Thomas v. Anchorage Equal Rights Commission

165 F.3d 692, 99 Daily Journal DAR 611, 99 Cal. Daily Op. Serv. 414, 1999 U.S. App. LEXIS 440

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 14, 1999
• Docket: Nos. 97-35220, 97-35221
• Status: Published

Opinions

O’SCANNLAIN, Circuit Judge:

We must decide whether the enforcement of Alaska housing laws prohibiting apartment owners from refusing to rent to unmarried couples infringes Christian landlords’ rights under the Free Exercise Clause of the First Amendment.

I

Kevin Thomas and Joyce Baker are owners of residential rental properties in Anchorage, Alaska.¹ Thomas and Baker, as it turns out, are also professed Christians who believe that cohabitation between unmarried individuals constitutes the sin of fornication and that facilitating cohabitation in any way is tantamount to facilitating sin. That Thomas and Baker’s beliefs regarding fornication are firmly rooted both in Biblical text² and in the commentaries of respected Christian theologians is not disputed by the parties.³ Thomas and Baker have committed themselves to practicing their faith in all aspects of their lives, including their commercial activities as landlords. As a result, although they willingly rent to persons of any race, persons of either gender, single persons, and separated or widowed persons, they refuse to rent to unmarried persons who plan to live together.

Both the State of Alaska and the City of Anchorage have adopted laws aimed at preventing discrimination in rental housing. Among its provisions, the Alaska statute makes it unlawful “to refuse to sell, lease, or rent ... real property to a person because of marital status.” Alaska Stat. § 18.80.240(1). The Anchorage ordinance is in all material respects identical. See Anchorage Mun.Code § 5.20.020(A) (“[I]t is unlawful ... to ... [r]efuse to sell, lease or rent ... real property to a person because of ... marital status.”). Under Alaska law, discrimination on the basis of “marital status” includes discrimination against unmarried couples. See Foreman v. Anchorage Equal Rights Comm’n, 779 P.2d 1199, 1202 (Alaska 1989). There is no dispute that Thomas and Baker have previously declined to rent to unmarried cohabitants. Nor is there any question that they have vowed to continue to decline to rent to unmarried couples. Consequently, it is clear that Thomas and Baker’s conduct fits squarely within the terms of the Alaska antidiscrimination laws. The only question before us is whether or not those laws may validly be enforced against Thomas and Baker as a matter of constitutional law.

Thomas and Baker filed suit in federal district court against Paula Haley (the Executive Director of the Alaska State Commission on Human Rights), the Anchorage Equal Rights Commission (“AERC”), and the Municipality of Anchorage, seeking prospective declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201. The landlords claimed that any enforcement of the antidiscrimination laws against them would violate their constitutional rights under the Free Exercise Clause of the First Amendment.⁴ On cross-motions for summary judgment, the district court concluded, as an initial matter, that Thomas and Baker had standing, that their claims were ripe for review, and that the Eleventh Amendment did not preclude the landlord’s complaint against Haley. In a separate order, the court declared that the application of the antidiscrimination laws to Thomas and Baker would violate their rights under the Free Exercise Clause and therefore permanently enjoined both the State and the City from enforcing the laws against the landlords. This appeal ensued.

II

Initially, we must determine whether Thomas and Baker’s claims are ripe for review. Neither Thomas nor Baker has yet been prosecuted; their suits are of the preenforcement variety. In the district court, the landlords sought a declaratory judgment and an injunction “prohibit[ing] the Appellants from acting to enforce Alaska and Anchorage anti-marital status discrimination laws against them or similarly situated landlords.” The Declaratory Judgment Act, 28 U.S.C. § 2201, which authorizes anticipatory suits in some instances, does not relax or otherwise alter the requirement that a ease be “ripe” for judicial review. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937). In fact, § 2201 itself calls for “a case of actual controversy.” Consequently, we must satisfy ourselves that “there is a substantial controversy ... of sufficient immediacy and reality to warrant the issuance of the declaratory judgment.” Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)).

The ripeness inquiry “focuses on whether there is sufficient injury [or threat of injury], and thus is closely tied to the standing requirement.” Portman v. County of Santa Clara, 995 F.2d 898, 902-03 (9th Cir.1993). Under standing doctrine, because Thomas and Baker are not presently subject to prosecution, they must demonstrate a “reasonable threat of prosecution for conduct allegedly protected by the Constitution.” Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 625 n. 1, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (emphasis added): The Supreme Court has alternately articulated this requirement for justiciability as consideration of whether the fear of prosecution or the alleged threats of prosecution are “not imaginary or wholly speculative.” See Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); see also Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (considering whether the alleged threats of prosecution “cannot be characterized as ‘imaginary or speculative’ ”). The “reasonable threat” standards used in evaluating standing are equally applicable in determining ripeness. See Adult Video Ass’n v. Barr, 960 F.2d 781, 786 (9th Cir.1992), vacated sub nom., 509 U.S. 917, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993), reinstated in relevant part, 41 F.3d 503 (9th Cir.1994).

We look to several factors in determining whether a “reasonable threat” of prosecution exists. For instance, this court has deemed it significant whether plaintiffs have articulated “concrete plans to violate” the acts they challenge. See San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th Cir.1996). Thomas and Baker clearly have done so. Both admitted that they have refused in the past, and will continue to refuse in the future, to rent to unmarried cohabitants in violation of the Alaska housing laws. Courts have also pointed to the existence of past prosecutions under the challenged laws as corroborative evidence of a “reasonable threat.” See id. at 1128. Here, the laws at issue have been enforced in the recent past against similarly situated landlords. See, e.g., Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994); Foreman, 779 P.2d 1199. Indeed, the Alaska State Commission on Human Rights is presently engaged in an anti-marital-status discrimination enforcement proceeding against Alaska Pacific University. See Alaska State Comm’n on Human Rights v. Alaska Pacific Univ., ASCHR No. C-96-010 (Complaint Served Feb. 3,1997).⁵ Moreover, as the district court observed in finding this case ripe for judicial review, the state statute has been interpreted by the Alaska Supreme Court as mandating affirmative action on the part of the state human rights commission to discover and root out all vestiges of housing discrimination. See Hotel, Motel, Restaurant, Construction Camp Employees & Bartenders Union v. Thomas, 551 P.2d 942, 945 (Alaska 1976) (“[T]he legislature intended the Commission to be more than a simple complaint-taking bureau; the statutory scheme constitutes a mandate to the agency to seek out and eradicate discrimination in ... the sale, lease, or rental, of real property.”).

We have also analyzed the justiciability of claims like those of Thomas and Baker by considering whether the laws in question have fallen into desuetude or should be considered dead letter. In San Francisco County Democratic Cent. Com. v. Eu, we concluded that claims may be justiciable, notwithstanding a record of non-enforcement of the laws in question, if the record does not show that the laws in question are dead letter or have been “commonly and notoriously” violated. See 826 F.2d 814, 821-22 (9th Cir.1987) (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302-03, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). Here, the recent enforcement of the anti-discrimination laws (as noted above) demonstrates that these laws are not dead letter, nor is there any indication in the record that these laws are so “commonly and notoriously” violated as to render them dead letter, Thomas and Baker’s violations notwithstanding. Moreover, if this court in Eu concluded that claims were justiciable where the law in question had never been enforced, see 826 F.2d at 821-22, we are hard pressed to see how Thomas and Baker’s claims would not be justiciable where the laws in question have been and are presently being enforced.

Adult Video Ass’n is instructive on this point. There, we considered a challenge to provisions of the RICO statute allowing for pre-trial seizures. See 960 F.2d at 786. Nothing in the record indicated that the Department of Justice had ever conducted such seizures, but we concluded that the challenge was justiciable because the statute authorized such seizures, “no formal policy of the Department of Justice prohibit[ed] its prosecutors or officers from pursuing pre-trial seizures, and enforcement practices may change at any time in any ease.” Id. If this was sufficient to render the claim justiciable in Adult Video Ass’n, Thomas and Baker’s claim must similarly be justiciable because they do not rely upon the mere possibility that “enforcement practices may change”— the anti-discrimination laws they challenge have been and are presently being enforced.

The Supreme Court has held that when plaintiffs like Thomas and Baker wish to engage in conduct proscribed by statutes, they may challenge those statutes prior to enforcement where their fear of enforcement or the alleged threats of enforcement are “not imaginary or wholly speculative.” Babbitt, 442 U.S. at 302, 99 S.Ct. 2301; see also Adult Video Ass’n, 960 F.2d at 785 (concluding that claim was justiciable because “apprehension” concerning enforcement was “reasonable”); Darring v. Kincheloe, 783 F.2d 874, 877 (9th Cir.1986) (“[A]n ‘imaginary or speculative’ fear of prosecution is not enough.”). In view of the facts (1) that Thomas and Baker continue to violate the antidiscrimination laws, (2) that the laws have been, and presently are being, enforced against similarly situated landlords, (3) that Alaska and Anchorage authorities are aware of Thomas and Baker’s persistent refusals to rent to unmarried couples, and (4) that the state human rights commission is under an ongoing and affirmative duty to seek out and to punish offending conduct, we cannot say that Thomas and Baker’s fears of enforcement or alleged threats of enforcement are “imaginary or wholly speculative.” Thus, their claims would appear to be justiciable.

This demonstration of a “reasonable threat” may end the ripeness inquiry. In Adult Video Ass’n, we held that “a conclusion that a reasonable threat of prosecution exists, for purposés of standing, effectively dispenses with' any ripeness problem.” 960 F.2d at 786. AERC insists, however, that a reviewing court must also determine that the issues before it are “fit for judicial decision.” San Diego County Gun Rights Comm., 98 F.3d at 1132. While we agree with Adult Video Ass’n’s conclusion that a reasonable threat of prosecution “effectively dispenses with any ripeness problem,” 960 F.2d at 786, we also believe there can be little dispute that the issues here are fit for judicial resolution when considered under the prudential component of the ripeness inquiry. See Portman, 995 F.2d at 902 (recognizing that “[t]he ripeness inquiry contains both a constitutional and a prudential component”).

The “prudential” component of ripeness “focuses on whether there is an adequate record upon which to base effective review.” Portman, 995 F.2d at 903. On that score, AERC maintains, “[t]he inadequacy of the factual record below makes this case unripe for judicial determination.” Indeed, it contends that facts “critical” to the adjudication of the constitutional questions at issue are absent from the record. AERC complains, for instance, that there is no evidence in the record regarding the identity of potential tenants turned away by Thomas and Baker and that the record does not reveal Thomas and Baker’s “actual” motivations for refusing to rent to unmarried individuals. AERC’s “prudential” ripeness argument misses the mark. The identity of potential tenants is simply not relevant to any issue bearing on the case. Thomas and Baker admitted that they have turned away, and continue to turn away, prospective tenants based upon their marital status. The relevant class of potential tenants, therefore, is all unmarried couples; Moreover, Thomas and Baker’s religious motivations were uncontested in the district court. Nor were they seriously contested before us.

We have found issues unripe for review when a decision “would be devoid of any factual context whatsoever,” San Diego Gun Rights Comm., 98 F.3d at 1132, or would “rest[ ] upon [a] hypothetical situation[ ],” Portman, 995 F.2d at 903. The record in this case suffers from no such grave defect. There are no “insuperable obstacles,” Rescue Army v. Municipal Court, 331 U.S. 549, 574, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947), to our reaching a decision on the merits of the underlying constitutional claims. Quite the contrary, as shall become clear in parts below, we have before us all the facts we need to issue an informed decision, among them (1) that Thomas and Baker sincerely believe that cohabitation is a sin, (2) that on that basis, they have refused, and continue to refuse, to rent to unmarried couples, in violation of Alaska law, and (3) that the options available to the landlords are surrendering their beliefs, violating the law, and giving up their livelihoods in residential real estate. These facts — the facts essential to our decision — are, as the district court found, “undisputed.” The parties’ arguments center not upon differing interpretations of the record, but instead upon the differing interpretations of the relevant legal standards. Such “pure legal questions that require little factual development are more likely to be ripe” than fact-intensive claims. San Diego Gun Rights Comm., 98 F.3d at 1132.

This simply is not a “sketchy record ... with many unknown facts.” American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 510 (9th Cir.1991). It is, we conclude, “an adequate record upon which to base effective review.” Portman, 995 F.2d at 903. We therefore agree with the district court’s decision insofar as it held the landlords’ claims ripe for judicial review, and now turn to an examination of those claims.

Ill

In Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court reviewed the constitutionality of an Oregon law that criminalized the ingestion of peyote, as applied to two individuals who claimed that they used the drug as part of a religious ceremony of the Native American Church. In upholding the law against a Free Exercise Clause challenge, the Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Id. at 879, 110 S.Ct. 1595 (quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring in the judgment)). The Court’s holding in Smith has become the backbone of recent Free Exercise Clause jurisprudence, as most burdens on religious liberty are not direct and intentional, but rather the largely unintended incident of neutral, generally applicable regulations.⁶ The Court has made clear, however, that “[a] law failing to satisfy [the Smith ] requirements [of neutrality and general applicability] must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).

Citing Lukumi, Thomas and Baker contend that the statute and ordinance at issue in this case fail to satisfy Smith’s requirement that laws be of “general applicability” and are thus subject to strict First Amendment scrutiny. The Lukumi decision involved a series of Hialeah, Florida, ordinances that the Court found “targeted]” certain religious practices — specifically, ritual animal sacrifice — of the Santería religion. See id. at 542, 113 S.Ct. 2217. The Court concluded that the ordinances were neither neutral nor generally applicable. See id. at 532-546, 113 S.Ct. 2217. The Court therefore subjected the ordinances to “the most rigorous of scrutiny” and ultimately voided them as in violation of the Free Exercise Clause. Id. at 546, 113 S.Ct. 2217.

With respect to the requirement of general applicability, the Lukumi Court started from the proposition that government “cannot in a selective manner impose burdens only on conduct motivated by religious belief.” Id. at 543, 113 S.Ct. 2217 (emphasis added). Observing that the ordinances contained numerous exemptions (that seemingly permitted all animal killings except those of the Santería), the Court rejected the City’s claim that the ordinances there at issue advanced the twin interests of protecting public health and preventing animal cruelty: “The ordinances are underinelusive for those ends. They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santería sacrifice does.” Id. In other words, considering the numerous exemptions, it was clear that “each of Hialeah’s ordi-. nances pursue[d] the city’s governmental interests only against conduct motivated by religious belief.” Id. at 545, 113 S.Ct. 2217. The Court thus concluded that “the ordinances [we]re drafted with care to forbid few killings but those occasioned by religious sacrifice.” Id. at 543, 113 S.Ct. 2217.

Thomas and Baker claim that, like the ordinances at issue in Lukumi, the Alaska laws are “underinelusive and, therefore, not generally applicable.” Specifically, they point to the fact that the Alaska statute prohibits “refusing] to sell, lease, or rent the real property to a person because of ... marital status” but expressly allows “the sale, lease or rental of classes of real property commonly known as housing for ‘singles’ or ‘married couples’ only.” Alaska Stat. § 18.80.240. Likewise, they note that the Anchorage ordinance excepts from its scope landlords who rent space in “individual home[s] wherein the renter or lessee would share common living areas with the owner, lessor, manager, agent or other person.” Anchorage Mun.Code § 5.20.020. Because, Thomas and Baker argue, “[b]y way of these laws marital status discrimination is specifically allowed under certain circumstances,” the laws are constitutionally suspect.

The underinclusiveness at play in Lukumi, however, was of a different constitutional order altogether from that at issue here. There, “the underinclusion [was] substantial, not inconsequential.” Lukumi, 508 U.S. at 543, 113 S.Ct. 2217. There, the ordinances were “drafted with care to forbid few killings but those occasioned by religious sacrifice.” Id. Here, in contrast to the situation in Lu-kumi, the “underinclusion” — which consists of only a single exception per challenged provision — is relatively inconsequential. Boiled down, in Lukumi, the ordinances applied essentially only to the Santería; here, the challenged laws apply essentially to all landlords.

Underinclusiveness is not in and of itself a talisman of constitutional infirmity; rather, it is significant _ only insofar as it indicates something more sinister. In Lukumi, the Court considered the ordinances’ lack of neutrality and general applicability as a proxy of the Hialeah lawmakers’ illicit intention to single out the Santería religion for unfavorable treatment. The Court observed that the pattern of exemptions present in the Hialeah ordinances betrayed their object as one of suppressing religious exercise. See id. at 533-46, 113 S.Ct. 2217. Because the ordinances were “designed to persecute or oppress a religion or its practices,” id. at 547, 113 S.Ct. 2217, the Court concluded that the permissive Smith standard did not apply.

There is no hint that the Alaska laws were “drafted with care to forbid few [instances of marital status discrimination] but those occasioned by religious [conviction].” Id. at 543, 113 S.Ct. 2217. Nor do the laws “in a selective manner impose burdens only on conduct motivated by religious belief.” Id. at 543, 113 S.Ct. 2217 (emphasis added). There is, in sum, no indication that Alaska lawmakers were impelled by a desire to target or suppress religious exercise. The housing laws, we think, have the purpose of preventing discrimination on the basis of marital status; any burden on religiously motivated conduct, even if substantial, is incidental. Consequently, absent some other exception, Smith, not Lukumi, governs the landlords’ claims.

IV

Thomas and Baker insist that the laws here at issue do fall within the scope of a second exception to Smith: the so-called “hybrid-rights” exception. In so arguing, they point to the following language from the Court’s opinion in Smith:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S., at 304-307, 60 S.Ct. 900 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944) (same), or the rights of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).

Smith, 494 U.S. at 881, 110 S.Ct. 1595 (parallel citations omitted). The Court in Smith found that the facts of that case did not present “such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.” Id. at 882, 110 S.Ct. 1595 (emphasis added).

Thomas and Baker contend that the Alaska housing laws implicate not only their rights to free exercise, but other constitutional rights as well. Consequently, they argue that their claims are within the hybrid-rights exception to Smith and require strict scrutiny. They first claim that the laws’ prohibitions against “refusing] to sell, lease[,] or rent” to unmarried cohabitants, Alaska Stat. § 18.80.240(1); Anchorage Mun.Code § 5.20.020(A), infringe their rights, grounded in the Fifth Amendment, to exclude others from their property. Thomas and Baker also maintain that certain portions of the housing laws burden their First Amendment free speech rights. Specifically, they point to the provisions of the laws that make it unlawful for a landlord to “make a written or oral inquiry or record” of the marital status of a prospective lessee, Alaska Stat. § 18.80.240(3); Anchorage Mun.Code § 5.20.020(C), or to “represent to a person that real property is not available for inspection, sale, rental, or lease” on the basis of the lessee’s marital status, Alaska Stat. § 18.80.240(5); Anchorage Mun.Code § 5.20.020(E). The Anchorage ordinance also prohibits landlords to “make, print or publish” any communication or statement indicating any preference or discrimination based upon marital status. Anchorage Mun. Code § 5.20.020(G).

A

Before determining whether the landlords’ hybrid-rights argument succeeds on the merits, we must decide whether a hybrid-rights exception to Smith actually exists and, if so, exactly what a hybrid-rights claim entails. Addressing the issue, the district court concluded:

These prohibitions ... impact plaintiffs’ freedom of speech and bring this case within the purview of those hybrid cases acknowledged by the Supreme Court in Smith. Plaintiffs assert a colorable claim under the First Amendment and the compelling interest test should be applied.

In a footnote, the court clarified its understanding of the hybrid-rights exception’s scope:

Plaintiffs do not contend that they could “carry the day” with these First Amendment arguments, nor does the Smith decision imply any such requirement. Plaintiffs simply assert that their free speech rights are implicated in this case along with their free exercise rights, and therefore the compelling interest test should be used. The court agrees.

Thomas and Baker substantially agree with the district court’s characterization of the hybrid-rights exception as turning upon the demonstration of a “colorable claim.” They contend that it is sufficient to trigger strict scrutiny that their free speech and property rights were “burdened.” Appellant Haley, by contrast, maintains that the “companion” right (the non-free-exercise half of the hybrid) must itself be constitutionally protected,” that is, it must be independently viable.

The Supreme Court has been somewhat less than precise with regard to the nature of hybrid rights. In Smith, the Court referred to claims involving the Free Exercise Clause “in conjunction with” or “[ jconnected with” other constitutional protections. Smith, 494 U.S. at 881, 110 S.Ct. 1595. Last Term, in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Court paraphrased the Smith hybrid passage and spoke of cases that “implicated” other constitutional rights alongside free exercise freedoms. See id. at 2161, 117 S.Ct. 2157. Perhaps not surprisingly in view of the Supreme Court’s rather cryptic explanations, the courts of appeals have struggled to decipher Smith’s hybrid-rights formula and have reached divergent conclusions as to exactly what constitutes a hybrid-rights claim. The First and District of Columbia Circuits have suggested that Smith mandates the existence of an independently viable companion right in addition to free exercise. See EEOC v. Catholic University of America, 83 F.3d 455, 467 (D.C.Cir.1996) (holding that an independent Establishment Clause violation triggered the hybrid exception); Brown v. Hot, Sexy & Safer Prods., 68 F.3d 525, 539 (1st Cir.1995) (concluding that the hybrid exception was not triggered because the plaintiffs had not shown an independent substantive due process violation). The Tenth Circuit, on the other hand, requires only a “colorable claim of infringement,” that is, something less than an outright violation of a companion right yet more than a simple allegation. See Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir.1998).

We have never explored in any detail the contours of the so-called hybrid-rights doctrine.⁷ In undertaking that task today, we must at the outset confess that none of the contending interpretations of Smith’s hybrid-rights passage is perfect. Each, unfortunately, entails certain logical and interpretive difficulties.⁸ Indeed, faced with what it viewed as the “complete[ ] illogic[ ]” of the hybrid-rights exception, the Sixth Circuit opted to ignore it altogether and to proceed as if Smith applied categorically to all neutral, generally applicable laws incidentally burdening free exercise rights. See Kissinger v. Board of Trustees, 5 F.3d 177, 180 (6th Cir.1993) (“[A]t least until the Supreme Court holds that legal standards under the Free Exercise Clause vary depending upon whether other constitutional rights are implicated, we will not use a stricter test than that used in Smith to evaluate generally applicable, exceptionless state regulations under the Free Exercise Clause.”). Although undoubtedly the path of least resistance, there is a salient problem with the Sixth Circuit’s decision simply to throw up its hands in despair: Smith did not overrule Cantwell, Murdock, Follett, and Yoder; it distinguished them. Those cases — each of which requires an exemption from a neutral, generally applicable law (and thus contradicts the central holding of Smith) — remain on the books and are binding on lower courts. We are not at liberty to ignore them.

We therefore turn, as we believe we must, to consider the nature of “hybrid” rights.

B

We begin our analysis, perhaps paradoxically, with Justice Souter’s separate concurrence in Lukumi, in which he roundly criticized Smith’s notion of hybrid-rights:

[T]he distinction Smith draws strikes me as ultimately untenable. If a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule, and, indeed, the hybrid exception would cover the situation exemplified by Smith, since free speech and associational rights are certainly implicated in the peyote ritual. But if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls hybrid cases to have mentioned the Free Exercise Clause at all.

Lukumi, 508 U.S. at 567, 113 S.Ct. 2217 (Souter, J., concurring). In other words, according to Justice Souter, the application of the hybrid-rights exception can turn neither upon the fact that a companion right is “implicated” (else the central holding of Smith vanishes) nor upon the existence of a fully protected, independently viable companion right (else the Free Exercise Clause itself vanishes).

Justice Souter was clearly correct, we think, to reject an independently-viable-rights theory of hybrid rights. We acknowledge that, in siding with Justice Souter, we part company with two of our sister circuits. See Catholic University of America, 83 F.3d at 467; Hot, Sexy & Safer, 68 F.3d at 539. Nonetheless, the Supreme Court’s repeated references to the Free Exercise Clause in the so-called hybrid cases leave us with little doubt that, whatever else it did, the Court did not rest its decisions in those cases upon the recognition of independently viable free speech and substantive due process rights. See Yoder, 406 U.S. at 214, 215, 218, 219-220, 92 S.Ct. 1526 (alluding to the Free Exercise Clause); Follett, 321 U.S. at 576, 577, 64 S.Ct. 717 (same); Murdock, 319 U.S. at 107, 108, 111, 114, 115, 63 S.Ct. 870 (same); Cantwell, 310 U.S. at 300, 303, 305, 307, 60 S.Ct. 900 (same). We will not lightly presume that, in specifically and continually invoking the Free Exercise Clause, the Supreme Court was wasting its breath. Just as we do when faced with a declaration of the legislative department, see, e.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985) (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”), we must take a judicial pronouncement at face value. We will not speculate or hypothesize about the Justices’ “true” intentions; rather, we will assume that those intentions are expressed in the words the Justices carefully chose to express the opinion of the Court. When the Court said “Free Exercise Clause,” it meant it.

We also agree with Justice Souter’s observation that the mere fact that a companion right is “implicated” cannot serve as the touchstone for heightened scrutiny. Government action will almost always “implicate” a host of constitutional rights, even though it does not seriously threaten, much less violate, any of them. Hence, under a permissive “implication” standard, rarely if ever would a neutral, generally applicable law be subject to the general rule of Smith (including, as Justice Souter pointed out, the Oregon law at issue in Smith itself). The same conclusion follows a fortiori if all that is needed to trigger strict scrutiny is the mere allegation of a companion right.

Although we accept Justice Souter’s premises, we cannot subscribe to his ultimate conclusion — that the hybrid-rights doctrine is “untenable.” Instead, we believe that the best understanding of Smith actually suggests an approach to hybrid-rights claims that falls somewhere between the two extremes marked out by Justice Souter. That is to say, an individual claiming to be within the hybrid-rights exception may not rest upon a bald assertion that a companion right exists or the fact that a companion right is somehow “implicated” by a government policy. Nor, however, is he required to show that the law he challenges is invalid under a companion provision alone, without regard to the Free Exercise Clause. Like our colleagues on the Tenth Circuit, and like the district court here, we conclude that a plaintiff invoking Smith’s hybrid exception must make out a “colorable claim” that a companion right has been infringed. See Swanson, 135 F.3d at 700.

To be sure, a “colorable claim” standard does not provide the exactitude of an allegation-only standard or an independently-viable-rights standard; it will require courts reviewing free exercise claims to make difficult, qualitative, case-by-case judgments regarding the strength of companion-claim arguments. The term “colorable” certainly is not meaningless, however. Webster’s provides what we think is a useful explanation, defining colorable to mean “seemingly valid and genuine.” Webster’s Third New International Dictionary 449 (1986). Nor is the word “colorable” a term without legal pedigree. For instance, in habeas cases not governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, Supreme Court precedent dictates that courts need only entertain successive petitions in which the prisoner supplements his constitutional claim with a “colorable showing of factual innocence.” Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). In Kuhl mann, the Supreme Court explained its col-orable-showing standard as requiring that the petitioner demonstrate a “fair probability” that “the trier of facts would have entertained a reasonable doubt of his guilt.” Id. at 454 n. 17, 106 S.Ct. 2616 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 160 (1970)) (internal quotation marks omitted). Similarly, only recently, the Supreme Court observed that a defendant seeking to obtain discovery on a selective prosecution claim must establish a “colorable basis” for the claim, and acknowledged a consensus among courts of appeals that the colorable-basis standard “require[s] some evidence tending to show the existence of the essential elements of the defense.” United States v. Armstrong, 517 U.S. 456, 468, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); accord United States v. Bourgeois, 964 F.2d 935, 938-39 (9th Cir.1992). Courts engage in similarly complex, fact-sensitive inquiries in other contexts, albeit without specifically employing the term “colorable.” See, e.g., Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A) (stating that the determination whether to award fees to a prevailing party in a civil case brought by or against the United States depends upon whether the government’s position, although incorrect, was “substantially justified”); Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (interpreting EAJA’s “substantially justified” language to mean having a “reasonable basis in both law and fact”). Indeed, the colorable-claim standard we adopt today for evaluating hybrid-rights claims is not altogether different from the traditional “likelihood of success on the merits” test that governs the issuance of preliminary injunctive relief. See Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1438 (9th Cir.1997) (“A preliminary injunction may issue ‘if the movant has shown either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the mov-ant’s favor.’ ” (quoting Armstrong v. Mazurek, 94 F.3d 566, 567 (9th Cir.1996))). Consequently, although not perfectly precise, the colorable-claim test is not standardless. Rather, despite subtle variations, there is, we think, a certain “center of gravity” to these formulations that informs our understanding of what it means to state a “colorable” claim: In order to trigger strict scrutiny, a hybrid-rights plaintiff must show a “fair probability” — a “likelihood” — of success on the merits of his companion claim.

Furthermore, particularly in view of the interpretive difficulties surrounding Smith’s hybrid-rights passage, we believe that any hybrid rule’s administrability must play second fiddle to its consistency with Supreme Court precedent. And on that score, a color-able-claim standard is clearly superior to the alternatives. It avoids the pitfalls of both the more permissive “implication” and “allegation-only” tests and the more exacting “independently-viable-rights” test identified by Justice Souter. Under an implication standard, the claims raised in Smith would themselves have been within the scope of the hybrid-rights exception (not the general rule), since free speech rights “are certainly implicated in the peyote ritual,” Lukumi, 508 U.S. at 567, 113 S.Ct. 2217 (Souter, J., concurring) (emphasis added). An implication standard thus renders the result in Smith— that no hybrid claim was demonstrated and that strict scrutiny was therefore inapplicable — a non sequitur. The colorable-claim standard we adopt engenders no such problem. The plaintiffs in Smith could not have made out a “colorable claim of infringement” with respect to their free speech rights. Ingesting peyote is certainly not “speech” in the traditional sense; at best, it is “expressive conduct.” And the only cases in which the Supreme Court has invalidated laws regulating expressive conduct are those in which it has concluded that the government has prohibited such conduct “precisely because of its communicative attributes.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 576, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Scalia, J., concurring in the judgment) (citing United States v. Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990), Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), and Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931)). There was no serious argument in Smith that the Oregon legislature had targeted the respondents’ use of peyote because of the message it conveyed. Hence, given a colorable-claim standard of hybrid rights, Smith was decided exactly as it should have been. On the other hand, whereas an independently-viable-rights interpretation of hybrid rights cannot reasonably explain the Supreme Court’s repeated allusions to the Free Exercise Clause in Cantwell, Murdock, Follett, and Yoder, a col-orable-claim standard jibes perfectly with the Court’s side-by-side references to the Free Exercise Clause and free speech and substantive due process rights in those cases. Consequently, among the potential approaches to hybrid rights, only a colorable-claim standard accounts both for Smith (which an implication standard cannot) and for the original hybrid cases (which an independently-viable-rights standard cannot).

Because, under the rule we announce today, a free exercise plaintiff must make out a “colorable claim” that a companion right has been violated — that is, a “fair probability” or a “likelihood,” but not a certitude, of success on the merits — neither the central holding of Smith nor the Free Exercise Clause is rendered without substantive bite. Our color-able-claim standard is therefore neither too lax nor too strict, but “just right.”

C

We now turn to consider whether Thomas and Baker have demonstrated a “colorable claim of infringement” with respect to their so-called companion rights. Recall that they complain that the laws infringe their Fifth Amendment “right to exclude” and their First Amendment right to free speech. Because the landlords’ principal complaint is that the Alaska laws purport to require them actually to rent to unmarried cohabitants, we consider the Fifth Amendment claim first.

Thomas and Baker contend that the Takings Clause of the Fifth Amendment,⁹ “provides a property owner constitutional protection to exclude others from the owners (sic) property.” It is true that the Supreme Court has “repeatedly held that ... the right to exclude [others is] ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’ ” Nollan v. California Coastal Comm’n, 483 U.S. 825, 831, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979))); accord 2 William Blackstone, Commentaries on the Laws of England *8 (“[Occupancy gave the right to ... exclude [ ] every one else but the owner from the use of it.”). Technically speaking, however, the Takings Clause does not “provide” the right to exclude; it merely protects against that right being “taken ... without just compensation.” The relevant inquiry, therefore, is not whether Thomas and Baker possess a right to exclude others from their rental properties. They do. The question is whether, by forbidding them from “refus[ing] to sell, lease[,] or rent the real property to a person because of ... marital status,” the State (or the municipality, as the case may be) has “taken” that right.

There has, of course, been a “taking” in the literal sense. Insofar as they are compelled by the laws at issue to entertain the rental applications of unmarried cohabitants, Thomas and Baker are prevented from fully exercising their rights to exclude. See PruneYard Shopping Center v. Robins, 447 U.S. 74, 82, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). However, “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense.” Armstrong v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). The question whether a law gives rise to an unconstitutional taking depends upon the nature of the challenged government action. As the Supreme Court explained in Yee v. City of Escondido, 503 U.S. 519, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992), Takings Clause cases generally fall into one of two categories:

Where the government authorizes a physical occupation of property (or actually takes title), the Takings Clause generally requires compensation. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). But where the government merely regulates the use of property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole. See, e.g., Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123-125, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions.

Id. at 522-23, 112 S.Ct. 1522 (parallel citations omitted).

In Yee, a group of mobile home owners challenged the constitutionality of a local rent control ordinance. Viewed in conjunction with California’s Mobilehome Residency Law, Cal. Civ.Code Ann. § 798, they argued, the ordinance unconstitutionally required the owners to submit to a permanent physical occupation of their property under the Loret-to line of cases. The Supreme Court, however, rejected their claim. Significantly, the Court expressly rejected the notion, urged by the landowners, that they possessed a per se Takings Clause right to “choose their incoming tenants.” Id. at 530-31, 112 S.Ct. 1522. Rather, the Court acknowledged, “[w]hen a landowner decides to rent his land to tenants, the government may ... require the landowner to accept tenants he does not like ... without automatically having to pay compensation.” Id. at 529, 112 S.Ct. 1522 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964)) (emphasis added).

The Yee Court’s holding, however, was narrow. The Court simply concluded that because the mobile home owners had “voluntarily open[ed] their property to occupation by others, [they could not] assert a per se right to compensation based on their inability to exclude particular individuals.” Id. at 531, 112 S.Ct. 1522. The Court expressly acknowledged that a landlord’s inability to choose his tenants “may be relevant to a regulatory taking argument, as it may be one factor a reviewing court would wish to consider in determining whether the ordinance unjustly imposes a burden on [a] petitioner[ ] that should ‘be compensated by the government, rather than remain[ing] disproportionately concentrated on a few persons.’ ” Id. at 531, 112 S.Ct. 1522 (quoting Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)) (emphasis added).¹⁰

In judging whether a government regulation of property constitutes a “regulatory taking,” a reviewing court must undertake an “essentially ad hoc, factual inquir[y].” Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). The Supreme Court has, however, recognized three factors as particularly important to the regulatory-taking calculus: (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action. See Eastern Enterprises v. Apfel, 524 U.S. 498, -, 118 S.Ct. 2131, 2135, 141 L.Ed.2d 451 (1998); Penn Central, 438 U.S. at 124, 98 S.Ct. 2646.

Thomas and Baker have not alleged that the laws at issue interfere with their investment-backed expectations or otherwise adversely impact them economic interests. Nor could they, it would seem, at least absent a showing that, by renting to unmarried couples in accordance with the challenged laws, their net number of “units rented” would go down. Common sense would appear to dictate the opposite conclusion: A rule requiring a landlord to rent to a certain class of otherwise disqualified people would enlarge the pool of prospective renters, and thus perhaps increase — but certainly not decrease — his bottom line by reducing the likelihood that any given apartment would remain vacant.

The Supreme Court has consistently acknowledged, however, that the “bottom line” is not the sole measure of a successful Takings Clause claim. In Loretto, for instance, the Court concluded that a property right had been “taken” notwithstanding the fact that the claimed infringement — a requirement that apartment owners permit the installation of cable television boxes and wires on their buildings — in all likelihood increased, the value of the owners’ property. See Loretto, 458 U.S. at 437 n. 15, 102 S.Ct. 3164. Indeed, just last Term, the Court reaffirmed its “longstanding” commitment to the proposition that “property is more than economic value; it also consists of ‘the group of rights which the so-called owner exercises in his dominion of the physical thing,’ such ’as the right to possess, use and dispose of it.” Phillips v. Washington Legal Found., 524 U.S. 156, -, 118 S.Ct. 1925, 1933, 141 L.Ed.2d 174 (1998) (quoting United States v. General Motors Corp., 323 U.S. 373, 380, 65 S.Ct. 357, 89 L.Ed. 311 (1945)) (internal citations omitted). The Alaska laws may not reduce the monetary value of Thomas and Baker’s property; however, there can be no doubt that the laws interfere with the landlords’ “dominion” and “possession]” of that property.

Under the “charaeter-of-the-regulation” prong of the regulatory takings analysis, “[a] ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the social good.” Penn Central, 438 U.S. at 124, 98 S.Ct. 2646. Although the Alaska housing laws do not, under Yee, rise to the level of a permanent physical occupation sufficient to trigger a per se right to compensation, they authorize a “physical invasion” of the landlords’ property just the same. We thus conclude that Thomas and Baker have made out a substantial argument that the Alaska laws “go[ ] too far,” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922), and, thus, a colorable claim that their rights under the Takings Clause of the Fifth Amendment have been infringed. Hence, the Fifth Amendment serves to “hybridize” their Free Exercise Clause challenge to § 18.80.240(1) of the Alaska statute and § 5.20.020(A) of the Anchorage ordinance.

With respect to Thomas and Baker’s free speech challenge,¹¹ Haley contends that the expression at issue in this case is “constitutionally unprotected” commercial speech. Although so-called commercial speech is not outside the scope of the First Amendment, the Supreme Court has made clear that “[t]he Constitution ... affords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” United States v. Edge Broadcasting Co., 509 U.S. 418, 426, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993). Consequently, “[b]ecause the degree of protection afforded by the First Amendment depends upon whether the activity sought to be regulated constitutes commercial or non-commercial speech, we must first determine the proper classification of the [expression] at issue here.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983).

There is no litmus test for distinguishing commercial from noncommercial expression. Indeed, the Supreme Court itself has acknowledged that the “precise bounds” of commercial speech are “subject to doubt.” Zauderer v. Supreme Court of Ohio, 471 U.S. 626, 637, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). Until relatively recently, the Court seemed to treat commercial speech as if it entailed both a “core” and a “periphery.” Inside the core was expression that did “no more than propose a commercial transaction.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); see also Bolger, 463 U.S. at 66, 103 S.Ct. 2875 (dubbing speech that “does no more than propose a commercial transaction” the “core notion” of commercial speech). Core commercial speech included “advertising pure and simple,” Zauderer, 471 U.S. at 637, 105 S.Ct. 2265, as well as other expression reducible to the formula, “I will sell you the X at the Y price,” Virginia Pharmacy, 425 U.S. at 762. Speech outside the core, the Court held, “present[ed] a closer [First Amendment] question.” Reviewing courts therefore had to “examine[ ] carefully” restrictions that transcended the core of commercial speech “to ensure that speech deserving of greater constitutional protection [was] not inadvertently suppressed.” Bolger, 463 U.S. at 66, 103 S.Ct. 2875. As a guide, the Supreme Court in Bolger set out three indicia of non-core commercial speech: (1) an advertising format; (2) a reference to a specific product; and (3) an underlying economic motive of the speaker. See Bolger, 463 U.S. at 67, 103 S.Ct. 2875.

In recent years, the Court appears quite self-consciously to have pared down the definition of commercial speech. In City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), the Court renounced as too broad its earlier characterization of commercial speech in Central Hudson Gas and Electric Corp. v. Public Service Commission, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), as any “expression related solely to the economic interests of the speaker and its audience.” See Discovery Network, 507 U.S. at 422, 113 S.Ct. 1505 (“We did not ... use that definition in either Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), or in Board of Trustees of State University of N.Y. v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989).” (parallel citations omitted)). The Court in Discovery Network also cast serious doubt upon Bolger’s bifurcated core-periphery framework. See id. at 423, 113 S.Ct. 1505. The Court strongly suggested that the only type of expression that is “commercial” in the constitutional sense is that which does “no more than propose a commercial transaction.” Citing its decision in Fox, the Court held that “the proposal of a commercial transaction [is] ‘the test for identifying commercial speech.’ ” Id. (quoting Fox, 492 U.S. at 473-74, 109 S.Ct. 3028) (emphasis in Discovery Network).

It seems clear enough that the speech restrictions at issue in this case are not aimed solely at proscribing expression that does “no more than propose a commercial transaction.” Rather, they go much farther, and make it unlawful for a landlord (1) to “make a written or oral inquiry or record” of the marital status of a prospective lessee, (2) to “represent to a person that real property is not available for inspection, sale, rental, or lease” on the basis of the lessee’s marital status, or (3) to “make, print or publish” any communication or statement indicating any preference or discrimination based upon marital status. Alaska Stat. § 18.80.240; Anchorage Mun.Code § 5.20.020. This simply is not a case of “I will sell you X at the Y price.” Virginia Pharmacy, 425 U.S. at 762, 96 S.Ct. 1817. Under Discovery Network, that observation alone suffices to classify the expression as noncommercial.

Even were we to assume that Bolger.’s bifurcated analysis survived Discovery Network and thus remained a viable approach to defining commercial speech, we would nonetheless be compelled to conclude that the expression contemplated by the Alaska laws is not mere commercial speech, but fully protected religious speech. None of the three factors outlined in Bolger is applicable here. The communications prohibited by the Alaska laws need not be presented as part of an “advertising format” to fall within the laws’ scope. Nor would covered statements necessarily have to reference a “specific product.” Finally — and, we think, most importantly — although a landlord seeking to rent an apartment would, almost by definition, possess an underlying “economic motive,” it is religious conviction, not economics, that would cause Thomas or Baker (or any other similarly situated landlord) to make the inquiries, records, representations, or communications contemplated by the Alaska laws. Indeed, far from emanating from any pecuniary motive, a landlord’s statement, “I prefer not to rent to unmarried couples,” runs directly counter to his economic interests. A Christian landlord in Thomas and Baker’s position has a distinct economic disincentive to speak up about his opposition to non-marital cohabitation. By expressing his beliefs, he runs the risk of losing a prospective tenant and leaving a vacant apartment unrented. When he speaks up anyway, he does so, not for economic reasons, but out of religious conviction. We recognize, of course, that the Bolger Court did not envision its decision as establishing a hard-and-fast formula for identifying non-core commercial speech; none of the factors is either necessary or sufficient to a determination that any given speech is “commercial.” See Bolger, 463 U.S. at 67 & n. 14, 103 S.Ct. 2875. However, just as the Court in Bolger deemed the simultaneous presence of all three factors to be persuasive evidence that the speech there at issue was commercial in character, see id. at 67, 103 S.Ct. 2875, we believe that the simultaneous absence of all three is indicative of the non-commercial nature of the expression prohibited by the Alaska housing laws.

Consequently, whether under the narrow construction of commercial speech adopted in Virginia Pharmacy and recently endorsed in Discovery Network or the more permissive framework outlined in Bolger, we conclude that the expression targeted by the Alaska housing laws cannot be considered mere commercial speech. The simple fact is that not all speech which takes place in the context of a commercial transaction is “commercial speech.”¹²

Here, the expression forbidden by the Alaska anti-discrimination laws is, at its essence, religious speech, which enjoys plenary First Amendment protection. See, e.g., Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Moreover, there can be no doubt that both the Alaska statute and the Anchorage ordinance purport to regulate landlords’ speech based upon its content. Under the laws, apartment owners and lessors are permitted to make inquiries, representations, and statements regarding some subjects, such as a prospective lessee’s annual income, but not others, such as the lessee’s marital status. “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). Indeed, content-based regulations of expression are presumed invalid under the First Amendment. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).

Based upon the presumption of unconstitutionality that attaches to content-discriminatory laws of the sort at issue in this case, we believe that Thomas and Baker have made a colorable claim that the Alaska housing laws infringe their rights to free speech. The First Amendment thus serves to “hybridize” their Free Exercise challenge to §§ 18.80.240(3) and 18.80.240(5) of the Alaska statute and §§ 5.20.020(C), 5.20.020(E), and 5.20.020(G) of the Anchorage ordinance.

y

Because we conclude that Thomas and Baker have successfully demonstrated hybrid-rights claims under the Takings and Free Speech Clauses, we must determine “whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.” Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). We address the issues in turn. If the former question begets an affirmative response and the latter a negative, we must invalidate the Alaska laws insofar as they apply to Thomas and Baker and similarly situated landlords.

With regard to the burden issue, Thomas and Baker argue that the laws present them with a Hobson’s Choice of sorts between (1) violating their religious beliefs by renting to unmarried couples, (2) suffering punishment for refusing to rent to unmarrieds, and (3) forsaking their livelihoods as apartment owners altogether. That choice, they argue, renders the burden on their religious beliefs “substantial.” Director Haley counters on two fronts. As an initial matter, she points out that “[t]he landlords’ religion does not require them to rent housing”; rather, they do so “as a matter of choice for personal profit.” She insists that “[t]he fact that the landlords’ religious objection arises from regulation of their voluntary commercial activity renders any burden insubstantial.” In support of her proposed prophylactic “commercial activity” exception to the substantial-burden rule, Haley relies upon United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), and Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). Most prominently, Haley points to the Lee Court’s statement that

[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in the activity.

Lee, 455 U.S. at 261, 102 S.Ct. 1051. Contrary to Haley’s suggestion, however, the Lee Court never intimated that the fact that a free exercise dispute arises in a “commercial” context might in and of itself affect the substantiality of the claimed burden. On the contrary, it expressly concluded that the government regulation there at issue — compulsory participation in the social security system — did “interfere[ ] with [the petitioners’] free exercise rights.” Id. at 257, 102 S.Ct. 1051. Seemingly assuming that the burden was substantial, the Court then proceeded immediately to consider whether or not the government could save the law by demonstrating a compelling state interest in the maintenance of the challenged program. See id. at 257-58, 102 S.Ct. 1051. Concluding that it could, the Court rejected Lee’s free exercise claim. See id. at 260, 102 S.Ct. 1051. The mere fact that the Court in Lee reached the compelling-interest issue (which is logically subsequent to the burden issue) confirms that it found a substantial burden.

Haley’s reliance upon Alamo is similarly misplaced. She cites Alamo for the proposition that regulations which “apply only to commercial activities undertaken with a ‘business purpose’ ” do not constitute constitutionally substantial burdens on free exercise. Alamo, 471 U.S. at 305, 105 S.Ct. 1953. The language that Haley recites, however, is taken, not from the portion of the opinion addressing the substantial-burden issue, but rather from a passage disposing of Establishment Clause challenges. Consequently, neither Lee nor Alamo supports a per se (or even presumptive) rule that burdens levied in commercial contexts are not constitutionally substantial. See Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233, 238 (Mass.1994) (“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.”).

Haley’s second argument regarding the burden issue goes something like this: Thomas and Baker may avoid having either to compromise their religious beliefs or to face criminal penalties by simply “cashing out,” that is, by selling their apartments and redeploying their capital in another investment; because the landlords retain that option, any burden on their religious rights is constitutionally insubstantial. To determine whether or not the Alaska laws at issue substantially burden Thomas and Baker’s freedom of religion, we must “look[ ] to the degree that the government’s requirement will, directly or indirectly, make the believer’s religious duties more difficult or more costly.” Laurence H. Tribe, American Constitutional Law § 14-12, at 1247 (2d ed.1988). This court has stated that, at a minimum, the interference with religious beliefs “must be more than an inconvenience.” Graham v. Commissioner, 822 F.2d 844, 851 (9th Cir.1987), aff'd sub nom., Hernandez v. Commissioner, 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). In attempting to show that the burden on Thomas and Baker’s religious exercise is nothing more than a simple inconvenience, Haley relies heavily upon Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). There, the Supreme Court rejected challenges to a Pennsylvania Sunday-closing law brought by Orthodox Jewish merchants. The storeown-ers claimed that, if they wished to exercise their religious beliefs by remaining closed to business on the Saturday sabbath, enforcement of the law would put them at a distinct economic disadvantage vis a vis their non-Sabbatarian competitors. The Court, however, refused their argument, stating that a governmental regulation that merely “operates so as to make the practice of [an individual’s] religious beliefs more expensive” does not impose a sufficiently “substantial burden” to trigger Free Exercise Clause scrutiny. Id. at 605, 81 S.Ct. 1144.¹³

It is true that, because Thomas and Baker retain the cash-out option, the Alaska laws might not make their free exercise significantly “more expensive.”¹⁴ Expense, however, is not the sole consideration involved in determining whether a burden is constitutionally substantial or is instead merely “in-convenien[t].” See id. The burden imposed upon Thomas and Baker is qualitatively different — though we think no less severe— than an imposition of increased cost: The Alaska housing laws de facto banish both Thomas and Baker from the Alaska rental market altogether and force them to forsake their livelihoods as apartment owners and lessors. The laws do not effect a mere marginal reduction in business; they put Thomas and Baker out of business.

Moreover, Haley’s “could have just quit” argument would seem equally applicable to the successful free exercise plaintiffs in the so-called “unemployment compensation cases,” none of whom alleged that his respective religion required that he work for an employer whose business practices contravened his sincerely held religious beliefs. See Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987); Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In none of those cases did the Court entertain — much less credit — the argument that the religious adherent could simply have left his job and have found an occupation that better suited his religious beliefs and practices. Rather, the Court’s eases centered on a simple principle:

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 on religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.

Hobbie, 480 U.S. at 141, 107 S.Ct. 1046 (quoting Thomas, 450 U.S at 717-18, 101 S.Ct. 1425). The same “substantial pressure” to modify behavior and to violate beliefs that was present in the unemployment compensation eases is at work here. The same Hob-son’s Choice that faced the employee-plaintiffs in those cases confronts Thomas and Baker.

Director Haley insists that the unemployment compensation cases are “inapplicable, because engaging in the rental business is not a government benefit,” as is receiving welfare. Although we acknowledge a distinction between being deprived of unemployment “benefits” and being deprived of one’s chosen occupation, it is hard to imagine why the distinction is one with a constitutional difference. Surely, one’s statutory entitlement to government largesse holds no talis-manic significance over and above one’s interest in exercising his professional skills in his own way, such that the denial of the former triggers First Amendment scrutiny but the denial of the latter does not. Cf. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (“[Fourteenth Amendment ‘liberty’] denotes ... the right of the individual ... to engage in any of the common occupations in life.”). In neither case, it would seem, is the pressure to conform decisively more “unmistakable.” See Sherbert, 374 U.S. at 404, 83 S.Ct. 1790.

We thus conclude that the Alaska laws (and the trilemma of sorts they present) do “substantially burden” Thomas and Baker’s religious rights.

Of course, “[n]ot all burdens on religion are unconstitutional.” Bowen v. Roy, 476 U.S. 693, 701, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986). Even substantial burdens on religious exercise may be justified by a showing that a regulation’s restrictions are necessary to the achievement of some compelling state interest. Whether a compelling governmental interest justifies Alaska’s anti-marital-status discrimination laws is the question to which we now turn.

The Supreme Court has provided some insight into the nature of the interests that are sufficiently “compelling” to survive strict Free Exercise Clause scrutiny. In Sherbert, for instance, the Court declared that, in order to restrict religious exercise, the State must advance “paramount interests.” Sherbert, 374 U.S. at 406, 83 S.Ct. 1790 (quoting Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945)). Likewise, in Yoder, the Court stated that it would defer only to “interests of the highest order.” Yoder, 406 U.S. at 215, 92 S.Ct. 1526. Most recently, the Court in Lukumi reaffirmed that “[t]he compelling interest standard that we apply once a law fails to meet the Smith requirements is not ‘watered] ... down’ but ‘really means what it says.’ ” Lukumi, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (quoting Smith, 494 U.S. at 888, 110 S.Ct. 1595). Director Haley contends that the laws pass constitutional muster even under strict scrutiny because “Alaska has compelling interests in eradicating discrimination in housing on the basis of marital status.” We disagree. Alaska’s purported interest in preventing marital-status discrimination is simply not sufficiently “paramount” to satisfy strict scrutiny. See generally Swanner v. Anchorage Equal Rights Comm’n, 513 U.S. 979, 115 S.Ct. 460, 130 L.Ed.2d 368 (1994) (Thomas, J., dissenting from denial of certiorari).

Only twice has the Supreme Court recognized the prevention of discrimination as an interest compelling enough to justify restrictions on constitutional rights. In 1983, in Bob Jones University v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983), the Court concluded that there is an “overriding interest” in eradicating racial discrimination. Id. at 604, 103 S.Ct. 2017. A year later, in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), the Court acknowledged a compelling government interest in preventing discrimination based upon gender. See id. at 623, 104 S.Ct. 3244. Although the Roberts Court was less than clear with respect to the precise considerations that led it to conclude that the elimination of gender discrimination constituted a compelling government interest, the Court in Bob Jones was more explicit: It based its decision upon what it deemed a “firm national policy” against race discrimination. Bob Jones, 461 U.S. at 593, 103 S.Ct. 2017. For support, the Court adverted to examples of anti-race-discrimination measures taken from all three branches of the federal government: In the judiciary, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); in Congress, the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 1971, 1975a-1975d, 2000a-2000h6), the Civil, Rights Act of 1968, Pub.L. No. 90-284, 82 Stat. 73 (codified as amended in scattered sections 18 U.S.C., 25 U.S.C., 28 U.S.C., and 42 U.S.C.), and the Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973gg-10); and in the executive branch, orders issued by Presidents Truman, Eisenhower, and Kennedy prohibiting racial discrimination in various sectors. Of course, had it opted to do so, the Bob Jones Court might easily have further elaborated, and cited as support for its “firm national policy” the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments that followed on its heels. The post-Reconstruction history of this country leaves little room for argument as to the existence of a national commitment to the elimination of race discrimination.

It is beyond cavil that there is no similar “firm national policy” against marital-status discrimination. The Supreme Court has never accorded marital status any heightened scrutiny under the Equal Protection Clause, as it has both race, see, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), and gender, see, e.g., United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Nor has any court of appeals, for that matter. See Smith v. Shalala, 5 F.3d 235, 239 (7th Cir.1993) (“Because [a] classification based on marital status does not involve a suspect class and does not impact a fundamental interest, we must examine it under the rational basis test.”); cf. United States v. Omoruyi, 7 F.3d 880, 881 (9th Cir.1993) (“Peremptory challenges based on marital status do not violate [Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)].”). And although equal protection analysis may not be determinative of the compelling interest inquiry, it assuredly is not, as Director Haley claims, “irrelevant.” The Equal Protection Clause is concerned more specifically than any other constitutional provision with the issue of discrimination; it is therefore eminently sensible to look to equal protection precedent as a proxy for the importance that attaches to the eradication of particular forms of discrimination. The fact that courts have not given unmarried couples any special consideration under the Equal Protection Clause is potent circumstantial evidence that society lacks a compelling governmental interest in the eradication of discrimination based upon marital status.

The Supreme Court’s decision in Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), is also not insignificant in determining whether a “firm national policy” against marital-status discrimination exists. There, the Court considered a substantive due process challenge to a local housing ordinance that limited dwelling occupancy to single families. The ordinance defined “family” in such a manner as to exclude from its scope a woman living with her son and two grandsons. See id. at 496 & n. 2, 97 S.Ct. 1932. The City argued to the Court that its earlier decision in Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), required it to uphold the ordinance. In Belle Terre, the Court had upheld against constitutional challenge another city’s single-family-dwelling ordinance. The Moore Court, however, easily distinguished its earlier holding:

[0]ne overriding factor sets this case apart from Belle Terre. The ordinance there affected only unrelated individuals. It expressly allowed all who were related by “blood, adoption, or marriage” to live together, and in sustaining the ordinance we were careful to note that it promoted “family needs” and “family values.”

Id. at 498, 97 S.Ct. 1932. The Supreme Court has, therefore, for all intents and purposes, recognized a substantive due process right to live with relatives (such as spouses), but has expressly declined to extend such a right to “unrelated” individuals (such as unmarried cohabitants). Hence, far from articulating any constitutional policy against marital-status discrimination, the Supreme Court has itself approved regulations containing distinctions between married and unmarried couples, bestowing upon the former rights it withholds from the latter.¹⁵

Nor do congressional enactments evince any discernible legislative policy against marital-status discrimination. Significantly, the federal statute most analogous to the Alaska laws here at issue, the Fair Housing Act, 42 U.S.C. § 3601-3631, makes no mention whatsoever of “marital status” among its catalogue of six protected categories. See, e.g., id. § 3604(a) (“[I]t shall be unlawful ... [t]o refuse to sell or rent ... a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”¹⁶). Indeed, the overwhelming majority of federal civil rights laws are silent on the issue of marital-status discrimination. See, e.g., 42 U.S.C. § 2000a(a) (prohibiting discrimination in places of public accommodation “on the ground of race, color, religion, or national origin”); 42 U.S.C. § 2000d (prohibiting discrimination in any federally funded program “on the ground of race, color, or national origin”); 42 U.S.C. § 2000e-2(a) (prohibiting discrimination in employment “because of [an] individual’s race, color, religion, sex, or national origin”). Similarly, whereas the Sentencing Guidelines authorize penalty enhancements for defendants who select their victims based upon “race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation,” they make no mention of marital status. U.S.S.G. § 3Al.l(a). To be sure, there are a handful of federal statutes that do forbid marital-status discrimination. See 5 U.S.C. § 2301(b)(2); 15 U.S.C. § 1691(a); 20 U.S.C. § 1071(a)(2). A “handful,” however, do not a “firm national policy” make.

Alaska law is likewise unavailing. As an initial matter, we think it strange to reference Alaska law (in isolation) as evidence of a compelling government interest in eradicating marital status discrimination. Alaska law certainly cannot alone suffice to demonstrate a “firm national policy.” Nor, would it seem, can a single state’s law evince— under any standard — a compelling government interest for federal constitutional purposes. The fact that Alaska has granted its citizens a “civil right” to “obtain ... housing accommodations ... without discrimination because of ... marital status,” see Alaska Stat. § 18.80.210, is irrelevant. Surely there are other states that are less enthusiastic. Under Director Haley’s reasoning, presumably Alaska would possess a compelling interest in eradicating marital-status discrimination but, say, Alabama, would not. Under such a state-specific approach to identifying compelling interests, all fields of federal constitutional law in which courts employ strict scrutiny — including free speech, free exercise, equal protection, and substantive due process — would be balkanized beyond the point of recognition. States could unilaterally “opt out” of federal constitutional rules (the Free Exercise Clause among them) simply by adopting particular legislative policies. Coherent constitutional doctrines would no longer exist; rather, we would be subjected to fifty individual sub-constitutions, each according the government a slightly different degree of authority to infringe constitutional rights.

Even were we to assume that state law could alone suffice to create a compelling governmental interest in preventing discrimination against unmarried couples, Alaska’s would not meet this constitutional test. For example, the very laws under review contain exceptions for “married-only” housing, see Alaska Stat. § 18.80.240, and for space rented in the home of the landlord, see Anchorage Mun.Code § 5.20.020. Moreover, as Justice Moore observed in his dissent in Swanner, Alaska law expressly discriminates against unmarried couples in a number of contexts:

[T]he government itself discriminates based on marital status in numerous regards, and there is no suggestion that this practice should be reexamined. Alaska law explicitly sanctions such discrimination. See, e.g., AS 13.11.015 (intestate succession does not benefit unmarried partner of decedent); AS 23.30.215(a) (workers’ compensation death benefits only for surviving spouse, child, parent, grandchild, or sibling); Alaska R. Evid. 505 (no marital communication privilege between unmarried couples); Serradell v. Hartford Accident & Indemn. Co., 843 P.2d, 639, 641 (Alaska 1992) (no insurance coverage for unmarried partner under family accident insurance policy).

Swanner, 874 P.2d at 288-89. Alaska’s “un-derenforcement” of its purported interest in eradicating marital-status discrimination is critical, because “[i]t is established in ... strict scrutiny jurisprudence that ‘a law cannot be regarded as protecting an interest “of the highest order” ... when it leaves appreciable damage to that supposedly vital interest unprohibited.’” Lukumi, 508 U.S. at 547, 113 S.Ct. 2217 (quoting Florida Star v. B.J.F., 491 U.S. 524, 541-42, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (Scalia, J. concurring in part and concurring in judgment)).

There is simply no support from any quarter for recognizing a compelling government interest in eradicating marital-status discrimination that would excuse what would otherwise be a violation of the Free Exercise Clause. Not all discrimination is created equal.

VI

Having satisfied ourselves that Thomas and Baker have successfully demonstrated hybrid-rights claims within the meaning of Smith, that the Alaska housing laws substantially burden free exercise rights, and that the laws are not justified by any compelling government interest, we must lastly determine whether there is any independent bar to granting the landlords an exemption from the laws under the Free Exercise Clause. AERC insists that there is such a bar: The Establishment Clause.¹⁷ Specifically, AERC argues that exemptions granted under the Free Exercise Clause violate the Establishment Clause “where the conduct sought to be protected by the Free Exercise Clause would result in direct injury to other identifiable persons.”

Obviously, Free Exercise Clause exemptions do not as a general matter violate the Establishment Clause. See Hobbie, 480 U.S. at 144-45, 107 S.Ct. 1046 (“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.”). If they did, then Yoder, Sherbert, Hobbie, Thomas, and Lukumi (to name just a few cases in which the Court granted exemptions under the Free Exercise Clause) would have been decided differently. Although recent Establishment Clause doctrine undoubtedly suffers from a sort of jurisprudential schizophrenia, we are not altogether without guidance in evaluating Establishment Clause challenges. Pursuant to the oft-criticized-but-still-extant three-prong standard of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), government action violates the Establishment Clause only if (1) it does not have a “secular legislative purpose,” or (2) its “principal or primary effect” is to advance or inhibit religion, or (3) it fosters an “excessive government entanglement” with religion. Id. at 612-13, 91 S.Ct. 2105. Similarly, under the so-called “endorsement” test, courts look to “whether the challenged governmental practice either has the purpose or effect of ‘endorsing’ religion.” County of Allegheny v. ACLU, 492 U.S. 573, 592, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). AERC has not so much as alleged that, by granting Thomas and Baker a constitutionally mandated exemption from the Alaska housing laws, we run the risk of “endorsing” Christianity or unnecessarily “entangling” the government in religious affairs.

The fact that the exemption might, if granted, result in harm to third parties does not materially affect the Establishment Clause calculus. Establishment Clause jurisprudence concerns itself with only one kind of “harm”: the stigmatization of religious minorities. See Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J. concurring) (“Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community.”); see also Sherbert, 374 U.S. at 409, 83 S.Ct. 1790 (inquiring whether recognition of employee’s right to unemployment compensation benefits would “serve to abridge any other person’s religious liberties”). Here, the only palpable injury suffered by an unmarried tenant turned away by a Christian landlord for religious reasons is a marginal reduction in the number of apartment units available for rent. The “harm” to the rejected lessee, if any, is economic, not religious; as such, it is beyond the pale of the Establishment Clause.

By exempting Thomas and Baker from the scope of the Alaska anti-marital-discrimination laws, we do not “establish” or otherwise endorse Christianity as an official state religion. Rather, our opinion “reflects nothing more than the governmental obligation of neutrality in the face of religious differences.” Sherbert, 374 U.S. at 409, 83 S.Ct. 1790. The Establishment Clause does not forbid what the Free Exercise Clause requires.

VII

Noble as their purpose may be, neither the Alaska statute nor the Anchorage ordinance may be enforced against landlords, like Thomas and Baker, who for religious reasons refuse to rent to unmarried couples.

The decision of the district court is

AFFIRMED.

1 . Joyce Baker’s husband, Gary Baker, has elected not to participate in this appeal or to defend the final judgment that the district court entered in his favor.

2 . See, e.g., Genesis 2:24 ("For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh.”); 1 Thessalonians 4:3-4 ("It is God’s will that you should be sanctified: that you should avoid sexual immorality; that each of you should learn to control his own body in a way that is holy and honorable, not in passionate lust like the heathen, who do not know God.”); Hebrews 13:4 ("Marriage should be honored by all, and the marriage bed kept pure, for God will judge the adulterer and all the sexually immoral.”).

3 .See, e.g., John Calvin, Calvin's Commentaries: The Epistles of Paul to the Romans and to the Thessalonians 359 (David W. Torrance & Thomas F. Torrance, eds., Ross MacKenzie trans., 1960) ("There is nothing more opposed to holiness than the impurity of fornication, which corrupts the whole man.”).

4 . The Free Exercise Clause provides: "Congress shall make no law ... prohibiting the free exercise [of religion].” U.S. Const, amend. I. The Free Exercise Clause binds state governments by virtue of its incorporation into the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

Thomas and Baker also alleged that enforcement of the state and local laws would run afoul of the Religious Freedom Restoration Act of 1993 ("RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4. The district court found in favor of the landlords on the basis of RFRA as well as the First Amendment: However, subsequent to the entry of the district court's order, the Supreme Court declared RFRA unconstitutional. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Consequently, the arguments on appeal revolve exclusively around the Free Exercise Clause.

5 . AERC having effectively conceded that the requirements for judicial notice are met, Thomas and Baker’s Motion Requesting the Court to take Judicial Notice of the enforcement proceeding is GRANTED.

6 . Unlike the majority of other courts to address the issue, see, e.g., Ryan v. United States Dep’t of Justice, 950 F.2d 458 (7th Cir.1991); Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir.1991), this court originally construed Smith as applying only to neutral, generally applicable criminal laws. See American Friends Serv. Comm. v. Thornburgh, 961 F.2d 1405, 1407 (9th Cir.1991). Judge Fernandez expressed his disagreement with what he called this court's "crabbed view” of Smith and insisted that Smith's holding should be understood as applying to all neutral, generally applicable laws, whether civil or criminal. See Goehring v. Brophy, 94 F.3d 1294, 1306 (9th Cir.1996) (Fernandez, J., concurring). Judge Fernandez’s view appears to have prevailed in practice. Last Term, in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court concluded that Congress had exceeded its authority under § 5 of the Fourteenth Amendment when it passed the Religious Freedom Restoration Act of 1993 ("RFRA”), 42 U.S.C. § 2000bb-2000bb-4. Boeme involved a local zoning ordinance — a civil regulation — that the Fifth Circuit had found invalid under RFRA. The Supreme Court held that RFRA was, in essence, an impermissible attempt to override legislatively its decision in Smith. Obviously, in order to invalidate RFRA on the basis that it did, the Court had to conclude that RFRA was in conflict with Smith. And in order for such a conflict to exist (at least in the context of the case before it), the Court had to conclude that Smith, like RFRA, applied to civil statutes and ordinances as well as criminal.

The civil-criminal distinction is not particularly relevant to the analysis of the Alaska statute’s constitutionality because that statute makes violation of its terms a misdemeanor, punishable by fine or imprisonment. See Alaska Stat. . The precise nature of the Anchorage ordinance is less certain. Section 5.30.070 does make it a misdemeanor to "willfully resist[ ], preventf ], impede! ] or interfere[ ] with the equal rights commission or any of its authorized representatives.” but it is not clear that the ordinance renders the very act of refusing to rent on the basis of marital status criminal. Thus, to the extent that the Anchorage ordinance is a purely civil statute, the Supreme Court’s implicit determination in Boerne that Smith reaches civil, as well as criminal, laws is significant, and controls our analysis.

7 . When we have discussed hybrid rights under Smith, we have sent mixed signals. See American Friends Serv. Comm. Corp. v. Thornburgh, 961 F.2d 1405, 1407 (9th Cir.1992). In American Friends, we initially characterized a hybrid claim as one "which contains not only a free exercise challenge to government action, but also another substantive constitutional claim as well.” Id. at 1408 (emphasis added). Our suggestion that a hybrid-rights claim need only "contain[ ]" a non-free-exercise "challenge” would seem to imply that another right need only be pleaded alongside a free exercise claim. Other portions of the American Friends opinion, however, suggest an assumption that perhaps the existence of an independently viable companion right is a necessary prerequisite to a hybrid claim. For instance, in so concluding, the American Friends court observed that the challenge before it was not "based on any cognizable constitutional claim in addition to its free exercise claim; its claim is therefore not 'hybrid.' ” Id. at 1409 (emphasis added).

8 . Proponents and critics of the Smith decision alike have questioned the Court's attempted distinction of the so-called hybrid cases and the hybrid-rights doctrine to which the distinction gave rise. See William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L.Rev. 308, 309 (1991) ("Its use of precedent borders on fiction.”); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L.Rev. 1109, 1122 (1990) ("[A] legal realist would tell us ... the Smith Court's notion of 'hybrid' claims was not intended to be taken seriously.”). One commentator speculated regarding Smith's hybrid-rights analysis thusly: "Justice Scalia had only five votes. He apparently believed he couldn’t overrule anything, and so he didn’t. He distinguished everything away instead.” Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act, 62 Fordham L.Rev. 883, 902 (1994). As an intermediate court of appeals charged with resolving a specific controversy, we lack the luxury that the ivory tower provides. Our job is not to critique or to deconstruct; ours is to make sense of a confusing doctrinal situation — to make the pieces fit.

9 . The Takings Clause provides: "[N]or shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. The Takings Clause applies to the States through the Fourteenth Amendment. See Chicago, Baltimore & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897).

10 . The Court in Yee did not squarely address the regulatory-takings issue because it was not “fairly included in the question on which [the Court] granted certiorari." Yee, 503 U.S. at 533, 112 S.Ct. 1522.

11 . The Free Speech Clause provides: "Congress shall make no law ... abridging the freedom of speech....” The Free Speech Clause applies to the States through the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).

12 . Even were we to assume that the Alaska laws did primarily target commercial speech, we would not review them under the deferential Central Hudson test normally applied to commercial-speech restrictions. See Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343 (subjecting commercial speech restrictions to a form of intermediate scrutiny). The laws' plain language "does not limit the scope of regulated activity to purely commercial speech.” S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1143 (9th Cir.1998). Rather, fully protected religious speech is also burdened. Hence, the laws are "overbroad” and, as such, subject to strict First Amendment scrutiny. See id. at 1142-44 (invalidating a law as over-broad because it neither limited its scope to “speech which does no more than propose a commercial transaction” nor provided an exception for speech that contained both commercial and expressive elements); see also Riley v. National Fed’n of the Blind, 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) ("[E]ven assuming, without deciding, that such speech in the abstract is indeed merely 'commercial,' we do not believe that the speech retains its commercial character when it is inextricably intertwined with otherwise fully protected speech.”).

13 . The Supreme Court has, however, recognized that some purely financial burdens might be so severe as to rise to the level of constitutionally “substantial.” See Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 392, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990).

14 . That is not to say that there might not be distinct sunk costs involved in cashing out.

15 . Of course, the Supreme Court has not maintained distinctions between married and unmarried persons in all contexts. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (holding unconstitutional a law that permitted married couples but prohibited unmarried couples from purchasing contraceptives). However, in the housing context — the most relevant context for our purposes — the Supreme Court has drawn and enforced such lines.

16 . "Familial status" is defined under the Act as relating to the domicile of children with adults.

17 . The Establishment Clause provides: "Congress shall make no law respecting an establishment of religion....” U.S. Const, amend. I. Although the Establishment Clause was originally understood as a guarantee to state governments that Congress would leave church-state relations to the individual States, the Supreme Court has long subscribed to the view that the Establishment Clause applies against the States through the Fourteenth Amendment. See Everson v. Board of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947).