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

The defendants who are brothers own a four-unit apartment house in the Turners Falls section of the town of Montague. Paul and his wife jointly own two other apartment buildings in Turners Falls which have a total of twenty-one residential units. In August 1989 Paul acting for himself and his brother declined to consider leasing an apartment in the four-unit building to Mark Lattanzi and Cynthia Tarail an unmarried couple because they would be cohabiting there. *fn2

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

General Laws c. 151B SEC 4 (6) as in effect in August 1989 provided in part that it shall be an unlawful practice for the owner of a multiple dwelling "to refuse to rent or lease . . . or otherwise to deny to or withhold from any person or group of persons such accommodations because of the race religious creed color national origin sex age ancestry or marital status of such person or persons" (emphasis supplied). G. L. c. 151B SEC 4 (6)(1988 ed.). *fn3 We shall conclude that the defendants violated the provisions of this statute and that therefore we must consider the defendants' argument that enforcement of the statute against them violates their rights under the State and Federal Constitutions.

In September 1989 Lattanzi and Tarail filed a housing discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) claiming that because of their marital status they were denied available housing in violation of G. L. c. 151B SEC 4 (6). After the MCAD had found probable cause Lattanzi and Tarail filed a notice seeking a judicial determination of the matter in the Superior Court pursuant to G. L. c. 151B SEC. 5 (1992 ed.). On October 4 1990 the Counsel General as was his obligation under G. L. c. 151B SEC. 5 commenced this action on behalf of the complainants in Superior Court in Franklin County.

A Court of the Superior Court decided the case on cross-motions for summary judgment. He allowed the defendants' motion for summary judgment and denied the Counsel General's. The motion Court correctly ruled that the defendants had violated G. L. c. 151B. He then ruled that on the summary judgment record application of the statute to the defendants in this case would be unconstitutional. We granted the Counsel General's application for direct appellate review. We conclude that on the record before us neither party was entitled to summary judgment and that the summary judgment for the defendants should be vacated.

1. The defendants argue that they are not discriminating on the basis of marital status but rather on the basis of conduct and that consequently they are not discriminating in a way forbidden by G. L. c. 151B SEC 4 (6). There is no merit to this argument. This court's opinion in Worcester Hous. Auth. v. Massachusetts Comm'n Against Discrimination 406 Mass. 244 547 N.E.2d 43 (1989) makes clear that the prohibition in G. L. c. 151B SEC 4 (6) against discrimination in leasing because of marital status applies to discrimination against an unmarried woman and an unmarried man seeking to rent an apartment for their joint occupancy. Moreover analysis of the defendants' concerns shows that it is marital status and not sexual intercourse that lies at the heart of the defendants' objection. If married couple A wanted to cohabit in an apartment owned by the defendants they would have no objection. If unmarried couple B wanted to cohabit in an apartment owned by the defendants they would have great objection. The controlling and discriminating difference between the two situations is the difference in the marital status of the two couples.

2. We consider first the protections provided by art. 46 SEC 1 of the Amendments to the State Constitution. Article 46 SEC 1 ("No law shall be passed prohibiting the free exercise of religion") parallels the First Amendment to the Constitution of the United States ("Congress shall make no law . . . prohibiting the free exercise of religion"). See Commonwealth v. Nissenbaum 404 Mass. 575 578 536 N.E.2d 592 (1989).

Despite the similarity of the two constitutional provisions this court should reach its own conclusions on the scope of the protections of art. 46 SEC. 1 and should not necessarily follow the reasoning adopted by the Supreme Court of the United States under the First Amendment. Indeed after the release of our Nissenbaum opinion the Supreme Court substantially altered its standard for determining whether conduct was protected under the free exercise of religion clause by its decision in Employment Div. Dep't of Human Resources of Or. v. Smith 494 U.S. 872 108 L. Ed. 2d 876 110 S. Ct. 1595 (1990) a much criticized opinion that weakened First Amendment protections for religious conduct. See The Supreme Court 1992 Term -- Comment The Resurrection of Religious Freedom? 107 Harv. L. Rev. 118 & 118 n.3 (1993). *fn4

In interpreting art. 46 SEC 1 we prefer to adhere to the standards of earlier First Amendment jurisprudence such as we applied in Alberts v. Devine 395 Mass. 59 74-75 479 N.E.2d 113 cert. denied sub nom. Carroll v. Alberts 474 U.S. 1013 88 L. Ed. 2d 475 106 S. Ct. 546 (1985) and Counsel Gen. v. Bailey 386 Mass. 367 375 436 N.E.2d 139 cert. denied sub nom. Bailey v. Bellotti 459 U.S. 970 74 L. Ed. 2d 282 103 S. Ct. 301 (1982). In each opinion we used the balancing test that the Supreme Court had established under the free exercise of religion clause in Wisconsin v. Yoder 406 U.S. 205 215-229 32 L. Ed. 2d 15 92 S. Ct. 1526 (1972) Sherbert v. Verner 371 U.S. 938 406-409 9 L. Ed. 2d 273 83 S. Ct. 321 (1963) and subsequent opinions. See Alberts v. Devine supra at 73-74; Counsel Gen. v. Bailey supra at 375. See also Employment Div. Dep't of Human Resources of Or. v. Smith supra at 894-895 (O'Connor J. concurring in the judgment). By applying the balancing test as we do we extend protections to the defendants that are at least as great as those of the First Amendment. No further discussion of rights under the First Amendment is therefore necessary. *fn5

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

Because it is unchallenged on the summary judgment record we must accept that the defendants sincerely believe that their behavior must in all respects conform to their religious beliefs and that in their view the operation of rental housing is not independent of those beliefs. Conduct motivated by sincerely held religious convictions will be recognized as the exercise of religion. Supreme Court free exercise of religion cases have accepted either implicitly or without searching inquiry claimants' assertions regarding what they sincerely believe to be the exercise of their religion even when the conduct in dispute is not commonly viewed as a religious ritual. See e.g. Hobbie v. Unemployment Appeals Comm'n of Fla. 480 U.S. 136 137 94 L. Ed. 2d 190 107 S. Ct. 1046 (1987) (refusal to work Sabbath hours); United States v. Lee 455 U.S. 252 257 71 L. Ed. 2d 127 102 S. Ct. 1051 (1982) (abstention from participating in government social security program); Thomas v. Review Bd. of the Ind. Employment . Div. 450 U.S. 707 715 67 L. Ed. 2d 624 101 S. Ct. 1425 (1981) (refusal to work in weapons production). See also Tribe supra at SEC 14-12 at 1243-1244. Our opinions concerning the free exercise of religion have also recognized action based on religious beliefs as the exercise of religion. See e.g. Fedele v. School Comm. of Westwood 412 Mass. 110 116 587 N.E.2d 757 (1992) (right to maintain religion includes freedom to believe and "freedom to act on that belief"); Murphy v. I.S.K.Con. of New England Inc. 409 Mass. 842 851 571 N.E.2d 340 cert. denied 116 L. Ed. 2d 152 112 S. Ct. 191 (1991) ("Both this court and the United States Supreme Court have recognized that the concept of free exercise of religion involves both belief and activity"; teaching of religious beliefs is protected activity); Counsel Gen. v. Bailey supra at 375-376 (threshold question satisfied because operation of school was activity "motivated by a sincerely held religious belief").

The next question is whether the prohibition against discrimination based on marital status substantially burdens the defendants' exercise of their religion. The extent of any burden will become important if and when it comes time to balance any such burden against the interests of the Commonwealth in eliminating marital status discrimination in housing. We first consider whether there is any burden at all on the defendants' free exercise of religion. We have said that the government's failure to provide a child with subsidized transportation to a private sectarian school does not burden the child's free exercise of religion. Fedele v. School Comm. of Westwood supra at 116. *fn6 Here the situation differs because the government has placed a burden on the defendants that makes their exercise of religion more difficult and more costly. The statute affirmatively obliges the defendants to enter into a contract contrary to their religious beliefs and provides significant sanctions for its violation. *fn7 Moreover both their nonconformity to the law and any related publicity may stigmatize the defendants in the eyes of many and thus burden the exercise of the defendants' religion. Four State appellate courts on similar but not identical facts have dealt recently with the question of a substantial burden on the free exercise of religion under their respective State Constitutions and all four concluded that a marital status antidiscrimination law imposed such a burden. See Swanner v. Anchorage Equal Rights Comm'n 868 P.2d 301 308 reh'g granted withdrawn from bound volume modified and reissued per curiam P.2d (Alaska May 13 1994); Smith v. Commission of Fair Employment & Hous. 25 Cal. App. 4th 251 modified Cal. App. 4th (June 23 1994); Donahue v. Fair Employment & Hous. Comm'n 1 Cal. App. 4th 387 2 Cal. Rptr. 2d 32 42 (Ct. App. 1991) review granted 5 Cal. Rptr. 2d 781 (1992) review dismissed as being improvidently granted 13 Cal. App. 4th 350 (1993) (not published in the official reporter); State by Cooper v. French 460 N.W.2d 2 10 (Minn. 1990);

id. at 15 (Popovich C.J. dissenting).

The fact that the defendants' free exercise of religion claim arises in a commercial context although relevant when engaging in a balancing of interests does not mean that their constitutional rights are not substantially burdened. This is not a case in which a claimant is seeking a financial advantage by asserting religious beliefs. See cases cited in note 6 above. The defendants' right to free exercise of religion is substantially burdened by the operation of G. L. c. 151B SEC. 4 (6).

We must therefore consider whether the record establishes that the Commonwealth has or does not have an important governmental interest that is sufficiently compelling that the granting of an exemption to people in the position of the defendants would unduly hinder that goal. The general objective of eliminating discrimination of all kinds referred to in the relevant version of SEC. 4 (6) ("race religious creed color national origin sex age ancestry or marital status") cannot alone provide a compelling State interest that justifies the application of that section in disregard of the defendants' right to free exercise of their religion. The analysis must be more focused. At the least the Commonwealth must demonstrate that it has a compelling interest in the elimination of discrimination in housing against an unmarried man and an unmarried woman who have a sexual relationship and wish to rent accommodations to which SEC. 4 (6) applies. *fn8

Earlier in this opinion we pointed out that four other appellate State courts had recognized as we do in this opinion that a marital status antidiscrimination law such as ours substantially burdens the free exercise of religion by a landlord who does not believe in leasing premises to unmarried cohabitants. Judicial unanimity disappeared however when the role of a compelling State interest in the balancing of interests was considered. None of these opinions majority or dissenting provides reasoning that is particularly instructive in deciding the issue that we are now discussing. *fn9

As the motion Court correctly ascertained marital status discrimination is not as intense a State concern as is discrimination based on certain other classifications. Article 1 of the Massachusetts Declaration of Rights as amended by art. 106 of the Amendments to the Massachusetts Constitution states that "equality under the law shall not be denied or abridged because of sex race color creed or national origin." Because there is no constitutionally based prohibition against discriminating on the basis of marital status marital status discrimination is of a lower order than those discriminations to which art. 1 refers. Moreover in various ways by statute *fn10 and judicial decision *fn11 the law has not promoted cohabitation and has granted a married spouse rights not granted to a man or woman cohabiting with a member of the opposite sex.

The defendants argue further that G. L. c. 272 SEC. 18 (1992 ed.) presents a public policy consideration that weighs against the interest stated in G. L. c. 151B against discrimination based on marital status. Section 18 makes fornication a crime. This statute is of doubtful constitutionality at least as applied to the private consensual conduct of persons over the age of consent. See Commonwealth v. Balthazar 366 Mass. 298 302 318 N.E.2d 478 (1974). It remains however as a criminal statute of the Commonwealth which suggests some diminution in the strength of the Commonwealth's interest in the elimination of housing discrimination based on marital status.

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

We have no indication beyond the facts of this case whether the rental housing policies of people such as the defendants can be accommodated at least in the Turners Falls (Montague) area without significantly impeding the availability of rental housing for people who are cohabiting or wish to cohabit. Market forces often tend to discourage owners from restricting the class of people to whom they would rent. On the other hand discrimination of the sort challenged here may present a significant housing problem if a large percentage of units are unavailable to cohabitants.

We reject any argument that a general rule must be applied because of problems in determining whether religious beliefs sincerely underlie a landlord's refusal to lease. The sincerity of such action assertedly founded on religious beliefs is open to challenge in a free exercise of religion case. See United States v. Ballard 322 U.S. 78 88 L. Ed. 1148 64 S. Ct. 882 (1944). We would moreover not readily subscribe to a rule that justified the denial of constitutional rights simply because the protection of those rights required special effort. For similar reasons in the absence of proof we would not find a compelling State interest in this case simply because other individuals might assert the right to be exempt from this or some other law on religious grounds and in doing so would make enforcement of that law difficult. Yet the practical problems of administering a law with the exemption that the defendants seek may be shown to be such as to make the operation of such an exemption impractical. Finally the compulsion of the State's interest appears somewhat weakened because the statute permits discrimination by a religious organization in certain respects (see note 8 above) if to do so promotes the principles for which the organization was established.

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

The Commonwealth has the task of establishing that it has a compelling interest in eliminating housing discrimination against cohabiting couples that is strong enough to justify the burden placed on the defendants' exercise of their religion. A task of this sort has been carried out successfully in some cases and not in others. Compare Bob Jones Univ. v. United States 461 U.S. 574 592-593 604 76 L. Ed. 2d 157 103 S. Ct. 2017 (1983) (eradication of racial discrimination in education is compelling State interest superseding any free exercise rights of petitioners); United States v. Lee 455 U.S. 252 258-259 71 L. Ed. 2d 127 102 S. Ct. 1051 & nn.7-9 (1982) (overriding interest in operation of national social security system is compelling) with Thomas v. Review Bd. of the Ind. Employment Sec. Div. 450 U.S. 707 719 67 L. Ed. 2d 624 101 S. Ct. 1425 (1981) (no compelling State interest established); Wisconsin v. Yoder 406 U.S. 205 224-229 32 L. Ed. 2d 15 92 S. Ct. 1526 (1972) (same); and Sherbert v. Verner 374 U.S. 398 407 10 L. Ed. 2d 965 83 S. Ct. 1790 (1963) (same). Cf. Guiney v. Police Comm'r of Boston 411 Mass. 328 332-334 582 N.E.2d 523 (1991) (generalized sense that there is a drug problem does not alone justify random drug testing of police officers).

The summary judgment record does not establish that there is no disputed material fact bearing on the compelling State interest question. In that circumstance summary judgment is inappropriate. Mass. R. Civ. P. 56 (c) 365 Mass. 824 (1974). Doe v. New Bedford Hous. Auth. 417 Mass. 273 279 630 N.E.2d 248 (1994). Flesner v. Technical Communications Corp. 410 Mass. 805 808-809 575 N.E.2d 1107 (1991). Cruz v. Commissioner of Pub. Welfare 395 Mass. 107 115-116 478 N.E.2d 1262 (1985). There are factual circumstances that bear on the question both as to the existence of a general State interest in the elimination of discrimination in housing based on marital status and as to the existence of a particularized State interest in the Turners Falls area. Uniformity of enforcement of the statute may be shown to be the least restrictive means for the practical and efficient operation of the antidiscrimination law. It should be remembered that the task is to balance the State's interests against the nature of the burden on the defendants and that we are concerned here with the business of leasing apartments not with participation in a formal religious activity.

Now that we have defined the nature of the relevant State constitutional rights and the applicable standards we should not announce that the Commonwealth cannot possibly make its case but rather we should give it a chance to demonstrate its compelling interest in the application of the statute. In short on the summary judgment record we conclude that the uncontested material facts disclose no basis for ruling that the Commonwealth can or cannot meet its burden of establishing that it has a compelling interest that can be fulfilled only by denying the defendants an exemption from G. L. c. 151B SEC. 4 (6). Therefore summary judgment should not have been granted to the defendants and neither side is entitled to summary judgment.

3. We now turn to art. 2 of the Massachusetts Declaration of Rights. *fn12 That article unaltered since the people adopted it in 1780 has no precise parallel in the Constitution of the United States although certain of art. 2's principles are reflected in the First Amendment to the United States Constitution. Article 2 is important to this case only if it grants greater protection to the defendants than do either the First Amendment or the cognate free exercise of religion provision appearing in art. 46 SEC. 1 of the Amendments to the Constitution of the Commonwealth.

"The Constitution of the Commonwealth . . . guarantees to all our people absolute freedom as to religious belief and liberty unrestrained as to religious practices provided that the public peace is not disturbed and others are not obstructed in their religious worship. Opinion of the Justices, 214 Mass. 599, 601, 102 N.E. 464 (1913). Article 2 of the Declaration of Rights protects religious beliefs by providing that no subject shall be hurt molested or restrained in his person liberty or estate . . . for his religious profession or sentiments." As a practical matter this protection of religious beliefs is substantially absolute under art. 2 as well as under art. 46 1 of the Amendments and the First Amendment. *fn13 This aspect of art. 2 is not involved in this case because we are not dealing with any restraint on the defendants' religious professions or sentiments.

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

Our cases concerning art. 2 have not defined the scope of the concept of worshiping God that is if neither art. 2 exception applies that conduct which is constitutionally protected absolutely. They do however provide some guidance. See Society of Jesus of New England v. Boston Landmarks Comm'n 409 Mass. 38 42 564 N.E.2d 571 (1990); Commonwealth v. Nissenbaum 404 Mass. 575 578-579 536 N.E.2d 592 (1989). *fn14

Court need not pass on the application of art. 2 in this case because whatever protections it offers to the defendants are available to them under art. 46 SEC. 1 which we have already discussed. *fn15 The three Justices who join this opinion reach this conclusion because even if the defendants' selective leasing of their commercial property involves "worshipping GOD in the manner and season most agreeable to the dictates of [their] own conscience that conduct in violation of a State statute would disturb the peace (see Commonwealth v. Nissenbaum, supra at 582-583; id. at 592-593 [Liacos, J., dissenting]), and, therefore, there would have to be a balancing of competing interests to decide whether G. L. c. 151B, SEC. 4 (6), is properly enforceable against the defendants. This balancing process is similar to the task that the three Justices who join this opinion and the Chief Justice in partial concurrence agree must be conducted under art. 46, SEC. 1, on remand on this case. No balancing of competing interests under art. 2 is required in this case because the competing interests standard under art. 2 is no more favorable to the defendants than the requirement under art. 46, SEC. 1, that the Commonwealth demonstrate a compelling State interest in justification of the application of the statute to the defendants.

4. The judgment for the defendants is vacated and the case is remanded to the Superior Court for further consideration of the question whether art. 46 SEC. 1 bars application of G. L. c. 151B SEC. 4 to the defendants in the circumstances of this case.

So ordered.

Concurring: LIACOS

CONCUR: LIACOS C.J. (concurring). I agree with the result reached by Court today. I agree also with the court's analysis of the protections provided the people of this Commonwealth under art. 46 SEC. 1 of the Amendments to the Massachusetts Constitution including Court's statement that under art. 46 we prefer to adhere to the standards of earlier First Amendment jurisprudence, such as we applied in Alberts v. Devine, 395 Mass. 59, 74-75, 479 N.E.2d 113, cert. denied sub nom. Carroll v. Alberts, 474 U.S. 1013, 88 L. Ed. 2d 475, 106 S. Ct. 546 (1985), and Counsel Gen. v. Bailey, 386 Mass. 367, 375, 436 N.E.2d 139, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970, 74 L. Ed. 2d 282, 103 S. Ct. 301 (1982). Ante at __. Our Constitution precedes and was in large measure the model for the Federal Constitution. In light of this court's reaffirmation today of its desire to develop further our own constitutional jurisprudence I cannot but wonder why Court and the dissenting Justices decline to examine more thoroughly the protections afforded by art. 2 of the Declaration of Rights of the Massachusetts Constitution and are unwilling to decide whether art. 2 reaches the activities of the defendants. Thus I write separately to express my view on the scope of the protection afforded by art. 2.

In declining to address whether art. 2 reaches the conduct of the defendants Court reasons that "article 2 is important to this case only if it grants greater protection to the defendants than do either the First Amendment or the cognate free exercise of religion provision appearing in art. 46 . . . ." Ante at __. This reasoning puzzles me as it is unclear to me why art. 46 should be the starting point in an analysis of our Constitution's protections for religious freedom. As Court notes conduct falling within the scope of art. 2 and which does "not disturb the public peace or obstruct others in their religious worship" is protected absolutely. Opinion of the Justices 214 Mass. 599 601 102 N.E. 464 (1913). Nicholls v. Mayor & Sch. Comm. of Lynn 297 Mass. 65 70-71 7 N.E.2d 577 (1937). Society of Jesus of New England v. Boston Landmarks Comm'n 409 Mass. 38 41-42 564 N.E.2d 571 (1990). Accordingly if the conduct of the defendants falls within art. 2's scope and neither disturbs the public peace nor disturbs the religious worship of others then the conduct would be protected absolutely.

Article 2 of the Declaration of Rights provides that "no subject shall be hurt molested or restrained in his person liberty or estate for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience or for his religious profession or sentiments; provided he doth not disturb the public peace or obstruct others in their religious worship" (emphasis supplied). *fn1 The language of art. 2 does not limit the mode or manner of worship to commonly recognized forms of worship. *fn2 On the contrary the language in the manner and season most agreeable to the dictates of [an individual's] conscience unambiguously indicates that a citizen is free to decide for himself or herself the method by which he or she will worship. *fn3

Our case law supports the notion that this court should not attempt to decide whether a form of worship chosen by an individual based on his sincere religious beliefs is deserving of art. 2 protection. Under art 2. all citizens are guaranteed "liberty unrestrained as to religious practices subject only to the conditions that the public peace must not be disturbed nor others obstructed in their religious worship or the general obligations of good citizenship violated." Opinion of the Justices 214 Mass. 599 601 102 N.E. 464 (1913). Nicholls v. Mayor & Sch. Comm. of Lynn 297 Mass. 65 70 7 N.E.2d 577 (1937). Society of Jesus of New England v. Boston Landmarks Comm'n 409 Mass. 38 41 564 N.E.2d 571 (1990). Commonwealth v. Nissenbaum 404 Mass. 575 591 536 N.E.2d 592 (1989) (Liacos J. dissenting). See Nissenbaum supra at 582 n.5 ("Any person may worship in the manner he thinks most agreeable to the Deity") quoting The Popular Sources of Political Authority Documents of the Massachusetts Constitution of 1780 at 32-33 (O. and M. Handlin eds. 1966); Society of Jesus supra at 41 ("The framers and ratifiers understood the right freely to exercise one's religion to be an uncompromising principle"); id. At 41-42 ("great object . . . was 'to secure and establish the most perfect and entire freedom of opinion as to tenets of religion and as to the choice of the mode of worship'") quoting Adams v. Howe 14 Mass. 340 346 (1817).

The decision by an individual as to what form of religious worship constitutes an appropriate vehicle by which to pay homage to a chosen object of that worship can hardly be characterized as anything but a religious belief sentiment for it is religious belief which informs and serves as the foundation for that choice. Accordingly if this or any court purports to consider whether a practice is truly a form of worship then in essence Court is inquiring into the validity of a religious belief. No civil court however may make such an inquiry. Murphy v. I.S.K.Con. of New England Inc. 409 Mass. 842 854 571 N.E.2d 340 cert. denied 116 L. Ed. 2d 152 112 S. Ct. 191 (1991) quoting Madsen v. Erwin 395 Mass. 715 722 481 N.E.2d 1160 (1985). Lewis v. Area II Homecare for Senior Citizens Inc. 397 Mass. 761 772 493 N.E.2d 867 (1986). Alberts v. Devine 395 Mass. 59 72 479 N.E.2d 113 (1985) and cases cited. See Norwood Hosp. v. Munoz 409 Mass. 116 124-125 n.5 564 N.E.2d 1017 (1991). *fn4

Court states that this case does not involve "any restraint on the defendants' religious professions or sentiments" and therefore Court concludes art. 2's protection of religious profession or sentiments is not implicated in this case. Ante at __. Court gives no reason for this conclusion. Thus Court continues if art. 2 is applicable at all only the provision of art. 2 which protects worshipping is called into play in this case. I cannot agree. Contrary to Court's conclusion which implicitly defines "religious profession or sentiments I believe that, in the circumstances of this case, the protection in art. 2 for religious profession or sentiments" is relevant here. *fn5 While the defendants have admitted that they in fact have refused in the past to rent to unmarried cohabiting couples and would have refused to rent to Lattanzi and Tarail assuming that they would have cohabited the event immediately precipitating this action was one telephone call made by Tarail. *fn6 The content of the conversation which took place was disputed but the Court found that Paul Desilets imparted to Tarail that he would not rent to unmarried cohabiters because to do so violated his religion. The conversation then ended without Tarail pressing the matter further.

As I see it then the action of the defendant on which this suit was founded was his profession of his religious belief that cohabitation of unmarried persons is a sin. *fn7 Therefore the facts of this case also implicate the protection afforded to the defendants' religious profession or sentiments. I would not dispose of this issue as Court does without analysis ante at __ by reciting that the protection in art. 2 for religious profession or sentiments is not involved in this case.

In my opinion art. 2 covers the actions of the defendants. As a result their conduct is deserving of art. 2 protection unless it disturbs the public peace. See Commonwealth v. Orlando 371 Mass. 732 734-735 359 N.E.2d 310 (1977) (disturbance of public peace occurs when conduct "tends to annoy all good citizens and does in fact annoy anyone present not favoring it"); Nissenbaum supra at 592 (Liacos J. dissenting) (conduct disturbs public peace when it is unreasonably disruptive and second did in fact infringe someone's right to be undisturbed). Although the Court found that there was no disturbance of the public peace it does not seem to me that the issue was addressed completely by the parties below. I would remand this case for further proceedings and a determination whether the defendants' actions disturbed the public peace. See Nissenbaum supra at 591-593 (Liacos J. dissenting). *fn8 If the Court determines that the defendants' conduct did disturb the public peace *fn9 the Court should then balance the State's interest in maintaining the public peace which was disturbed against the defendants' rights under art. 2. Id. at 581-583 (court notes that balancing of competing interests is required under art. 2 when disturbance of public peace is found and court then notes that it performed such a balancing in that case).

Dissenting: The Hon. Justice O'CONNOR (dissenting with whom Nolan and Lynch JJ. join).

In keeping with their sincerely held religious beliefs the defendants consider an unmarried couple's living together in a sexual relationship to be an offense against God. Also in keeping with their sincerely held religious beliefs the defendants consider enabling or assisting another in the commission of an offense against God to be itself an offense against Him. Responding to those religious convictions and out of respect for the will of God the defendants refused to rent an apartment to an unmarried couple living in a sexual relationship (cohabiting couple). Court now concludes that an evidentiary hearing -- a trial -- is required before a determination can be made concerning whether the defendants may lawfully be forced to choose between violating their religiously informed consciences or withdrawing from their commercial endeavors. I disagree. No combination of facts that might be found after a trial would legally justify the imposition of such a choice. I would affirm the summary judgment for the defendants.

I agree that as applied to this case (1) art. 46 SEC. 1 of the Amendments to the State Constitution provides at least as much protection to the free exercise of religion as does art. 2 of the Massachusetts Declaration of Rights and the First Amendment to the United States Constitution; (2) Court should reach its own conclusions on the scope of the protections of art. 46 SEC. 1; and (3) in interpreting art. 46 SEC. 1 Court should use the balancing test that the Supreme Court established in Wisconsin v. Yoder 406 U.S. 205 215-229 32 L. Ed. 2d 15 92 S. Ct. 1526 (1972) Sherbert v. Verner 371 U.S. 938 406-409 9 L. Ed. 2d 273 83 S. Ct. 321 (1963) and subsequent opinions.

Because the defendants' right to the free exercise of their religion is substantially burdened by the operation of G. L. c. 151B SEC 4 (6) ante at a matter about which none of the Justices seems to disagree the Commonwealth would be required at trial to prove that "it has an interest sufficiently compelling to justify that burden." Ante at __. In reviewing the entry of summary judgment for the defendants then the question before Court is whether the defendants have demonstrated "by reference to material described in Mass. R. Civ. P. 56 (c) unmet by countervailing materials that the [Commonwealth which will have the burden of proof at trial] has no reasonable expectation of proving an essential element of [its] case." Kourouvacilis v. General Motors Corp. 410 Mass. 706 716 575 N.E.2d 734 (1991). In my view the defendants have succeeded in that regard. It is clear from the summary judgment materials that the Commonwealth can have no reasonable expectation of sustaining its burden of proving at trial an essential element of its case which is that the Commonwealth has an interest in ensuring the availability of rental housing for unmarried couples with a sexual relationship -- a relationship prohibited by G. L. c. 272 SEC. 18 (1992 ed.) -- that outweighs the defendants' interest in conforming their conduct to the will of God without State-imposed penalty.

"Marital status discrimination is not as intense a State concern as is discrimination based on certain other classifications." Ante at __. In contrast the right to free exercise of religion is a fundamental right. Thus the Commonwealth's interest in accommodating cohabitation cannot possibly outweigh the defendants' interest in conforming their conduct to their religious conviction without penalty regardless of whether after a trial a fact finder might be satisfied that "the rental housing policies of people such as the defendants cannot be accommodated at least in the Turners Falls (Montague) area without significantly impeding the availability of rental housing for people who are cohabiting or wish to cohabit." Ante at __. Even if "discrimination of the sort challenged here [were to] present a significant housing problem if a large percentage of units [were to be] unavailable to cohabitants ante at __, that is, even if discrimination of the sort challenged here were to make it difficult or impossible for unmarried couples to cohabit in Turners Falls or elsewhere, neither Court nor the Legislature can constitutionally give preference or priority to a so-called right" of cohabitation over the moral and other fundamental values recognized in and promoted by the Massachusetts Constitution's clearly articulated guarantees of the free exercise of religion.

Court states that "there are factual circumstances that bear on the question [balancing of the State's and the defendants' interests] both as to the existence of a general State interest in the elimination of discrimination in housing based on marital status and as to the existence of a particularized State interest in the Turners Falls area. Uniformity of enforcement of the statute may be shown to be the least restrictive means for the practical and efficient operation of the antidiscrimination law." Ante at.__ Court gives no hint of what circumstances could be shown that would permit a reasonable inference that the Commonwealth's interest in eliminating discrimination in housing based on marital status can only be served by punishing landlords for holding fast to the commitments dictated by their religious beliefs. I can envision no such circumstances. This case is not even remotely similar to Bob Jones Univ. v. United States 461 U.S. 574 76 L. Ed. 2d 157 103 S. Ct. 2017 (1983) (eradication of racial discrimination in education is compelling State interest superseding any free exercise right of petitioners) or United States v. Lee 455 U.S. 252 71 L. Ed. 2d 127 102 S. Ct. 1051 (1982) (overriding interest in operation of national social security system is compelling) cited by Justice Wilkins. Ante at __.

Court can safely say and should hold that it is clear from the submissions in this case that the Commonwealth has no reasonable expectation of proving an essential element of its case. Court should affirm summary judgment for the defendants. If the Massachusetts Constitution is to be effectively amended by giving rights of cohabitation preferred status over an individual's right to live according to his or her religiously-informed conscience a result I do not recommend that amendment should be achieved by lawful procedures for constitutional amendment not by judicial fiat.