278, fn. 4 [874 P.2d 274] [interpreting Alaska Stat. § 1880.240]; Attorney General V. Desilets (1994) 418 Mass. 316, 320 [636 N.E.2d 233, 23 5] [interpreting Mass. Gen. Laws Ann. ch. 151B, § 4(6)].) Interpreting a statute analogous to FEHA, the court in Swanner, supra, explained its conclusion in this way: a landlord "cannot reasonably claim that he does not rent or show property to cohabiting couples based on their conduct (living together outside of marriage) and not their marital status when their marital status (unmarried) is what makes their conduct immoral in his opinion." (Swanner v. Anchorage Equal Rights Com’n, supra, 874 P.2d at p. 278, tn. 4.) The opinion of the Page 1156 1.4+...” ,,,,,, , ammomh mm/nmmnm/nhqe. agnVDncm=1339&Index=D%3a%5cdtSearch%5c... 11/7/2007 12 Cal.4th 1143, 8040653, Smith V. Fair Employment & Housing Com. Page 6 of 78 Supreme Judicial Court of Massachusetts in Attorney General V. Desilets, supra, is to the same effect. [2] Smith argued before the commission, and various amici curiae argue here, that Government Code section 12955 can be read as protecting single, married, widowed, and divorced individuals rather than unmarried couples. However, to acknowledge the statute protects the former, as it undoubtedly does, in no way tends to show it does not also protect the latter. The statutory language banning discrimination based on "marital status" naturally carries both meanings. Our own Legislature's use of the words "marital status" in other statutes confirms this. Where the Legislature has, in some particular context, wished to treat married and unmarried couples identically, it has chosen to convey that idea by requiring equal treatment regardless of "marital status." In Family Code section 7602, for example, the Legislature declared that "[t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents." (Italics added.) In Family Code section 1830, the Legislature gave jurisdiction to the family conciliation court over child custody controversies "between parents regardless of their marital status ...." (Italics added.) In Probate Code section 6450, subdivision (a), the Legislature declared, for purposes of determining intestate succession, that "[t]he relationship of parent and child exists between a person and the person's natural parents, regardless of the marital status of the natural parents." (Italics added.) The commission has interpreted Government Code section 12955 to protect unmarried couples since 1980, when FEHA was enacted. (See Dept. of Fair Empl. & Hous. v. Smith (1989) FEHC Dec. No. 89-11, at pp. 5~6, revd. on other grounds Smith V. Fair Employment & Housing Com. [:5] (Cal.App.); Dept. of Fair Empl. & Hous. v. Donahue (1989) FEHC Dec. No. 89—10, at pp. 4—5, revd. on other grounds Donahue v. Fair Employment and Housing Com. * (Cal.App.); Dept. of Fair Empl. & Hous. v. Andrews (1984) FEHC Page 1157 Dec. No. 84—14, pp. 4—5; Dept. of Fair Empl. & Hous. v. Helfi'ich (1981) FEHC Dec. No. 81-08, at pp. 5—6; Dept. of Fair Empl. & Hous. v. Bequette (1980) FEHC Dec. No. 80—29, pp. 3—5; Dept. of F air Empl. & Hous. v. Hess (1980) No. 80—10, FEHC Precedential Decs. 1980—1981, CEB 3, p. 2.) Final responsibility for interpreting the law rests with the courts rather than with administrative agencies. (Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753, 757 [151 P.2d 233, 155 A.L.R. 405].) Still, the commission's interpretation of FEHA is entitled to consideration because the commission is the agency charged with the statute's administration. (Gov. Code, § 12930.) It has been said the responsible agency's interpretation is entitled to "great weigh " when, as here, it is substantially contemporaneous with the statute's enactment. This is because such interpretations " 'are highly relevant and material evidence of the probable general understanding of the times and of the opinions of men [and women] who probably were active in the drafting of the statute.’ " (Whitcomb Hotel, Inc. v._ Cal. Emp. Com, supra, 24 Cal.2d at pp. 756-757, quoting White v. Winchester Club (1942) 315 US. 32, 41 [86 L.Ed. 619, 626, 62 S.Ct. 425]; see also Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 439311,; @1319, 1388 [241 Cal.Rptr. 67].) The commission first interpreted Government Code section 12955 to bar discrimination against unmarried persons less than two months after the Governor signed it into law. (See Dept. of Fair Empl. & Hous. v. Bequette, supra, FEHC Dec. No. 80—29, pp. 3—5 [dated Nov. 6, 1980]; Stats. 1980, ch. 992, § 2, p. 3154 [reflecting Governor's approval on Sept. 19, 1980].) The weight due the responsible agency's interpretation of a statute increases when, as here, the agency's interpretation is uniform and of long standing. (Whitcomb Hotel, Inc. v. Cal. Emp. Com, supra, 24 Cal.2d at p. 757; see also Hoyt V. Board of Civil Service Commrs. (1942) 21 Cal.2d 399, 402 [132 P.2d Luau/“mm, inrimnarr-l’i nnm/np\mnnt/n2§e.2§n?nncld=l339&IndeX=D%3a%50dtSBaICh%50... 11/7/2007 12 Cal.4th 1143, 8040653, Smith v. Fair Employment & Housing Com. Page 7 of 78 804]; Los Angeles v. Superior Court (1941) 17 Cal.2d 707, 712 [112 P.2d 10].) Nothing in the legislative history of Government Code section 12955 contradicts the established interpretation. If the history sheds any light on the matter, it tends to support that interpretation. The language prohibiting discrimination in housing accommodations "because of marital status" derives from the Rumford Fair Housing Act of 1963 (Rumford Act) (former Health & Saf. Code, § 35720), which FEHA superseded. As originally enacted, the Rumford Act did not refer to "marital status." (Stats. 1963, ch. 1853, § 2, p. 3824.) The Legislature added those words in 1975. (Stats. 1975, ch. 1189, § 3, pp. 2943-2944.) While the 1975 amendment was under consideration, representatives of the Attorney General's Office advised the Legislature in hearings that one of Page 1158 its effects would be to override prior law (Bus. & Prof. Code, § 125.6), which the Attorney General had interpreted as permitting licensed realtors acting as property managers to select tenants "on the basis of a blood or marital relationship between the prospective occupants or a lack of such relationship ...." (Letter from Attorney General to Assemblyman Dixon (Aug. 26, 1974) quoted in 9 Assem. J. (1973—1974 Reg. Sess.) p. 17400.) That the Legislature understood the 1975 amendment would protect unmarried cohabitants can also be inferred from the text of the amendment. An exception to the amendment, which continues in FEHA (Gov. Code, § 12995, subd. (a) (2)), expressly permitted "any postsecondary educational institution" to provide "housing accommodations reserved for either male or female students or married students ...." (Former Health & Saf. Code, § 35741.5, added by Stats. 1975, ch. 1189, § 6, p. 2947.) The exception had no apparent purpose unless the amendment, without the exception, would have required educational institutions to permit unmarried male and female students to live together, or prevented discrimination in favor of married students. Soon after the Governor signed the 1975 amendment into law, the court in Atkisson v. Kern County Housing Authority (1976) 59 Cal.App.3d 89, 99-100 [130 Cal.Rptr. 375] interpreted the amendment as "a general policy statement" making "unlawful" a public housing authority's policy of forbidding a tenant to live with persons of the opposite sex not related to the tenant by blood, marriage, or adoption. Atkisson was the only judicial interpretation of the statutory language barring housing discrimination because of "marital status" in 1980, when the Legislature decided to reuse the language in the new FEHA. It is frequently said that "[w]hen a statute has been construed by the courts, and the Legislature thereafter reenacts that statute without changing the interpretation put on that statute by the courts, the Legislature is presumed to have been aware of, and acquiesced in, the courts' construction of that statute." (People v. Bouzas (1991) _5_3_C_a__1.3_(_i_4u6m7, 475 [279 Cal.Rptr. 847]; see also Wilkofi’v. Superior Court (1985) [email protected],3d345, 353 [211 Cal.Rptr. 742]; People v. Hallner (1954) 43_CaL2d_’/_l§, 719 [277 P.2d 393]; People v. Fox (1977) Z3._C_a_l_.App_.3_d_1]8, 181 [140 Cal.Rptr. 615].) The new FEHA received the same interpretation as did the old Rumford Act. In 1982, the court in Hess v. Fair Employment & Housing Com. (1982) 138 Ca1.App_.,3_dM232 [187 Cal.Rptr. 712] upheld the commission's finding that the owners of a duplex had violated Government Code section 12955 by rescinding a rental agreement with a man and a woman upon learning they were not married. The court relied on Atkisson v. Kern Luau/“mm, inriepnrnlfl r-nm/nemnnt/nnge.a§n?nncld=l 339&lndex=D%3a%5cdtSearch%50... 11/7/2007 12 Cal.4th 1143, 3040653, Smith V. Fair Employment & Housing Com. Page 8 of 78 Page 1159 County Housing Authority, supra, 59 Cal.App.3d 89, in holding that the language of FEHA "prohibits discrimination based on marital status, including that against unmarried couples." (Hess 12. Fair Employment & Housing Com, supra, 138 Ca1.App.3d at p. 235.) In the ensuing 13 years, no court has suggested the statute should be interpreted differently. Smith gives the question of FEHA‘S interpretation cursory treatment in her brief. As mentioned, she takes the position Government Code section 12955 does not protect unmarried cohabitants. Her argument consists of acknowledging that the decisions in Hess v. Fair Employment & Housing Com. , supra, 138 Ca1._A_pp.3d 232, and Atkisson V. Kern County Housing Authority, supra, 59 Cal.App.3d 89, are to the contrary, and citing without discussion opinions from other states interpreting differently statutes similar to FEHA. Smith does not cite other, more recent decisions contrary to her position. (Attorney General v. Desilets, supra, 418 Mass. at p. 320 [636 N.E.2d at p. 23 5]; Worcester Hous. Auth. V. Massachusetts Comm 'n Against Discrimination (1989) 406 Mass. 244 [547 N.E.2d 43]; Swanner V . Anchorage Equal Rights Com’n, supra, 874 P.2d at p. 278; Foreman v. Anchorage Equal Rights Com'n (Alaska 1989) 779 P.2d 1199, 1201—1203.) Some of the cases Smith cites are of little value for our purposes. The courts in Illinois, Minnesota, and Washington had the burden of reconciling statutes barring discrimination because of "marital status" with other statutes criminalizing private sexual conduct between consenting adults. (Mister v. ARK. Partnersth (1990) 197 lll.App.3d 105, 113—114 [143 Ill.Dec. 166, 553 N.E.2d 1152, 1157]; State by Cooper v. French (Minn. 1990) 460 N.W.2d 2, 5—6; McFadden V. Elma Country Club (1980) 26 Wn.App. 195, 201—202 [613 P.2d 146, 150].) We do not labor under the same burden. [m] In 1975, a few months before the Legislature amended the Rumford Act to prohibit housing discrimination because of "marital status," the Legislature repealed the laws criminalizing private, sexual conduct between consenting adults. (See Stats. 1975, ch. 71, § 7, p. 133; see generally Note, California "Consenting Adults ” Law: The Sex Act in Perspective (1976) 13 San Diego L.ReV. 439.) Smith also cites an opinion by the high court of Wisconsin, in which the court declared a county ordinance similar to FEHA "invalid to the extent that it [sought] to protect ‘cohabitants' ...." (County of Dane v. Norman Page 1 160 (1993) 174 Wis.2d 683, 688 [497 N.W.2d 714, 716].) The court reasoned the county had no power to enact statutes "inconsistent with the public policy of [Wisconsin,] which seeks to promote the stability of marriage and family." (11nd) We have no analogous power to invalidate a state statute, such as Government Code section 12955, on nonconstitutional grounds. The argument is illogical in any event: one can recognize marriage as laudable, or even as favored, while still extending protection against housing discrimination to persons who do not enjoy that status. An opinion by the high court of New York (Hudson View Properties v. Weiss (1983) 59 N.Y.2d 733 [463 N.Y.S.2d 48, 450 N.E.2d 234]) is not on point. Without expressly deciding Whether or not a statute barring discrimination because of "marital status" applied to unmarried couples, the court held that "the issue arises not because the tenant is unmarried, but because the lease restricts occupancy of her apartment to the tenant and the tenant's immediate family." (Id. , at p. 735 [463 N.Y.S.2d at p. 429, 450 N.E.2d at p. 235] [interpreting N.Y. Exec. Law, § 296, subd. 5(a).].) One can argue from the result that New York courts would not interpret their statute as applying to unmarried couples. But the cursory opinion offers no real assistance on the issue. Law/1mm" inriopqrnln mm/nmmnnr/mge_agn?Dnc1d=1339&Index=D%3a%5cdtSearch%50... 11/7/2007 12 Cal.4th 1143, 8040653, Smith V. Fair Employment & Housing Com. Page 9 of 78 A lower court in Maryland (Prince George’s County v. Greenbelt Homes, Inc. (1981) 49 Md.App. 314 [431 A.2d 745]) did interpret a statutory ban on "marital status" discrimination as not protecting unmarried couples. The court permitted a housing association to refuse to approve the sale of a house to an unmarried couple. The court reasoned that "neither complainant (each of whom was 'single,‘ 'unmarried') was denied membership individually because of his or her individual marital status. While each separately had a marital status, collectively they did not." (Id. , at p. 319 [431 A.2d at pp. 747-748], italics omitted.) The Maryland court's reasoning cannot easily be applied to California law. Our Legislature, as mentioned, has used the words "marital status" to refer to the presence or absence of the marital relationship between two individuals. (E.g., Pam. Code, §§ 1830, 7602; Prob. Code, § 6450.) Ultimately, the question must be answered as a matter of California law. In view of Government Code section 12955's language, its uniform and long-standing interpretation by the commission and the courts, and its legislative history, we conclude that FEHA does protect unmarried cohabitants against housing discrimination. [ll] Page 1161 B. Does Federal or State Law Require the State to Exempt Smith From FEHA to Avoid Burdening Her Religious Exercise? Having concluded that Smith violated FEHA, we must now determine whether the state is required to exempt her from that law to avoid burdening her exercise of religious freedom. Although the question has arisen in three other states, only the Supreme Court of Alaska has decided it. That court rejected the landlord‘s claim to an exemption. (Swanner v . Anchorage Equal Rights Com’n, supra, 874 P.2d at pp. 279-280, cert. den. (1994) __ U.S. __ [130 L.Ed.2d 368, 115 S.Ct. 460].) The Supreme Judicial Court of Massachusetts found the question inappropriate for resolution by summary judgment and remanded for further evidentiary proceedings. (Attorney General v. Desilets, supra, 418 Mass. at pp. 320—3 34 [636 N.E.2d at pp. 235 ~243].) The Supreme Court of Minnesota, which interpreted Minnesota law as permitting discrimination against unmarried couples, for that reason did not address the landlord's claim to an exemption. (State by Cooper V. French, supra, 460 N.W.2d at p. 11.) Smith's claim to an exemption implicates three areas of law: the First Amendment to the United States Constitution, the Religious Freedom Restoration Act of 1993 (42 U.S.C. § 2000bb et seq), and article 1, section 4, of the California Constitution. We consider each in turn. 1. The First Amendment. The First Amendment does not support Smith's claim. Her religion may not permit her to rent to unmarried cohabitants, but “the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " (Employment Div., Ore. Dept. of Human Res. 12. Smith (1990) 494 US. 872, 879 [108 L.Ed.2d 876, 886, 110 S.Ct. 1595], quoting United States v. Lee (1982) 455 US. 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 Page 1 162 lan-Humimv inri negro}: (tnm/nEWDDf/CBSB.3_SD?DOCId=1339&IndeX=D%3a%50dtseaICh%5C... l. 12 Cal.4th 1143, S040653, Smith V. Fair Employment & Housing Com. Page 10 of 78 undertaken for religious reasons. (See Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U._S_, 520, 566 [124 L.Ed.2d 472, 512, 113 S.Ct. 2217].) Consequently, section 12955 does not violate the free exercise clause as interpreted in Employment Div., Ore. Dept. of Human Res. v. Smith, supra. The foregoing principles reflect the latest evolution in the United States Supreme Court's understanding of the free exercise clause. While they bar Smith's claim under the federal Constitution to an exemption from FEHA, to assist in understanding her claims under the Religious Freedom Restoration Act and the California Constitution we review how the free exercise clause was interpreted in the past and how the high court arrived at the current understanding articulated in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 US. 872. In the earliest cases arising under the free exercise clause, the high court held that, while freedom of religious belief was absolutely protected, the government might regulate conduct. That a generally applicable law incidentally burdened a person's right to fieely exercise his or her religion was not considered a valid objection to the law's enforcement. (E.g., Reynolds v. United States (1878) 98 US. (8 Otto) 145, 167 [25 L.Ed. 244, 250-251] [upholding application of polygamy statute to person whose religious beliefs required polygamous marriages].) The court later came to view the distinction between belief and conduct as an insufficient basis for resolving conflicts between religious exercise and generally applicable laws. (Wisconsin v. Yoder (1972) 406 US. 205, 220 [32 L.Ed.2d 15, 28, 92 S.Ct. 1526] ["in this context belief and action cannot be neatly confined in logic-tight compartments"].) Thereafter, instead of simply distinguishing between belief and conduct, the court weighed the burden on religious exercise against the government's interest in applying the law. If the burden was substantial and outweighed the government's interest, the government was required to accommodate the religiously motivated conduct by exempting it fiom the law. [12-] If, on the other hand, the government's interest was of sufficient importance to outweigh the burden on religious Page 1 163 exercise and could not be achieved by less restrictive means, no accommodation was required. [1;] Governmental interests thought to be sufficient for these purposes were variously described as "compelling" (Sherbert v. Verner, supra, 374 US. at p. 403 [10 L.Ed.2d at p. 970]), "strong" (id. at p. 408 [10 L.Ed.2d at p. 973]), "of the highest order" (Wisconsin v. Yoder, supra, 406 US. at p. 215 [32 L.Ed.2d at p. 25]), and "very high" (United States V. Lee, supra, 455 US. at p. 259 [71 L.Ed.2d at p. 133]). An accommodation was not required if the burden on religious exercise was not considered substantial. [14] This approach to cases involving generally applicable laws that incidentally burdened religious exercise—balancing the state's interest against the burden on free exercise—~came to be known as the "compelling interest" test after the language used in Sherbert v. Verner, supra, 374 US. at page 404 [10 L.Ed.2d at pages 970-971]. In 1990, in the case of Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 4941;; L2,, the high court abandoned balancing as a way of adjudicating religiously motivated challenges to generally applicable laws. The case was brought by employees of a private drug rehabilitation program, who were fired from their jobs and denied state unemployment benefits because they had used the drug peyote for sacramental purposes at a ceremony of the Native American Church. The employees challenged the denial of benefits as a Violation of the free exercise clause. The Oregon Supreme Court ordered the benefits reinstated. The court reasoned the state's interest in preserving the financial integrity of the unemployment compensation fund did not outweigh the burden on the plaintiffs' religious exercise. (Smith v. Employment Div. (1986) 301 Or. 209, 217—219 [721 P.2d 445, 449-450].) laHn-Nurumv inriqenrnl’i nnm/nemnnt/Case_asn?DOCld=l339&Ind6X=D%3a%5CdtSeaI‘Cl1%SC... 11/7/2007 12 Cal.4th 1143, SO40653, Smith V. Fair Employment & Housing Corn. Page 11 of 78 Page 1 164 The United States Supreme Court reversed. Repudiating the balancing test set out in such cases as Sherbert v. Verner, supra, 374 US. 3128, and Wisconsin v. Yoder, supra, 406 US. 205, the court explained: "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." (Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 US. at pp. 878—879 [108 L.Ed.2d at p. 885].) The court distinguished earlier cases granting exemptions for religiously motivated conduct as involving "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as fieedom of speech and of the press [citations]." (Id at p. 881 [108 L.Ed.2d at p. 887].) To the argument that, "when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation" (id. at p. 882 [108 L.Ed.2d at p. 888]), the court replied: "We have never held that, and decline to do so now" (ibid). In 1993, Congress restored the "compelling interest" test as a matter of statutory law by enacting the Religious Freedom Restoration Act. (42 U.S.C. § 2000bb et seq.) We shall address the act, as well as its application to this case, in the next section of this opinion. Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 US. 472, disposes of Smith's claim under the free exercise clause of the federal Constitution. The Smith opinion, however, might be read as still requiring a court to apply the "compelling interest" test when a generally applicable law burdens a so—called "hybrid right," i.e., the right of flee exercise in combination with another constitutional right. (Cf. id. at pp. 881—882 [108 L.Ed.2d at pp. 887—888].) The argument is based on the high court's statement that past decisions creating exceptions to generally applicable laws involved "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections ...." (Id. at p. 881 [108 L.Ed.2d at p. 887].) The remedial order issued against Smith requires her to post a sign informing prospective tenants of their rights under FEHA, among other things. This, she asserts, violates her right to freedom of speech. [15—] The parties opposed to Smith's position argue the high court's discussion of hybrid rights was not intended to preserve the balancing test for any class of cases, but was, instead, merely a part of the court's explanation of why it Page 1165 was rejecting the assertion the First Amendment requires accommodation of religiously motivated conduct. (See ante, p. 1164.) We need not, and do not, consider the "hybrid rights" issue. Assuming for the sake of argument the opinion in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 424g,s_.i7_2_, does preserve the "compelling interest" test in cases involving "hybrid rights," the effect is simply to require us to apply the same test we must apply in any event under the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq). We turn now to the act. 2. The Religious Freedom Restoration Act. The Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.) (hereafter RFRA, or the act) provides that " [g] overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subdivision (b)." (42 U.S.C. § 2000bb-1(a).) Under subdivision (b), "[g]overnrnent may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person—- [1]] (l) is in furtherance of httn'Hum/‘ur inri search.cnm/newr00t/case.aSD?DOCId=1339&Ind6X=D%3 a%5cdtSearch%5c... 1 1/7/2007 12 Cal.4th 1143, 8040653, Smith V. Fair Employment & Housing Com. Page 12 of 78 a compelling governmental interest; and [1]] (2) is the least restrictive means of furthering that compelling governmental interest." (42 U.S.C. § 2000bb-l(b).) RFRA applies to this case. Broadly and expressly retroactive, the act "applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993 [the date on which RFRA became effective]." (42 U.S.C. § 2000bb-3 (a).) Smith has standing to invoke RFRA because she claims FBI-IA burdens her religious exercise. Under RFRA, " [a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." (42 U.S.C. § 2000bb—l(c).) [lg] In applying RFRA to this case, we look to the entire body of case law interpreting the free exercise clause prior to Employment Div., Ore. Dept. Page 1 166 of Human Res. v. Smith, supra, 494 US. 872. That we must do so is evident from the language of the act, its legislative history, and federal judicial decisions interpreting it. In the act, Congress articulated its understanding that "the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." (42 U.S.C. § 2000bb(a) (5).) Congress also declared its intent "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 US. 398 and Wisconsin v. Yoder, £95111 _. S295 (1972)...." (42 U.S.C. § 2000bb(b) (1).) The references to Sherbert and Yoder are illustrative only: the legislative history shows Congress did not intend to "express approval or disapproval of the result reached in any particular court decision involving the flee exercise of religion, including those cited in the act itself. [Instead, the] bill is not a codification of the result reached in any prior free exercise decision but rather the restoration of the legal standard that was applied in those decisions. Therefore, the compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith. " (Sen.Rep. No. 103—111, 1st Sess., p. 9 (1993), reprinted in 1993 US. Code Cong. & Admin. News, at p. 1898 [Senate Judiciary Committee Report], italics added.) Federal courts have followed this advice in applying RFRA by looking to the entire body of case law decided before Employment Div., Ore. Dept. of Human Res. v. Smith, supra. (E.g., American Life League, Inc. v. Reno (4th Cir. 1995) 47 F.3d 642, 655, fir. 6 [quoting the Sen. Judiciary Com. Rep]; T hiry V. Carlson (D.Kan. 1995) 887 F.Supp. 1407, 1412.) Read together, RFRA, the decisions interpreting RFRA, and the decisions interpreting the free exercise clause prior to Employment Div, Ore. Dept. of Human Res. v. Smith, supra, 494 US 872, prescribe the following analysis for cases in which a neutral, generally applicable law is claimed to burden the exercise of religion: (1) The burden must fall on a religious belief rather than on a philosophy or a way of life. [11] (2) The burdened religious belief must be sincerely held. [135] (3) The plaintiff must prove the burden is substantial or, in other words, legally significant. [-12] (4) If all of the foregoing are true, the government must "demonstrate that application of the burden Page 1167 to the person [1]] is in furtherance of a compelling governmental interest; and [fl is the least restrictive means of furthering that compelling interest." (42 U.S.C. § 2000bb-l(b).) [‘39] Randall, Phillips, and various amici curiae urge us to add a preliminary step to this analysis by asking, first, whether the activity subject to the challenged law constitutes the exercise of religion. The hftn-Hmnw inrigenmh_cnm/newmotjcase.asn?DocId=1 339&lndex=D%3a%50dtSearch%50... 1 1/7/2007 12 Cal.4th 1143, 8040653, Smith V. Fair Employment & Housing Com. Page 13 of 78 renting of apartments does not, they argue, and for that reason is not entitled to protection under RFRA. We cannot dispose of Smith's claim so easily. The religious practice FEHA is alleged to burden is not the renting of apartments, but Smith's practice of not committing the sin she believes inheres in ' renting to unmarried cohabitants. That the alleged burden is indirect is irrelevant; the same is true of virtually all of the cases decided under the accommodation doctrine that RFRA codified. (Cf. Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 49~4LLS,_822, 894 [108 L.Ed.2d 876, 895] (conc. opn. of O'Connor, J.) ["fcw States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the eflect of significantly burdening a religious practice"] (italics added).) While the renting of apartments may not constitute the exercise of religion, if Smith claims the laws regulating that activity indirectly coerce her to violate her religious beliefs, we cannot avoid testing her claim under the analysis codified in RFRA. We turn to that analysis now. That Smith's Christian beliefs are religious and that she sincerely holds them is not seriously in question. An effort was made in the hearing before the commission to show that Smith's church, the Presbyterian Church, U.S.A., does not share her view that renting to unmarried couples is a sin. That such testimony might help to evaluate a person's sincerity is not inconceivable. "One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause ...." (Thomas v. Review Board, supra, 450 US. at p. 715 [67 L.Ed.2d at p. 632].) However, "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit Page 1168 First Amendment protection." (Id. at p. 714 [67 L.Ed.2d at p. 631].) Instead, all that is necessary to establish the required sincerity is "an honest conviction" that one's religion prohibits the conduct required by law. (Id. at p. 716 [67 L.Ed.2d at p. 632].) We therefore continue with the required analysis. The parties disagree on the question whether Government Code section 12955, which forbids Smith to discriminate against unmarried cohabitants, substantially burdens the exercise of her religion. The answer to the question is critical. Under RFRA, unless the challenged law imposes a substantial burden, the government need not demonstrate a compelling interest justifying the law or show that the law is the least restrictive means to further the interest. (See 42 U.S.C. § 2000bb—1(a) & (b); see also Goodall by Goodall v. Stafford County School Bd, supra, 60 F.3d at p. 171; American Life League, Inc. v. Reno, supra, 47 F.3d at p. 654; Werner v. McCotter, supra, 49 F.3d at p. 1480.) The same held true under the free exercise clause prior to Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 US. 872. (See, e.g., Swaggart Ministries v. Cal. Bd. of Equalization, supra, 493 US. at pp. 384—392 [107 L.Ed.2d at pp. 805—811]; Hernandez v. Commissioner, supra, 490 US. at p. 699 [104 L.Ed.2d at p. 786]; Tony & Susan Alamo Foundation v. Sec'y of Labor, supra, 471 US. at pp. 303—305 [85 L.Ed.2d at pp. 289—291]; Braunfeld 11. Brown, supra, 366 US. at pp. 605—606 [6 L.Ed.2d at pp. 567—568].) One can imagine an accommodation doctrine, such as that which RFRA embodies, without the threshold requirement of a substantial burden. The resulting law would look something like this: when a person understood his or her religious beliefs as demanding that an activity be conducted in a particular way, and when the state required the activity to be conducted in a different way, the state would in every such instance be obliged to justify its law with a compelling interest and a showing that the law represented the least restrictive means to further the interest. Because religious beliefs can affect all aspects of life, and because each person may define his or her own religious beliefs, even if those beliefs are not "acceptable, logical, consistent, or comprehensible to others" (Thomas v. Review Board, supra, 450 US. at p. 714 [67 L.Ed.2d at p. 631]), to abandon the threshold requirement of a substantial burden httn-Numminrisearch.com/neerOt/CELSB.aSD?DOCId=1339&IndCX=D%3a%50dtsearch%5c... 1 1/7/2007 12 Ca1.4th 1143, 8040653, Smith v. Fair Employment & Housing Com. Page 14 of 78 would considerably alter the nature and efficacy of legal duties in our constitutional system: each person would unilaterally decide, in each of the multitude of situations affected by state regulation, which laws to obey and which to ignore. This would turn on its head the ordinary assumption that legislation on economic and social matters need only have a rational basis; instead, any declaration of sincerely held religious belief, however "[in]comprehensible" (ibid), would require the state to justify any conflicting law under the compelling interest standard or forego its uniform enforcement. Page 1 169 The threshold requirement of a "substantial burden" helped, before Employment Div., Ore. Dept. of Human Res. V. Smith, supra, 494 U.S. 872, to avoid this potential for unlimited conflict between the multitude of laws and the multitude of religious beliefs. Congress pointedly retained the threshold requirement in RFRA. While recognizing that "laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise" (42 U.S.C. § 2000bb(a) (2)), Congress undertook to afford protection only against those laws that " substantially burden religious exercise" (id, § 2000bb(a) (3), italics added; see also, id, §§ 2000bb(b) (1), (b) (2), 2000bb-1(a), (b).) In enacting RFRA, Congress did not attempt to define a "substantial burden." Instead, the legislative history of the act shows Congress "expect[ed] that the courts [would] look to free exercise cases decided prior to Smith for guidance in determining whether the exercise of religion has been substantially burdened." (Sen.Rep. No. 103-111, 1st Sess., p. 8, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at p. 1898; see T hiry v. Carlson, supra, 887 F.Supp. at p. 1412 [quoting Sen. Judiciary Com. Rep.].) This general reference to the law before Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872, does not make our task easy. While the cases decided before Smith do provide guidance on the question of what constitutes a substantial burden, they do not offer a generally applicable definition of substantial burden or a generally applicable test for determining when a substantial burden exists. Instead, the pre—Smith cases disclose a case-by—case approach to the problem of deciding whether the government should be obliged to justify a challenged law under the compelling interest test. Under these circumstances our task is not to invent a definition, or distill a test, that has never received the endorsement of Congress. Instead, to remain faithful to the language and intent of RFRA, we must compare the facts of the case before us with the facts of the cases decided before Smith and attempt to reach a consistent result. The obvious starting points in this inquiry are the cases to which Congress specifically referred in the text of RFRA, namely Sherbert v. Verner, supra, 374 U.S.jflfi, and Wisconsin v. Y oder, supra, 405 US. 205. While examining these cases we must, however, bear in mind the admonition that Congress did not intend to "express approval or disapproval of the result reached in any particular court decision involving the free exercise of religion, including those cited in the act itsel ." (Sen.Rep. No. 103—111, lst Sess., p. 9, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at p. 1898, italics added.) The decision in Sherbert v. Verner, supra, 31LUS. 398, is the first of a line of cases holding that a state may not refuse to pay unemployment Page 1170 compensation to a claimant who quit a job for religious reasons. (See also Frazee v. Illinois Employment Security Dept. (1989) 489 U.S. 829 [103 L.Ed.2d 914, 109 S.Ct. 1514]; Hobbie v. Unemployment Appeals Comm ’n of Fla. (1987) 4M§L13§ [94 L.Ed.2d 190, 107 S.Ct. 1046]; Thomas v. Review Board, supra, 450 U.S. 707.) In Sherbert, Frazee, and Hobbie, the claimant refused to work on a religiously defined Sabbath. In Thomas, the claimant refused to help manufacture armaments. The httn://www.iurisearch.com/newroot/case.asn?DocId=1 339&Index=D%3a%SCdtSearch%5c... 1 1/7/2007 12 Cal.4th 1143, SO40653, Smith V. Fair Employment & Housing Com. Page 15 of 78 Supreme Court has articulated the rule of these cases as follows: " 'Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.‘ " (Hobbie v. Unemployment Appeals Comm 'n of F la. , supra, 480 US. at p. 141 [94 L.Ed.2d at pp. 197—198], quoting Thomas v. Review Board, supra, 450 US at p. 717 [67 L.Ed.2d at p. 634], italics omitted.) Turning to the case before us, one observes the obvious conflict between FEI—IA and the landlord's religious beliefs. This case, however, differs from the unemployment compensation cases in two significant respects. First, the degree of compulsion involved is markedly greater in the unemployment compensation cases than in the case before us. In the former instance, one can avoid the conflict between the law and one's beliefs about the Sabbath only by quitting work and foregoing compensation. To do so, however, is not a realistic solution for someone who lives on the wages earned through personal labor. In contrast, one who earns a living through the return on capital invested in rental properties can, if she does not wish to comply with an antidiscrimination law that conflicts with her religious beliefs, avoid the conflict, without threatening her livelihood, by selling her units and redeploying the capital in other investments. Second, the landlord’s request for an accommodation in the case before us has a serious impact on the rights and interests of third parties. This factor was not present in the unemployment—compensation cases. Because Smith is involved in a commercial enterprise, the state cannot exempt her from the antidiscrimination provisions of FEHA without affecting the members of the public she encounters in the course of her business. More specifically, to permit Smith to discriminate would sacrifice the rights of her prospective tenants to have equal access to public accommodations and their legal and dignity interests in freedom from discrimination based on personal characteristics. (Cf. Atlanta Motel v. United States (1964) 379 US. 241, 250 [13 L.Ed.2d 258, 264, 85 S.Ct. 348] ["the fundamental object of [federal civil rights legislation] was to vindicate 'the deprivation of personal dignity that Page 1171 surely accompanies denials of equal access to public establishments.’ "].) No comparable impairment of the rights of third parties is entailed in requiring the state to pay unemployment compensation to a worker who quits a job that conflicts with his or her religious beliefs. Even if one were to postulate that the rulings in Sherbert v. Verner, supra, 374_Q_S_,_3,9§, and its progeny marginally increased the costs to employers of unemployment insurance, the resulting impact on third parties is still far more attenuated than the impact on the prospective tenants in the case before us. The other case to which Congress specifically referred in RFRA, namely Wisconsin v. Yoder, supra, 406 US. 205, is also distinguishable. In Yoder, a law requiring all children to attend public high school burdened the religious exercise of Amish parents; the parent's beliefs required them to educate their children at home after the eighth grade, a formative period of life, in order to protect their children from worldly influences and teach them the values and skills necessary for integration into the Amish religious community. To find the burden substantial was reasonable since the law was wholly incompatible with the Amish beliefs: adolescence comes only once; if spent in the public schools, the harm to the Amish way of life is permanent. In contrast, the landlord in this case does not claim that her religious beliefs require her to rent apartments; the religious injunction is simply that she not rent to unmarried couples. No religious exercise is burdened if she follows the alternative course of placing her capital in another investment. The proposition that a burden on religion is not substantial if one can avoid it without violating httn://www.iurisearch.com/newroot/case.asp?DOCId=l 339&Index=D%3 a%50dtSearch%5c... 1 1/7/2007 12 Cal.4th 1143, 8040653, Smith v. Fair Employment & Housing Com. Page 16 of 78 one's religious beliefs is not of itself, we emphasize, a generally applicable test for identifying substantial burdens. As a factor to consider, however, the proposition finds support in cases decided before Employment Div., Ore. Dept. of Human Res. v. Smith, supra, figfifi; Such was the reasoning, for example, in Tony & Susan Alamo Foundation v. Sec'y of Labor, supra, 471 U.S. 290. In that case, the employees of a religious foundation, who worked for room and board, objected on religious grounds to receiving the monetary wages required by the Fair Labor Standards Act (29 U.S.C. § 201 et seq.). The court rejected the claim with this reasoning: "It is virtually self-evident that the Free Exercise Clause does not require an exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant's freedom to exercise religious rights... Even if the Foundation were to pay wages in cash, or if the associates' beliefs precluded them from accepting the statutory amount, there is nothing in the Act to prevent the associates from returning the amounts to the Foundation, provided that they do so voluntarily. We therefore fail to perceive how application of the Act would interfere with the associates' right to freely exercise their religious beliefs." (471 U.S. at pp. 303-304 [85 L.Ed.2d at p. 290], fns. omitted.) Page 1 172 The decision in Braunfeld v. Brown, supra, 36611,; 522, is to the same effect. In that case, Orthodox Jewish shopkeepers, who observed Saturday as the Sabbath, challenged a law requiring shops to close on Sunday. The shopkeepers, who thus could open for business only five days a week, argued the law placed them at a serious economic disadvantage as compared to other merchants whose religious beliefs permitted them to conduct business six days a week. In this way, they argued, the law coerced them to violate their beliefs. (Id. at pp. 601—602 [6 L.Ed.2d at pp. 565-566].) The United States Supreme Court rejected the shopkeepers' claim. (Braunfeld v. Brown, supra, 366 U.S. 592.) The court reasoned that the law "d[id] not make unlawful any religious practices of [the shopkeepers]; the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive." (Id at p. 605 [6 L.Ed.2d at p. 567].) The shopkeepers, the court observed, " [were] not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives open to [the shopkeepers] and others similarly situated—retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call for either Saturday or Sunday labor—~may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful." (Id. at pp. 605—606 [6 L.Ed.2d at p. 568].) "[I]t cannot be expected, much less required that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions." (Id. at p. 606 [6 L.Ed.2d at p. 568].) As the high court recognized, for the shopkeepers in Braunfeld v. Brown, supra, 3.6_6_I__I,§,~5_9_2, to have avoided the conflict between their religious beliefs and the Sunday-closing law by "engaging in some other commercial activity" (id. at p. 606 [6 L.Ed.2d at p. 568]) might well have entailed an economic cost. Likewise, we may assume that for the landlord in this case to avoid the conflict between FEHA and her religious beliefs by shifting her capital from rental units to another investment would also entail a cost. An economic cost, however, does not equate to a substantial burden for purposes of the fiee exercise clause. To the contrary, "[i]t is well established that there is no substantial burden placed on an individual's fiee exercise of religion where a law or policy [regulating secular conduct] merely 'operates so as to make the practice of [the individual's] religious beliefs more expensive.’ " (Goodall by Goodall v. Stafi'ord County School Bd, supra, 60 F.3d at p. 171, quoting Braunfeld v. Brown, supra, 366 U.S. at p. 605 [6 L.Ed.2d at p. 567], first bracketed phrase added.) htto://www.iurisearch.com/newroot/case.asp?DocId=l339&Index=D%3 a%50dtSearch%5c... 1 1/7/2007 12 Cal.4th 1143, 8040653, Smith v. Fair Employment & Housing Com. Page 17 of 78 Page 1 173 The proposition that an incidental burden on religious exercise is not substantial if it can be described as simply making religious exercise more expensive finds support in several cases in addition to those already cited. This factor, like the ability of a person to avoid a conflict between law and beliefs without violating those beliefs (e.g., Tony & Susan Alamo Foundation v. Sec’y of Labor, supra, 471 US, 290; Braunfeld v. Brown, supra, 366U.S. 599), may not constitute a generally applicable test for identifying substantial burdens. Nevertheless, the factor is one that courts under the relevant case law may properly consider. In Swaggart Ministries v. Cal. Bd of Equalization, supra, 493 US. 378, for example, the high court held a state could impose its sales and use taxes on an evangelists sale of Bibles and other religious materials. The evangelist argued the taxes burdened the exercise of his religion by reducing his income and, thus, "decreas[ing] the amount of money [he had] to spend on [his] religious activities ...." (Id. at p. 391 [107 L.Ed.2d at p. 810].) The court declared the economic burden "not constitutionally significant." (Ibid) Although the court " [did] not doubt the economic cost to appellant of complying with a generally applicable sales and use tax, such a tax is no different," the court explained, "from other generally applicable laws and regulations—such as health and safety regulations—to which appellant must adhere." (Ibid. ; see also Hernandez v. Commissioner, supra, 490 US at pp. 698—699 [104 L.Ed.2d at pp. 785—786] [expressing doubt whether the Internal Revenue Service had imposed a substantial burden on taxpayers by disallowing deductions for payments made in exchange for religious services].) The case of Goodall by Goodall V. Staflord County School Bd., supra, 60 F.3d 168, arose under RFRA. The parents of a child with a hearing impairment, who sent the child to a sectarian school pursuant to their religious beliefs, sued to compel the state to pay for the same transliteration services as provided to pupils in public school. The lower federal courts ruled such a payment would violate the establishment clause. When the high court held to the contrary (Zobresz‘ v. Catalina Foothills School Dist. (1993) _5_09 U.S._1 [125 L.Ed.2d l, 113 S.Ct. 2462]; see Goodall by Goodall v. Stafford County School Bd. , supra, 60 F.3d at p. 170), the parents claimed the state's refusal to provide transliteration services for their child burdened their religious exercise by imposing on them the $14,000 annual cost of a private transliterator. The Fourth Circuit Court of Appeals rejected the parents' claim on the ground that the economic . burden on their religious exercise occasioned by the state's refusal to provide a transliterator was not constitutionally Page 1 174 significantThe court reasoned: "It is well established that there is no substantial burden placed on an individual's free exercise of religion where a law or policy [regulating secular conduct] merely 'operates so as to make the practice of [the individuals] religious beliefs more expensive.‘ " (Goodall by Goodall v. Staflord County School Bd., supra, 60 F.3d at p. 171.) Thus, the state was not required to justify imposition of the economic burden, nor was the court required to balance the burden against the state's interest in refusing to pay. (Ibid) The court in McCarthy v. Hornbeck (D.Md. 1984) 5 90 F.Supp. 936 reached the same result under the free exercise clause in a case decided before Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 US 81;. Parents who sent their children to a Catholic school sued to compel the state to provide them with the same transportation services as offered to public school pupils. (McCarthy v. httn://www.iurisearch.com/newroot/case.asp?DocIcl=1339&Index=D%3a%50dtSearch%5c... 1 1/7/2007 12 Cal.4th 1143, 8040653, Smith v. Fair Employment & Housing Com. Page 18 of 78 Hornbeck, supra, 590 F.Supp. at p. 945.) Because the state had "not prohibited plaintiffs from practicing Catholicism" or made "any effort to prevent [them] from sending their children to parochial schools," the state's policy burdened plaintiffs' exercise of their religion, the court observed, only by making it more expensive. Thus, " [t]he question presented [was] whether this increased economic burden constitute[d] an infringement of plaintiffs' free exercise rights." (Id. at p. 944.) The court rejected the claim. One last factor that is relevant here, to which we have already alluded, also properly informs the inquiry into whether an asserted burden on religion is substantial. This is whether the granting of an accommodation would detrimentally affect the rights of third parties. The parties have not brought to our attention a single case in which the Supreme Court exempted a religious objector from the operation of a general law when the court also recognized that the exemption would detrimentally affect the rights of third parties. Indeed, the notion that an accommodation might affect the rights of third parties led the Supreme Court in Wisconsin v. Yoder, supra, 406 US. 205, expressly to limit its holding to avoid such an implication. As limited, the decision cannot be read as authority for granting religiously based exemptions when to do so would sacrifice the rights of third parties. In Wisconsin v. Yoder, supra, 406115. 205, Justice Douglas argued in dissent that the Amish parents' rights did conflict with those of their children. (Id. at p. 241 et seq. [32 L.Ed.2d at p. 40 et seq.] (dis. opn. of Douglas, J.).) In response, the majority painstakingly demonstrated that permitting Amish parents to educate their older children at home had not been shown to burden the children's rights. "This case," the court observed, "of course, is not one in which any harm to the physical or mental health of Page 1175 the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. The record is to the contrary, and any reliance on that theory would find no support in the evidence. [fl] The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation... [1]] Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary... [1]] The State's argument proceeds without reliance on any actual conflict between the wishes of parents and children." (Id. at pp. 23 0—232 [32 L.Ed.2d at pp. 33-34], fns. omitted.) The case before us is strikingly different than Wisconsin v. Yoder, supra, 406,114SJQQ, because here the conflict between the landlord's request for an accommodation and the rights of third parties is manifest. The exemption from FEHA Smith seeks can be granted only by completely sacrificing the rights of the prospective tenants not to be discriminated against by her in housing accommodations on account of marital status. To say that the prospective tenants may rent elsewhere is to deny them the full choice of available housing accommodations enjoyed by others in the rental market. To say they may rent elsewhere is also to deny them the right to be treated equally by conunercial enterprises; this dignity interest is impaired by even one landlord's refusal to rent, whether or not the prospective tenants eventually find housing elsewhere. In short, were we to grant the requested accommodation, Smith would have more freedom and greater protection for her own rights and interests, while Phillips and Randall would have less freedom and less protection. In summary, these are the facts on which we must decide whether Smith should be exempt from the antidiscrimination provisions of FEHA: Smith's religion does not require her to rent apartments, nor is httn://www.iurisearch.com/newroot/case.asp?DocId=1339&Index=D%3a%50dtSearch%50... 1 1/7/2007 12 Ca1.4th 1143, 8040653, Smith V. Fair Employment & Housing Com. Page 19 of 78 investment in rental units the only available income-producing use of her capital. Thus, she can avoid the burden on her religious exercise without violating her beliefs or threatening her livelihood. (Cf. Tony & Susan Alamo Foundation v. Sec’y of Labor, supra, 471 U.S. at pp. 303-304 [85 L.Ed.2d at pp. 289— 290]; Braunfeld v. Brown, supra, 366 U.S. at pp. 605-606 [6 L.Ed.2d at pp. 567-568].) The asserted burden is the result not of a law directed against religious exercise, but of a religion-neutral law that happens to operate in a way that makes Smith's religious exercise more expensive. (Cf. Swaggart Ministries Page 1 176 V. Cal. Bd. of Equalization, supra, 493 U.S. at p. 391 [107 L.Ed.2d at p. 810]; Hernandez v. Commissioner, supra, 490 U.S. at pp. 698-699 [104 L.Ed.2d at pp. 785-786]; Goodall by Goodall V. Staflord County School Bd, supra, 60 F.3d at p. 171; McCarthy v. Hornbeck, supra, 590 F.Supp. at p. 944.) Finally, to grant the requested accommodation would not affect Smith alone, but would necessarily impair the rights and interests of third parties. (Cf. Wisconsin v. Yoder, supra, 406 U.S. at p. 213 [32 L.Ed.2d at pp. 23—241.) This set of facts does not, under the relevant case law, support Smith's argument that requiring her to comply with FEHA'S antidiscrimination provisions substantially burdens her religious exercise. Accordingly, we have no occasion to determine whether application of the statute to her furthers a compelling state interest or is the least restrictive means to further such an interest. (42 U.S.C. § 2000bb— 1(a) & (b).) [Z—L] In concluding Government Code section 12955 does substantially burden Smith's religious exercise, the Court of Appeal erred. Page 1177 3. The California Constitution. The last question we must address is whether the California Constitution exempts Smith from the requirements of FEHA. The pertinent constitutional provision that particularly concerns us is article 1, section 4. As relevant here, the section provides: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State." (Cal. Const, art. I, § 4.) The parties disagree on how we should apply California Constitution article 1, section 4, to the case before us. Smith argues the provision, like RFRA, requires us to exempt her fiom PEI-IA unless the burden the statute imposes on her religious exercise is justified by a compelling state interest. Smith argues FEHA does not meet the test. Various amici curiae agree with Smith that article I, section 4, embodies a compelling interest test, but argue the test is satisfied by the state's interest in eradicating housing discrimination. Other amici curiae contend article I, section 4, is more analogous to the federal Constitution's free exercise clause as interpreted in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 42,435. 872, and thus has nothing to say about neutral, generally applicable laws that incidentally burden religious exercise. We may take it for granted that the meaning of California Constitution article 1, section 4, of the California Constitution is not dependent on the meaning of any provision of the federal Constitution. The state charter declares in so many words that " [r] ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." (Cal. Const, art. I, § 24.) "Respect for our Constitution as 'a document of independent force’ [citation] forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal http://www.jurisearch.com/newroot/case.asp?Docld=1339&lndex=D%3 a%5cdtSearch%SC... 1 1/7/2007 12 Cal.4th 1143, $040653, Smith v. Fair Employment & Housing Com. Page 20 of 78 charter." (People v. Pettingill (1978) 21 Cal.3d 231, 248 [145 Cal.Rptr. 861], quoting People v. Brisendine (1975) ligalfid 528, 549—550 [119 Cal.Rptr. 315].) Nevertheless, a search for the independent meaning of California Constitution, article I, section 4, entails a certain amount of frustration because California courts have typically construed the provision to afford the same protection for religious exercise as the federal Constitution before Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 US. 812. Indeed, our more recent cases treat the state and federal free exercise clauses as interchangeable and apply, to both, the compelling state interest test articulated in Sherbert v. Verner, supra, 314US. 398, and Wisconsin v. Yoder, Page 1178 supra, 496,118. 205. (See Walker v. Superior Court (1988) 47 Cal.3d 112, 138—141 [253 Ca1.Rptr. 1] [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 Ca1.Rptr. 122] [rej ecting, under Yoder, the defense of religious motivation to a cause of action for fraud]; In re Arias (1986) @Qal.3d 662, 692 [230 Cal.Rptr. 505] [applying Sherbert to prohibit electronic monitoring devices in the chapel of a Youth Authority facility]; People v. Woody (1964) 61 Ca1.2d 716__, 718, fil. l [40 Ca1.Rptr. 69] [reversing, under Sherbert, a conviction for using peyote as a sacrament of the Native American Church].) Under the approach of these cases, the analysis that disposes of Smith's claim under RFRA also disposes of her claim under article I, section 4, of the state Constitution. ‘ Older cases, however, suggest an approach closer to that of the United States Supreme Court in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 US. 872, which found no constitutional objection to the application to a religious objector of a neutral, generally applicable law. In Ex parte Andrews (1861) 18 Cal. 678, one of this court's first interpretations of California Constitution, article 1, section 4, we rejected a challenge under the section to a Sunday—closing law. Chief Justice Field set out the court's understanding of the state Constitution‘s fiee exercise guarantee in terms much like those the United States Supreme Court would later use in Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 US. at pages 876—880 [108 L.Ed.2d at page 885]: "[Article I, section 4,] contains a guarantee for the free exercise and enjoyment of religious profession and worship, without discrimination or preference. [We understand this to be an interdict against all legislation, which invidiously discriminates in favor of or against any religious system. It does not interdict all legislation upon subjects connected with religion The operation of the [Sunday Closing law] is secular, just as much as the business on which the act bears is secular; it enjoins nothing that is not secular, and it commands nothing that is religious The mere fact that this regulation takes effect upon a day which has been appropriated as a day of rest by the sanctions of a particular church, no more destroys the power of the Legislature to command abstinence from labor on that day, than the fact that if the Legislature appointed certain public business to be done on Saturday or Sunday—this would have been 'discriminating' against the sects, according religious sanctity to those days." (Ex parte Andrews, supra, 18 Cal. at pp. 684—685; cf. Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 US. at pp. 878—879 [108 L.Ed.2d at pp. 885] ["We have never held that an individual's religious Page 1179 beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate"].) http://www.jurisearch.com/newroot/case.asp?DocId=1339&Index=D%3 a%5cdtSearch%5c... 1 1/7/2007 12 Cal.4th 1143, $040653, Smith v. Fair Employment & Housing Corn. Page 21 of 78 Our older cases, following this approach, did not require accommodations of religiously motivated conduct. (Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 90~92 [82 P.2d 391] [declining to reinstate a public school pupil who was expelled for refusing, on religious grounds, to salute the flag; but see Board of Education v. Barnette (1943) 319 U.S. 62:4 (87 L.Ed. 1628, 63 S.Ct. 1178, 147 A.L.R. 674)]; Gospel Army v. City of Los Angeles (1945) 219a12d 2:12, 242—250 [163 P.2d 704] [upholding, as applied to a religious organization, municipal ordinances regulating charitable contributions and solicitations]; Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 470 [171 P.2d 8] [same; "There can be no question, therefore, that a person is free to hold whatever belief his conscience dictates, but when he translates his belief into action he may be required to conform to reasonable regulations which are applicable to all persons and are designed to accomplish a permissible obj ective."].) Under the approach of these cases, Smith’s claim to an exemption would necessarily fail. That the state Constitution's free exercise clause is more protective of religious exercise than the federal Constitution's free exercise clause has also been suggested. [a] No court, however, has articulated a test more protective than the test set out in Sherbert v. Verner, supra, 374 U.S. 398, and Wisconsin v. Yoder, supra, 406 U.S. 205, and now codified in RFRA. Because Smith's claim fails even under that test, as explained above, we need not address the scope and proper interpretation of California Constitution, article I, section 4. These important questions should await a case in which their resolution affects the outcome. III. Disposition The judgment of the Court of Appeal is affirmed to the extent it vacates the award of damages for emotional distress. (See ante, fn. 5.) In all other respects, the judgment is reversed. George, J., and Arabian, J., m concurred. MOSK, J .,—— Concurring— I generally concur in the opinion prepared by Justice Werdegar. I largely join in its analysis. I fully join in its disposition: except as to the vacation of the Page 1 180 award of damages for emotional distress, the judgment of the Court of Appeal must be reversed. I write separately to consider the Religious Freedom Restoration Act of 1993 (hereafter sometimes RFRA), which is codified as section 2000bb et seq. of title 42 of the United States Code, and its applicability to this cause. I would not reach the question whether petitioner's defense under the statute is meritorious on its own terms. Rather, for the reasons stated below, I would simply hold that the statute itself is without effect as violative of the United States Constitution. I In pertinent part, the First Amendment declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." By their terms, these so—called "religion clauses"—-individually the establishment and free exercise clauses—bind Congress and, by extension, the federal government generally—and bind them alone (see Barron v. Baltimore (1833) 32' U.S. (7 Pet.) 243, 247—250 [8 L.Ed. 672, 674—675]). They are made applicable against state legislatures and, by extension, state governments generally through incorporation in the due process clause of the http://www.jurisearch.com/newroot/case.asp?DocId=1339&Index=D%3a%5cdtSearch%5c... 1 1/7/2007 ...
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Smith[1] - 12 Ca1.4th 1143 3040653 Smith V Fair Employment& Housing Com Page 1 of 78 12 Cal.4th 1143 5040653 Smith v Fair Employment 8 Housing

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