Attorney General v. Desilets

636 N.E.2d 233, 418 Mass. 316, 1994 Mass. LEXIS 396

Opinions

Wilkins, J.

This case involves the tension between a statutory mandate that a landlord not discriminate against unmarried couples in renting accommodations and a landlord’s sincerely held religious belief that he should not facilitate what he regards as sinful cohabitation.

The defendants, who are brothers, own a four-unit apartment house in the Turners Falls section of the town of Montague. Paul and his wife jointly own two other apartment buildings in Turners Falls which have a total of twenty-one residential units. In August, 1989, Paul, acting for himself and his brother, declined to consider leasing an apartment in the four-unit building to Mark Lattanzi and Cynthia Tarail, an unmarried couple, because they would be cohabiting there.²

The defendants have a policy of not leasing an apartment to any person who intends to engage in conduct that violates their religious principles. The defendants’ sole reason for declining even to consider Lattanzi and Tarail as tenants was that religion-based policy. The defendants, who are Roman Catholics, believe that they should not facilitate sinful conduct, including fornication. Since developing the policy at least a decade earlier, the defendants have applied it ten or more times to deny tenancies to unmarried couples.

General Laws c. 151B, § 4 (6), as in effect in August, 1989, provided, in part, that it shall be an unlawful practice for the owner of a multiple dwelling “to refuse to rent or lease ... or otherwise to deny to or withhold from any person or group of persons such accommodations because of the race, religious creed, color, national origin, sex, age, ancestry or marital status of such person or persons” (emphasis supplied). G. L. c. 151B, § 4 (6) (1988 ed.).³ We shall conclude that the defendants violated the provisions of this statute and that, therefore, we must consider the defendants’ argument that enforcement of the statute against them violates their rights under the State and Federal Constitutions.

In September, 1989, Lattanzi and Tarail filed a housing discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD), claiming that because of their marital status they were denied available housing in violation of G. L. c. 15IB, § 4 (6). After the MCAD had found probable cause, Lattanzi and Tarail filed a notice seeking a judicial determination of the matter in the Superior Court, pursuant to G. L. c. 15IB, § 5 (1992 ed.). On October 4, 1990, the Attorney General, as was his obligation under G. L. c. 15IB, § 5, commenced this action on behalf of the complainants in Superior Court in Franklin County.

A judge of the Superior Court decided the case on cross motions for summary judgment. He allowed the defendants’ motion for summary judgment and denied the Attorney General’s. The motion judge correctly ruled that the defendants had violated G. L. c. 15IB. He then ruled that, on the summary judgment record, application of the statute to the defendants in this case would be unconstitutional. We granted the Attorney General’s application for direct appellate review. We conclude that, on the record before us, neither party was entitled to summary judgment and that the summary judgment for the defendants should be vacated.

1. The defendants argue that they are not discriminating on the basis of marital status but rather on the basis of conduct and that consequently they are not discriminating in a way forbidden by G. L. c. 15IB, § 4 (6). There is no merit to this argument. This court’s opinion in Worcester Hous. Auth. v. Massachusetts Comm’n Against Discrimination, 406 Mass. 244 (1989), makes clear that the prohibition in G. L. c. 15IB, § 4 (6), against discrimination in leasing because of marital status applies to discrimination against an unmarried woman and an unmarried man seeking to rent an apartment for their joint occupancy. Moreover, analysis of the defendants’ concerns shows that it is marital status and not sexual intercourse that lies at the heart of the defendants’ objection. If married couple A wanted to cohabit in an apartment owned by the defendants, they would have no objection. If unmarried couple B wanted to cohabit in an apartment owned by the defendants, they would have great objection. The controlling and discriminating difference between the two situations is the difference in the marital status of the two couples.

2. We consider first the protections provided by art. 46, § 1, of the Amendments to the State Constitution. Article 46, § 1 (“No law shall be passed prohibiting the free exerelse of religion”) parallels the First Amendment to the Constitution of the United States (“Congress shall make no law . . . prohibiting the free exercise of religion”). See Commonwealth v. Nissenbaum, 404 Mass. 575, 578 (1989).

Despite the similarity of the two constitutional provisions, this court should reach its own conclusions on the scope of the protections of art. 46, § 1, and should not necessarily follow the reasoning adopted by the Supreme Court of the United States under the First Amendment. Indeed, after the release of our Nissenbaum opinion, the Supreme Court substantially altered its standard for determining whether conduct was protected under the free exercise of religion clause by its decision in Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872 (1990), a much criticized opinion that weakened First Amendment protections for religious conduct. See The Supreme Court, 1992 Term — Comment, The Resurrection of Religious Freedom?, 107 Harv. L. Rev. 118 & 118 n.3 (1993).⁴

In interpreting art. 46, § 1, we prefer to adhere to the standards of earlier First Amendment jurisprudence, such as we applied in Alberts v. Devine, 395 Mass. 59, 74-75, cert, denied sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985), and Attorney Gen. v. Bailey, 386 Mass. 367, 375, cert, denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). In each opinion, we used the balancing test that the Supreme Court had established under the free exercise of religion clause in Wisconsin v. Yoder, 406 U.S. 205, 215-229 (1972), Sherbert v. Verner, 374 U.S. 388, 406-409 (1963), and subsequent opinions. See Alberts v. Devine, supra at 73-74; Attorney Gen. v. Bailey, supra at 375. See also Employment Div., Dep’t of Human Resources of Or. v. Smith, supra at 894-895 (O’Connor, J., concurring in the judgment). By applying the balancing test as we do, we extend protections to the defendants that are at least as great as those of the First Amendment. No further discussion of rights under the First Amendment is, therefore, necessary.⁵

Our tasks are to determine whether the defendants have shown that the prohibition against housing discrimination based on marital status substantially burdens their free exercise of religion, and, if it does, whether the Commonwealth has shown that it has an interest sufficiently compelling to justify that -burden. See Alberts v. Devine, supra at 73-74, citing Wisconsin v. Yoder, supra at 215-229, and Sherbert v. Verner, supra at 403-409. See also L.H. Tribe, American Constitutional Law § 14-12, at 1242 (2d ed. 1988) (“In order to gain the exemption, the claimant must show (1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the state requirement. Once the claimant has made that showing, the burden shifts to the state. The state can prevail only by demonstrating both that (3) the requirement pursues an unusually important governmental goal, and that (4) an exemption would substantially hinder the fulfillment of the goal” [footnotes omitted]).

Because it is unchallenged on the summary judgment record, we must accept that the defendants sincerely believe that their behavior must in all respects conform to their religious beliefs and that, in their view, the operation of rental housing is not independent of those beliefs. Conduct motivated by sincerely held religious convictions will be recognized as the exercise of religion. Supreme Court free exercise of religion cases have accepted, either implicitly or without searching inquiry, claimants’ assertions regarding what they sincerely believe to be the exercise of their religion, even when the conduct in dispute is not commonly viewed as a religious ritual. See, e.g., Hobbie v. Unemployment AppealComm’n of Fla., 480 U.S. 136, 137 (1987) (refusal to work Sabbath hours); United States v. Lee, 455 U.S. 252, 257 (1982) (abstention from participating in government social security program); Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 715 (1981) (refusal to work in weapons production). See also Tribe, supra at § 14-12, at 1243-1244. Our opinions concerning the free exercise of religion have also recognized action based on religious beliefs as the exercise of religion. See, e.g., Fedele v. School Comm. of Westwood, 412 Mass. 110, 116 (1992) (right to maintain religion includes “freedom to believe” and “freedom to act on that belief’); Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 851, cert, denied, 502 U.S. 865 (1991) (“Both this court and the United States Supreme Court have recognized that the concept of free exercise of religion involves both belief and activity”; teaching of religious beliefs is protected activity); Attorney Gen. v. Bailey, supra at 375-376 (threshold question satisfied because operation of school was activity “motivated by a sincerely held religious belief’).

The next question is whether the prohibition against discrimination based on marital status substantially burdens the defendants’ exercise of their religion. The extent of any burden will become important if and when it comes time to balance any such burden against the interests of the Commonwealth in eliminating marital status discrimination in housing. We first consider whether there is any burden at all on the defendants’ free exercise of religion. We have said that the government’s failure to provide a child with subsidized transportation to a private sectarian school does not burden the child’s free exercise of religion. Fedele v. School Comm. of Westwood, supra at 116.⁶ Here, the situation differs because the government has placed a burden on the defendants that makes their exercise of religion more difficult and more costly. The statute affirmatively obliges the defendants to enter into a contract contrary to their religious beliefs and provides significant sanctions for its violation.^{6 7} Moreover, both their nonconformity to the law and any related publicity may stigmatize the defendants in the eyes of many and thus burden the exercise of the defendants’ religion. Four State appellate courts, on similar but not identical facts, have dealt recently with the question of a substantial burden on the free exercise of religion under their respective State Constitutions, and all four concluded that a marital status antidiscrimination law imposed such a burden. See Swanner v. Anchorage Equal Rights Comm’n, 868 P.2d 301, 308, reh’g granted, withdrawn from bound volume, modified, and reissued per curiam, 874 P.2d 274 (Alaska 1994); Smith v. Commission of Fair Employment & Hous., 25 Cal. App. 4th 251, modified, 39 Cal. App. 4th 877 (1994); Donahue v. Fair Employment & Hous. Comm’n, 2 Cal. Rptr. 2d 32, 42 (Ct. App. 1991), review granted, 5 Cal. Rptr. 2d 781 (1992), review dismissed granted, 23 Cal. Rptr. 2d 591 (1993); State by Cooper v. French, 460 N.W.2d 2, 10 (Minn. 1990); id. at 15 (Popovich, C.J., dissenting).

The fact that the defendants’ free exercise of religion claim arises in a commercial context, although relevant when engaging in a balancing of interests, does not mean that their constitutional rights are not substantially burdened. This is not a case in which a claimant is seeking a financial advantage by asserting religious beliefs. See cases cited in note 6 above. The defendants’ right to free exercise of religion is substantially burdened by the operation of G. L. c. 15IB, § 4 (6).

We must, therefore, consider whether the record establishes that the Commonwealth has or does not have an important governmental interest that is sufficiently compelling that the granting of an exemption to people in the position of the defendants would unduly hinder that goal. The general objective of eliminating discrimination of all kinds referred to in the relevant version of § 4 (6) (“race, religious creed, color, national origin, sex, age, ancestry or marital status”) cannot alone provide a compelling State interest that justifies the application of that section in disregard of the defendants’ right to free exercise of their religion. The analysis must be more focused. At the least, the Commonwealth must demonstrate that it has a compelling interest in the elimination of discrimination in housing against an unmarried man and an unmarried woman who have a sexual relationship and wish to rent accommodations to which § 4 (6) applies.⁸

Earlier in this opinion we pointed out that four other appellate State courts had recognized, as we do in this opinion, that a marital status antidiscrimination law such as ours substantially burdens the free exercise of religion by a landlord who does not believe in leasing premises to unmarried cohabitants. Judicial unanimity disappeared, however, when the role of a compelling State interest in the balancing of interests was considered. None of these opinions, majority or dissenting, provides reasoning that is particularly instructive in deciding the issue that we are now discussing.⁹

As the motion judge correctly ascertained, marital status discrimination is not as intense a State concern as is discrimination based on certain other classifications. Article 1 of the Massachusetts Declaration of Rights, as amended by art. 106, of the Amendments to the Massachusetts Constitution, states that “[e] quality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” Because there is no constitutionally based prohibition against discriminating on the basis of marital status, marital status discrimination is of a lower order than those discriminations to which art. 1 refers. Moreover, in various ways, by statute¹⁰ and judicial decision,¹¹ the law has not promoted cohabitation and has granted a married spouse rights not granted to a man or woman cohabiting with a member of the opposite sex.

The defendants argue further that G. L. c. 272, § 18 (1992 ed.), presents a public policy consideration that weighs against the interest stated in G. L. c. 151B against discrimination based on marital status. Section 18 makes fornication a crime. This statute is of doubtful constitutionality, at least as applied to the private, consensual conduct of persons over the age of consent. See Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974). It remains, however, as a criminal statute of the Commonwealth, which suggests some diminution in the strength of the Commonwealth’s interest in the elimination of housing discrimination based on marital status.

Without supporting facts in the record or in legislative findings, we are unwilling to conclude that simple enactment of the prohibition against discrimination based on marital status establishes that the State has such a substantial interest in eliminating that form of housing discrimination that, on a balancing test, the substantial burden on the defendants’ free exercise of religion must be disregarded. It is no doubt true that many men and women are cohabiting in the Commonwealth and that numbers have increased in the last twenty years. We have no sense, however, of the numbers of rental units that might be withheld from such people because of the religious beliefs of the owners of rental housing. Although the prohibition against discrimination based on marital status was enacted over twenty years ago (St. 1973, c. 187), this is the first case of this character that has come to our attention.

We have no indication, beyond the facts of this case, whether the rental housing policies of people such as the defendants can 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. Market forces often tend to discourage owners from restricting the class of people to whom they would rent. On the other hand, discrimination of the sort challenged here may present a significant housing problem if a large percentage of units are unavailable to cohabitants.

We reject any argument that a general rule must be applied because of problems in determining whether religious beliefs sincerely underlie a landlord’s refusal to lease. The sincerity of such action assertedly founded on religious beliefs is open to challenge in a free exercise of religion case. See United States v. Ballard, 322 U.S. 78 (1944). We would, moreover, not readily subscribe to a rule that justified the denial of constitutional rights simply because the protection of those rights required special effort. For similar reasons, in the absence of proof, we would not find a compelling State interest in this case simply because other individuals might assert the right to be exempt from this or some other law on religious grounds and in doing so would make enforcement of that law difficult. Yet the practical problems of administering a law with the exemption that the defendants seek may be shown to be such as to make the operation of such an exemption impractical. Finally, the compulsion of the State’s interest appears somewhat weakened because the statute permits discrimination by a religious organization in certain respects (see note 8 above) if to do so promotes the principles for which the organization was established.

We are not persuaded on the record that the Commonwealth’s interests in the availability of rental housing for cohabiting couples must always prevail over the religion-based practices that people such as the defendants wish to pursue. On the other hand, we cannot say that it is certain that the Commonwealth could not prove in this case that it has some specific compelling interest that justifies overriding the defendants’ interests.

The Commonwealth has the task of establishing that it has a compelling interest in eliminating housing discrimination against cohabiting couples that is strong enough to justify the burden placed on the defendants’ exercise of their religion. A task of this sort has been carried out successfully in some cases and not in others. Compare Bob Jones Univ. v. United States, 461 U.S. 574, 592-593, 604 (1983) (eradication of racial discrimination in education is compelling State interest, superseding any free exercise rights of petitioners); United States v. Lee, 455 U.S. 252, 258-259 & nn.7-9 (1982) (overriding interest in operation of national social security system is compelling) with Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 719 (1981) (no compelling State interest established); Wisconsin v. Yoder, 406 U.S. 205, 224-229 (1972) (same); and Sherbert v. Verner, 374 U.S. 398, 407 (1963) (same). Cf. Guiney v. Police Comm’r of Boston, 411 Mass. 328, 332-334 (1991) (generalized sense that there is a drug problem does not alone justify random drug testing of police officers).

The summary judgment record does not establish that there is no disputed material fact bearing on the compelling State interest question. In that circumstance summary judgment is inappropriate. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). Doe v. New Bedford Hous. Auth., 417 Mass. 273, 279 (1994). Flesner v. Technical Communications Corp., 410 Mass. 805, 808-809 (1991). Cruz v. Commissioner of Pub. Welfare, 395 Mass. 107, 115-116 (1985). There are factual circumstances that bear on the question, both as to the existence of a general State 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. It should be remembered that the task is to balance the State’s interests against the nature of the burden on the defendants and that we are concerned here with the business of leasing apartments, not with participation in a formal religious activity.

Now that we have defined the nature of the relevant State constitutional rights and the applicable standards, we should not announce that the Commonwealth cannot possibly make its case, but rather we should give it a chance to demonstrate its compelling interest in the application of the statute. In short, on the summary judgment record, we conclude that the uncontested material facts disclose no basis for ruling that the Commonwealth can or cannot meet its burden of establishing that it has a compelling interest that can be fulfilled only by denying the defendants an exemption from G. L. c. 15IB, § 4 (6). Therefore, summary judgment should not have been granted to the defendants, and neither side is entitled to summary judgment.

3. We now turn to art. 2 of the Massachusetts Declaration of Rights.¹² That article, unaltered since the people adopted it in 1780, has no precise parallel in the Constitution of the United States, although certain of art. 2’s principles are reflected in the First Amendment to the United States Constitution. Article 2 is important to this case only if it grants greater protection to the defendants than do either the First Amendment or the cognate free exercise of religion provision appearing in art. 46, § 1, of the Amendments to the Constitution of the Commonwealth.

“The Constitution of the Commonwealth . . . guarantees to all our people absolute freedom as to religious belief and liberty unrestrained as to religious practices,” provided that the public peace is not disturbed and others are not obstructed in their religious worship. Opinion of the Justices, 214 Mass. 599, 601 (1913). Article 2 of the Declaration of Rights protects religious beliefs by providing that “no subject shall be hurt, molested, or restrained in his person, liberty, or estate ... for his religious profession or sentiments.” As a practical matter, this protection of religious beliefs is substantially absolute under art. 2 as well as under art. 46, § 1, of the Amendments and the First Amendment.¹³ This aspect of art. 2 is not involved in this case because we are not dealing with any restraint on the defendants’ religious professions or sentiments.

Article 2 also protects religious practices by providing that “no subject shall be hurt, molested, or restrained ... for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience.” This protection concerns conduct, the “manner and season” of worshiping God. That conduct may invoke one or both of the exceptions in art. 2: that the conduct must “not disturb the public peace or obstruct others in their religious worship.” Art. 2. If neither exception applies, by its terms, art. 2 gives absolute protection to the manner in which one worships God. No balancing of interests, the worshiper’s, on the one hand, and the government’s, on the other, is called for when neither exception applies.

Our cases concerning art. 2 have not defined the scope of the concept of worshiping God, that is, if neither art. 2 exception applies, that conduct which is constitutionally protected absolutely. They do, however, provide some guidance. See Society of Jesus of New England v. Boston Landmarks Comm’n, 409 Mass. 38, 42 (1990); Commonwealth v. Nissenbaum, 404 Mass. 575, 578-579 (1989).¹⁴

The court need not pass on the application of art. 2 in this case because whatever protections it offers to the defendants are available to them under art. 46, § 1, which we have already discussed.¹⁵ The three Justices who join this opinion reach this conclusion because, even if the defendants’ selective leasing of their commercial property involves “worship-ping GOD in the manner and season most agreeable to the dictates of [their] own conscience,” that conduct in violation of a State statute would disturb the peace (see Commonwealth v. Nissenbaum, supra at 582-583; id: at 592-593 [Liacos, J., dissenting]), and, therefore, there would have to be a balancing of competing interests to decide whether G. L. c. 15IB, § 4 (6), is properly enforceable against the defendants. This balancing process is similar to the task that the three Justices who join this opinion and the Chief Justice in partial concurrence agree must be conducted under art. 46, § 1, on remand on this case. No balancing of competing interests under art. 2 is required in this case because the competing interests standard under art. 2 is no more favorable to the defendants than the requirement under art. 46, § 1, that the Commonwealth demonstrate a compelling State interest in justification of the application of the statute to the defendants.

4. The judgment for the defendants is vacated, and the case is remanded to the Superior Court for further consideration of the question whether art. 46, § 1, bars application of G. L. c. 15IB, § 4, to the defendants in the circumstances of this case.

So ordered.

2 We shall refer to cohabitation and cohabiting as the act of a man and a woman, not married to one another, living together as husband and wife in a sexual relationship. We recognize that a married couple also cohabits. See Webster’s Third New Int’l Dictionary 440 (1993); Black’s Law Dictionary 260 (6th ed. 1990).

3 Statute 1989, c. 516, § 9, approved on November 15, 1989, inserted the category “sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object” after the category “sex” in the quoted language.

4 The Supreme Court has continued to adhere to the principle of the Smith case that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 113 S. Ct. 2217, 2226 (1993). Where, however, a law burdening religious practice is not neutral or is not of general application, that law must advance compelling interests and must be tailored narrowly in pursuit of those interests. Id. at 2233. Because this latter test states the standard that we apply under the State Constitution in all circumstances where a law burdens religion, we need not decide whether the law challenged in this case is neutral and of general applicability.

5 The standard that we apply appears to be the same as that prescribed by the Religious Freedom Restoration Act of 1993 (42 U.S.C. §§ 2000bb et seq.), signed into law on November 16, 1993, after the decision of the lower court in this case. The intent of the new law was to counteract the standard set in Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872 (1990). See § 2000bb (b) (“[t]he purposes of this Act are [1] to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 [1963] and Wisconsin v. Yoder, 406 U.S. 205 [1972] and to guarantee its application in all cases where free exercise of religion is substantially burdened; and [2] to provide a claim or defense to persons whose religious exercise is substantially burdened by government).”

Under § 2000bb-l (b) of the Act, “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Act applies to States and political subdivisions (§ 2000bb 2-[l]), and all State law “whether adopted before or after the enactment of this Act” (§ 2000bb-3 [a]). ■

The defendants have referred to the Act in their supplemental brief here, and, in pleadings filed after remand from this court, they could assert rights under the Act.

6 See Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 304 (1985) (no burden where no financial disadvantage need result to religious employer from operation of law). See also Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378, 391-392 (1990) (taxation on sales and use of religious media reduced claimant organization’s income but did not violate religious beliefs or otherwise burden exercise of religion); Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 694-700 (1989) (disallowance of tax exemption for cost of religious “auditing” sessions reduced claimants’ disposable income, but did not burden religious activity itself).

7 The MCAD may award damages and attorney’s fees and costs to a prevailing complainant. G. L. c. 15IB, § 5 (1992 ed.). The MCAD may also assess a civil penalty against one who has engaged in § 5 unlawful housing practices. Id. If a civil action is brought under G. L. c. 151B, § 9 (1992 ed.), the court may award actual and punitive damages, as well as attorney’s fees and costs, and may grant injunctive relief.

8 The Commonwealth concedes, and we therefore assume for the purposes of this case, that G. L. c. 151B, § 4, provides an exception from all its coverage for a religious institution and for an organization operated for charitable or educational purposes which is in turn operated by a religious organization. The relevant provision in 1989 read as follows:

“Nothing herein contained shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained.”

General Laws c. 151B, § 1 (11) (1992 ed.), defines multiple dwellings, to which § 4 (6) applies, as dwellings that are rented to three or more families living independently of each other.

The Commonwealth states the issue in this case as whether the exemptions and limitations of G. L. c. 15IB are constitutionally inadequate.

9 The Minnesota court held that the Legislature obviously did not intend the Minnesota Human Rights Act’s ban against marital status discrimination “to include unmarried, cohabiting couples in housing cases.” State by Cooper v. French, 460 N.W.2d 2, 7 (Minn. 1990) (four-to-three decision). The six Justices of the Minnesota court who discussed the compelling State interest question split evenly on the issue under their State Constitution. See id. at 11 (Simonett, J., concurring as to Part I); id. at 11, 21 (Popovich, C.J., dissenting).

In the earlier California case, a California Court of Appeals divided (two to one) on the question of the State’s compelling interest, holding that the burden of the statute on the prospective landlords’ sincere and legitimate free exercise of religion was substantial and that “the state’s statutory interest in protecting unmarried cohabiting couples from discrimination ranks relatively low in the hierarchy of the state’s governmental interests.” Donahue v. Fair Employment & Hous. Comm’n, 2 Cal. Rptr. 2d 32, 46 (Ct. App. 1991). The California Supreme Court then granted a petition for review (5 Cal. Rptr. 2d 781 [1992]), but later dismissed the review as improvidently granted (20 Cal. Rptr. 2d 591 [1993]), and rejected a request for an order directing publication of the opinion of the Court of Appeals. That opinion consequently does not and will not appear in the oEcial California Reports. Under Cal. R. Ct. 977 (a) (1994), unpublished opinions may not be cited or relied on by any court or party within the State of California. Of course, the final judgment is still binding on the parties, but it has been observed that rule 977 effectively prevents an unpublished decision from having any precedential value. See 9 B.E. Witkin, California Procedure § 583, at 574-575 (3d ed. 1985).

In the more recent California intermediate appellate court opinion, the court stated, applying the Federal constitutional principles: “Given our conclusion the policy of protecting unmarried couples against housing discrimination does not rise to the level of a compelling state interest, the application of the statute implementing that policy to plaintiff must give way to plaintiff’s exercise of her fundamental rights.” Smith v. Commission of Fair Employment & Hous., 25 Cal. App. 4th 251, modified, 39 Cal. App. 4th 877 (1994). On the State constitutional question, the court reached the same conclusion, stating that “California has no compelling interest in prohibiting housing discrimination against unmarried couples such as would outweigh plaintiff’s state constitutional free exercise claim.” Id. at 901.

The Alaska Supreme Court also divided on the proper conclusion to reach on the balancing test, holding that the free exercise clauses of the United States and Alaska Constitutions did not entitle the landlord to an exemption from State and local marital status antidiscrimination laws. Swanner v. Anchorage Equal Rights Comm’n, 868 P.2d 301, 312 (four-to-one decision), reh’g granted, withdrawn from bound volume, modified, and reissued per curiam, 874 P.2d 274 (Alaska May 13, 1994).

10 “There are numerous statutes granting husbands and wives rights which do not extend to unmarried partners. See, e.g., G. L. c. 152, §§ 31-32 (1992 ed.) (workers’ compensation law protecting interests of spouse of worker killed in industrial accident); G. L. c. 175, § 1101 (1992 ed.) (providing for continued health insurance coverage for divorced or separated spouses); G. L. c. 175, § 111G (1992 ed.) (extent of family coverage under motor vehicle insurance policy limited to insured, insured’s spouse, and unmarried dependent children under twenty-three years of age); G. L. c. 175, § 123 (1992 ed.) (for purposes of section dealing with restrictions on issuance of life insurance policies, “members of a family shall mean husband, wife, children, adopted children, or step-children”); G. L. c. 190, § 1 (1992 ed.) (spouse’s right to share of property not disposed of by will); G. L. c. 191, §§ 15, 16 (1992 ed.) (spouse’s right to waiver of will and election of statutory share); G. L. c. 193, § 1 (1992 ed.) (surviving spouse listed first in schedule of persons entitled to appointment to administer intestate’s estate); G. L. c. 229, § 1 (1992 ed.) (right of surviving spouse to bring wrongful death action); G. L. c. 233, § 20 (1992 ed.) (spouse’s testimony ordinarily inadmissible as to contents of private husband-wife conversation; no marital communication privilege for conversations before marriage or between unmarried partners [see Reep v. Commissioner of the Dep’t of Employment & Training, 412 Mass. 845, 854 (1992) (Nolan, J., dissenting)]); G. L. c. 274, § 4 (1992 ed.) (spouse has defense against charge of being an accessory after the fact for harboring, concealing, or assisting spouse before or after spouse perpetrated a felony).

11 Our cases have made clear distinctions between the legal rights of marital and nonmarital partners. See, e.g., Collins v. Guggenheim, 417 Mass. 615, 617-618 (1994) (long-term cohabitants not entitled to equitable distribution of property); Reep v. Commissioner of the Dep’t of Employment & Training, supra at 851 (married person who leaves work to join spouse is presumed to have satisfied statutory requirement for unemployment compensation eligibility; long-term nonmarital partner could offer proof toward meeting standard, but without benefit of same presumption); Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987) (nonmarital partners have no right to sue for loss of consortium); Heistand v. Heistand, 384 Mass. 20, 24 (1981) (“Massachusetts does not recognize common-law marriage”); Davis v. Misiano, 373 Mass. 261, 263 (1977) (nonmarital partners have no right to separate support and alimony). '

12 Article 2 provides: “It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the SUPREME BEING, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worship-ping GOD in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.”

13 The exceptions in art. 2 (disturbing the public peace and obstructing the religious worship of others) are not likely to come into play when only art. 2’s protection of beliefs is involved.

14 The Nissenbaum opinion imported into art. 2 analysis the balancing test that then applied under the First Amendment’s free exercise of religion provision. See United States v. Lee, 455 U.S. 252, 256-259 (1982); Wisconsin v. Yoder, 406 U.S. 205, 215-229 (1972).

Beyond the Society of Jesus and Nissenbaum cases, there is little that defines the reach of art. 2 as to conduct. In a considerably older opinion, this court held that an obligation to recite the pledge of allegiance to the American flag did “not in any reasonable sense hurt, molest, or restrain a human being in respect to ‘worshipping God’ within the meaning of words in the Constitution.” Nicholls v. Mayor & Sch. Comm. of Lynn, 297 Mass. 65, 71 (1937). That result could not stand today in light of West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). See Opinions of the Justices, 372 Mass. 874, 878 (1977). More recently, we have held that art. 2 was not violated when an employee was discharged because she declined to attend an employer-mandated, nondenominational seminar that used references to Scriptural texts to reinforce and illustrate its teachings. Kolodziej v. Smith, 412 Mass. 215 (1992). The opinion, however, dealt with the beliefs aspect of art. 2, not its worshiping aspects (id. at 220), and treated art. 2 in conjunction with parallel First Amendment considerations.

15 The three dissenting Justices agree with this conclusion because they decide that art. 46, § 1, absolutely protects the defendants’ right to decline to lease any premises to a cohabiting couple.