Full opinion text
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. 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 text and in the commentaries of respected Christian theologians is not disputed by the parties. 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. 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). 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. 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. 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. 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. 1 Thomas and Baker contend that the Takings Clause of the Fifth Amendment, “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). 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. 2 With respect to Thomas and Baker’s free speech challenge, 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). a 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.” b 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