State v. Arlene's Flowers, Inc. , 441 P.3d 1203 ( 2019 )

IN CLERKS OFFICE
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Susan L. Carlson
Suprenne Court Clarfc
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 91615-2
EN BANC
Respondent,
V.
ARLENE'S FLOWERS,INC, d/b/a Filed M (1 Fi
ARLENE'S FLOWERS AND GIFTS, and
BARRONELLE STUTZMAN,
Appellants.
ROBERT INGERSOLL and CURT FREED,
Respondents,
V.
ARLENE'S FLOWERS,INC., d/b/a
ARLENE'S FLOWERS AND GIFTS, and
BARRONELLE STUTZMAN,
Appellants.
GORDON McCLOUD, J.—The United States Supreme Court has tasked us
with deciding whether the Washington courts violated the United States
Constitution's guaranty of religious neutrality in our prior adjudication of this case.
No. 91615-2
We have fully reviewed the record with this issue in mind, and we have considered
substantial new briefing devoted to this topic. We now hold that the answer to the
Supreme Court's question is no; the adjudicatory bodies that considered this case
did not act with religious animus when they ruled that the florist and her corporation
violated the Washington Law Against Discrimination (WLAD), chapter 49.60
RCW,by declining to sell wedding flowers to a gay couple, and they did not act with
religious animus when they ruled that such discrimination is not privileged or
excused by the United States Constitution or the Washington Constitution.
Overview
This case is back before our court on remand from the United States Supreme
Court. The Supreme Court vacated our originaljudgment and remanded "for further
consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Comm'n.'' Arlene's Flowers, Inc. v. Washington, 138 S. Ct. 2671 (2018)(mem.).
In Masterpiece Cakeshop,the Supreme Court held that the adjudicatory body tasked
with deciding a particular case must remain neutral; that is, the adjudicatory body
must "give full and fair consideration" to the dispute before it and avoid animus
toward religion. 584 U.S. , 138 S. Ct. 1719, 1732, 201 L. Ed. 2d 35 (2018).
Disputes like those presented in Masterpiece Cakeshop and Arlene 's Flowers "must
be resolved with tolerance, without undue disrespect to sincere religious beliefs, and
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without subjecting gay persons to indignities when they seek goods and services in
an open market." Id.
We recognize the profound importance of a fair and neutral adjudicator.
Although settled law compelled us to reject Arlene's Flowers and Barronelle
Stutzman's claims the first time around, we recognized Stutzman's "sincerely held
religious beliefs" and "analyze[d] each of [her] constitutional defenses carefully."
State V. Arlene's Flowers, Inc., 187 Wash. 2d 804, 815-16, 830, 389 P.3d 543 (2017).
And on remand, we have painstakingly reviewed the record for any sign of
intolerance on behalf of this court or the Benton County Superior Court, the two
adjudicatory bodies to consider this case. After this review, we are confident that
the two courts gave full and fair consideration to this dispute and avoided animus
toward religion. We therefore find no reason to change our original decision in light
of Masterpiece Cakeshop.
The dispute we resolve today is the same as the dispute that formed the basis
for our original opinion.' The State of Washington bars discrimination in "public . . .
accommodation[s]" on the basis of "sexual orientation." RCW 49.60.215(1).
Barronelle Stutzman owns and operates a place of public accommodation in our
'The careful reader will notice that starting here, major portions of our original
(now vacated) opinion. State v. Arlene's Flowers, Inc., 187 Wash. 2d 804, are reproduced
verbatim.
No. 91615-2
state: Arlene's Flowers Inc. Stutzman and her public business, Arlene's Flowers
and Gifts, refused to sell wedding flowers to Robert Ingersoll because his betrothed.
Curt Freed, is a man. The State and the couple sued, each alleging violations ofthe
WLAD and the Consumer Protection Act (CPA), chapter 19.86 RCW. Stutzman
defended on the grounds that the WLAD and CPA do not apply to her conduct and
that ifthey do,those statutes violate her state and federal constitutional rights to free
speech, free exercise ofreligion, and free association.
The Benton County Superior Court granted summary judgment to the State
and the couple,rejecting all of Arlene's Flowers and Stutzman's claims. We granted
review, and in our earlier opinion, we affirmed. The United States Supreme Court
then granted appellants' petition for a writ of certiorari, vacated, and remanded, as
discussed in the Procedural History section below.
On remand, we once again affirm. In doing so, we reject appellants'
expansive reading of Masterpiece Cakeshop. We reject appellants' attempt to
relitigate issues resolved in our first opinion and outside the scope of this remand.
And we reject appellants' suggestion that the permanent injunction requires them to
"personally attend and participate in same-sex weddings." Br. of Appellants(Nov.
13, 2018) at 25. As the superior court carefully noted, "The degree to which
[Stutzman] voluntarily involves herself in an event... is not before the Court" and
No. 91615-2
therefore would not "be covered by an injunction." Clerk's Papers (CP) at 2347
n.23.
Facts
In 2004, Ingersoll and Freed began a committed, romantic relationship. In
2012, the people of our state voted to recognize equal civil marriage rights for same-
sex couples. Laws of2012, ch. 3, § 1 (Referendum Measure 74, approved Nov. 6,
2012). Freed proposed marriage to Ingersoll that same year. The two intended to
marry on their ninth anniversary, in September 2013, and were "excited about
organizing [their] wedding." Clerk's Papers (CP) at 350. Their plans included
inviting "[a] hundred plus" guests to celebrate with them at Bella Fiori Gardens,
complete with a dinner or reception, a photographer, a caterer, a wedding cake, and
flowers. Id. at 1115-11.
By the time he and Freed became engaged, Ingersoll had been a customer at
Arlene's Flowers for at least nine years, purchasing numerous floral arrangements
from Stutzman and spending an estimated several thousand dollars at her shop.
Stutzman is the owner and president of Arlene's Flowers. She employs
approximately 10 people, depending on the season, including three floral designers,
one of whom is herself. Stutzman knew that Ingersoll is gay and that he had been in
a relationship with Freed for several years. The two men considered Arlene's
Flowers to be "[their] florist." Id. at 350.
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No. 91615-2
Stutzman is an active member of the Southern Baptist church. It is
uncontested that her sincerely held religious beliefs include a belief that marriage
can exist only between one man and one woman.
On February 28, 2013, Ingersoll went to Arlene's Flowers on his way home
from work, hoping to talk to Stutzman about purchasing flowers for his upcoming
wedding. Ingersoll told an Arlene's Flowers employee that he was engaged to marry
Freed and that they wanted Arlene's Flowers to provide the flowers for their
wedding. The employee informed Ingersoll that Stutzman was not at the shop and
that he would need to speak directly with her. The next day, Ingersoll returned to
speak with Ms. Stutzman. At that time, Stutzman told Ingersoll that she would be
unable to do the flowers for his wedding because ofher religious beliefs, specifically
because of"her relationship with Jesus Christ." Id. at 155, 351, 1741-42, 1744-45,
1763. Ingersoll did not have a chance to specify what kind of flowers or floral
arrangements he was seeking before Stutzman told him that she would not serve
him. They also did not discuss whether Stutzman would be asked to bring the
arrangements to the wedding location or whether the flowers would be picked up
from her shop.
Stutzman asserts that she gave Ingersoll the names of other florists who might
be willing to serve him, and that the two hugged before Ingersoll left her store.
No. 91615-2
Ingersoll maintains that he walked away from that conversation "feeling very hurt
and upset emotionally." Id. at 1743.
Early the next morning, after a sleepless night, Freed posted a status update
on his personal Facebook feed regarding Stutzman's refusal to sell him wedding
flowers. The update observed, without specifically naming Arlene's Flowers, that
the couple's "favorite Richland Lee Boulevard flower shop" had declined to provide
flowers for their wedding on religious grounds, and noted that Freed felt "so deeply
offended that apparently our business is no longer good business" because "[his]
loved one [did not fit] within their personal beliefs." Id. at 1262. This message was
apparently widely circulated, though Ingersoll testified that their Facebook settings
were such that the message was "only intended for our friends and family." Id. at
1760, 1785. Eventually, the story drew the attention of numerous media outlets.
As a result of the "emotional toll" Stutzman's refusal took on Freed and
Ingersoll, they "lost enthusiasm for a large ceremony" as initially imagined. Id. at
1490. In fact, the two "stopped planning for a wedding in September 2013 because
[they] feared being denied service by other wedding vendors." Id. at 351. The
couple also feared that in light ofincreasing public attention—some of which caused
them to be concerned for their own safety—as well as then-ongoing litigation, a
larger wedding might require a security presence or attract protesters, such as the
Westboro Baptist group. So they were married on July 21, 2013, in a modest
No. 91615-2
ceremony at their home. There were 11 people in attendance. For the occasion,
Freed and Ingersoll purchased one bouquet of flowers from a different florist and
boutonnieres from their friend. When word of this story got out in the media, a
handful of florists offered to provide them wedding flowers free of charge.
Stutzman also received a great deal of attention from the publicity surrounding
this case, including threats to her business and other unkind messages.
Prior to Ingersoll's request, Arlene's Flowers had never had a request to
provide flowers for a same-sex wedding, and the only time Stutzman has ever
refused to serve a customer is when Ingersoll and Freed asked her to provide flowers
for their wedding. The decision not to serve Ingersoll was made strictly by Stutzman
and her husband. After Ingersoll and Freed's request, Stutzman developed an
"unwritten policy" for Arlene's Flowers that they "don't take same sex marriages."
Id. at 120. Stutzman states that the only reason for this policy is her conviction that
"biblically[,] marriage is between a man and a woman." Id. at 120-21. Aside from
Ingersoll and Freed, she has served gay and lesbian customers in the past for other,
non-wedding-related flower orders.
Stutzman maintains that she would not sell Ingersoll any arranged flowers for
his wedding, even if he were asking her only to replicate a prearranged bouquet from
a picture book of sample arrangements. She believes that participating, or allowing
any employee of her store to participate, in a same-sex wedding by providing custom
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No. 91615-2
floral arrangements and related customer service is tantamount to endorsing
marriage equality for same-sex couples. She draws a distinction between creating
floral arrangements—even those designed by someone else—and selling bulk
flowers and "raw materials," which she would be happy to do for Ingersoll and
Freed. Id. at 546-47. Stutzman believes that to create floral arrangements is to use
her "imagination and artistic skill to intimately participate in a same-sex wedding
ceremony." Id. at 547. However, Stutzman acknowledged that selling flowers for
an atheistic or Muslim wedding would not be tantamount to endorsing those systems
of belief.
By Stutzman's best estimate, approximately three percent of her business
comes from weddings. Stutzman is not currently providing any wedding floral
services (other than for members of her immediate family) during the pendency of
this case.
Procedural History
After the State became aware ofStutzman's refusal to sell flowers to Ingersoll
and Freed, the Attorney General's Office sent Stutzman a letter. It sought her
agreement to stop discriminating against customers on the basis of their sexual
orientation and noted that doing so would prevent further formal action or costs
against her. The letter asked her to sign an "Assurance of Discontinuance," which
No. 91615-2
stated that she would no longer discriminate in the provision of wedding floral
services. Stutzman refused to sign the letter.
As a result, the State filed a complaint for injunctive and other relief under the
CPA and the WLAD against both Stutzman and Arlene's Flowers,in Benton County
Superior Court on April 9, 2013. Stutzman filed an answer on May 16, 2013,
asserting, among other defenses, that her refusal to furnish Ingersoll with wedding
services was protected by the state and federal constitutions' free exercise of
religion, free speech, and freedom of association guaranties. Ingersoll and Freed
filed a private lawsuit against Arlene's Flowers and Stutzman on April 18, 2013,
which the trial court consolidated with the State's case on July 24,2013. The parties
filed various cross motions for summary judgment. The trial court ultimately
entered judgment for the plaintiffs in both cases, awarding permanent injunctive
relief, as well as monetary damages for Ingersoll and Freed to cover actual damages,
attorney fees, and costs, and finding Stutzman personally liable.
When it granted the plaintiffs' motions for summary judgment, the trial court
made seven rulings that are at issue in this appeal. First, it issued two purely
statutory rulings: (1) that Stutzman violated the WLAD's public accommodations
provision(RCW 49.60.215(1)) and the CPA {see RCW 19.86.020; RCW 49.60.030)
by refusing to sell floral services for same-sex weddings and (2)that both Stutzman
(personally) and Arlene's Flowers (the corporate defendant) were liable for these
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No. 91615-2
violations. CP at 2566-600. Next, the court made five constitutional rulings. It
concluded that the application of the WLAD's public accommodations provision to
Stutzman in this case (1) did not violate Stutzman's right to free speech under the
First Amendment to the United States Constitution or article I, section 5 of the
Washington Constitution, (2) did not violate Stutzman's right to religious free
exercise under the First Amendment,(3) did not violate her right to free association
under the First Amendment,(4) did not violate First Amendment protections under
the hybrid rights doctrine, and (5) did not violate Stutzman's right to religious free
exercise under article I, section 11 of the Washington Constitution. Id. at 2601-60.
Stutzman appealed directly to this court, assigning error to all seven of those
rulings. We granted direct review. Order, Ingersoll v. Arlene's Flowers, Inc., No.
91615-2 (Wash. Mar. 2, 2016). With respect to most of the claims, Stutzman and
Arlene's Flowers make identical arguments—in other words, Stutzman asserts that
both she and her corporation enjoy identical rights offree speech, free exercise, and
free association.^ It is only with respect to the CPA claim that Stutzman asserts a
^ In their brief on remand, appellants again claim that the corporation's "free-
exercise rights are synonymous with Mrs. Stutzman's." Br. of Appellants(Nov. 13, 2018)
at 18 n.3. But the general rule is that '"[a] corporation exists as an organization distinct
from the personality of its shareholders.'" Br. for Professor Kent Greenfield as Amicus
Curiae in Supp. of Resp'ts at 8 (alteration in original)(quoting Grayson v. Nordic Constr.
Co., Inc., 92 Wash. 2d 548, 552, 599 P.2d 1271 (1979)). In this case, however, we need not
resolve whether some exception to that rule allows Arlene's Flowers to share the free
exercise rights of its shareholders, officers, and employees. Even assuming the rights are
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No. 91615-2
separate defense: she argues that even if Arlene's Flowers is liable for the CPA
violation, she cannot be personally liable for a violation of that statute.
In our original opinion, we affirmed the trial court's rulings. Arlene's
Flowers, 187 Wash. 2d at 856. Appellants then petitioned the United States Supreme
Court for a writ of certiorari, seeking review of their federal free speech and free
exercise claims. Pet. for Writ of Cert., Arlene's Flowers, No. 17-108 (U.S. July 14,
2017). Before ruling on the petition, the United States Supreme Court issued its
decision in Masterpiece Cakeshop, 138 S. Ct. 1719, a case involving similar issues
to those in the case before us now. The Supreme Court then granted appellants'
petition, vacated our original judgment, and remanded "for further consideration in
light of Masterpiece Cakeshop.'" Arlene's Flowers, 138 S. Ct. 2671.
The parties, as well as several other interested organizations and individuals
(amici curiae), have fully briefed what they see as the issues on remand.^ Appellants
now claim that the permanent injunction issued by the superior court requires them
to "personally attend and participate in same-sex weddings." Br. of Appellants
(Nov. 13, 2018) at 25. Stutzman made a similar argument before the superior court.
synonymous, we found no violation of any constitutional right in our first opinion, and
today we hold that that opinion is unaffected by Masterpiece Cakeshop.
^ The parties have not moved for oral argument, and we find the briefing sufficient
for our consideration of this case on remand.
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No. 91615-2
claiming "that other aspects of her involvement in weddings are speech, including
singing, standing for the bride, clapping to celebrate the marriage, and in one
instance counseling the bride." CP at 2347 n.23. But as the superior court explained.
Tellingly, Stutzman does not claim that she was being paid to do any of
these things. Said another way, she does not claim that these are
services that she is providing for a fee to her customers such that they
would be covered by an injunction. The degree to which she voluntarily
involves herself in an event outside the scope of services she must
provide to all customers on a non-discriminatory basis (if she provides
the service in the first instance) is not before the Court.
Id. The issue was not before the superior court then, and it is not before this court
now.
In addition, Arlene's Flowers and Stutzman filed a motion to supplement the
record or for judicial notice, as did the State of Washington. We passed the motions
to supplement or for judicial notice to the merits, and we now deny both motions
and adhere to our original decision for the reasons explained below.
Analysis
A grant, vacate, remand (GVR)order "is neither an outright reversal nor an
invitation to reverse; it is merely a device that allows a lower court that had rendered
its decision without the benefit of an intervening clarification to have an opportunity
to reconsider that decision and, if warranted, to revise or correct it." Gonzalez v.
Justices of Mun. Court, 420 F.3d 5, 7 (1st Cir. 2005). "Consequently, we do not
treat the Court's GVR order as a thinly-veiled direction to alter course . .. ." Id.', see
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No. 91615-2
also Wright v. Florida, 256 So. 3d 766, 770(Fla. 2018)("[W]e will not guess at the
implied intentions of the Supreme Court's GVR order."), cert, denied {U.S. June 3,
2019)(No. 18-8653). Instead, we follow the Supreme Court's clear instruction to
"further consider[]" this case "in light ofMasterpiece Cakeshop.'" Arlene's Flowers,
138 S. Ct. 2671; see also Gonzalez, 420 F.3d at 8 ("As a general rule, 'when the
Supreme Court remands in a civil case, the [court on remand] should confine its
ensuing inquiry to matters coming within the specified scope of the remand.'"
(quoting Kotler v. Am. Tobacco Co., 981 F.2d 7, 13 (1st Cir. 1992))).
I. In Masterpiece Cakeshop, the Supreme Court held that the adjudicatory
body tasked with deciding a particular case must remain neutral
In Masterpiece Cakeshop, Jack Phillips, the shop's owner, told a same-sex
couple "that he would not create a cake for their wedding because of his religious
opposition to same-sex marriages—marriages the State of Colorado itself did not
recognize at that time." 138 S. Ct. at 1723. After being turned away, the couple
filed a charge with the Colorado Civil Rights Commission (Commission), id, a state
adjudicatory body "charged with the solemn responsibility of fair and neutral
enforcement of Colorado's antidiscrimination law," id. at 1729. The couple alleged
that the shop owner had illegally discriminated against them "on the basis of sexual
orientation." Id. at 1723. The Commission ruled in the couple's favor, and the
Colorado courts affirmed. Id.
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No. 91615-2
At the Supreme Court, Phillips argued that Colorado violated his First
Amendment rights by requiring him "to use his artistic skills to make an expressive
statement, a wedding endorsement in his own voice and of his own creation." Id. at
1728; U.S. Const, amend. I. The Supreme Court explained that "the baker likely
found it difficult to find a line where the customers' rights to goods and services
became a demand for him to exercise the right of his own personal expression for
their message, a message he could not express in a way consistent with his religious
beliefs." Id. The Court found the baker's "dilemma ... particularly understandable"
given that Colorado did not yet "recognize the validity of gay marriages performed
in its own State." Id.
At the same time, the Court reaffirmed that "while . . . religious and
philosophical objections [to gay mamage] are protected, it is a general rule that such
objections do not allow business owners and other actors in the economy and in
society to deny protected persons equal access to goods and services under a neutral
and generally applicable public accommodations law." Id. at 1727 (citing Hurley v.
Irish-Am. Gay, Lesbian & Bisexual Grp. ofBoston, Inc., 515 U.S. 557, 572, 115 S.
Ct. 2338, 132 L. Ed. 2d 487(1995); Newman v. Biggie Park Enters., Inc., 390 U.S.
400, 402, 402 n.5, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968)(per curiam)). In fact,
the Biggie Bark footnote to which the United States Supreme Court cites explicitly
states that the shop owners' defense in that case—^that the Civil Rights Act of 1964,
15
No. 91615-2
42 U.S.C. § 2000e, '"constitutes an interference with the free exercise of the
Defendant's religion'"—was "patently frivolous." Piggie Park, 390 U.S. at 402 n.5
(internal quotation marks omitted)(quoting Newman v. Piggie Park Enters., Inc.,
377 F.2d 433, 438 (4th Cir. 1967)(Winter, J., concurring specially)). Indeed, in
Masterpiece Cakeshop,"Petitioners conceded . . . that if a baker refused to sell any
goods or any cakes for gay weddings,... the State would have a strong case under
[the Supreme] Court's precedents that this would be a denial of goods and services
that went beyond any protected rights of a baker who offers goods and services to
the general public and is subject to a neutrally applied and generally applicable
public accommodations law." 138 S. Ct. at 1728.
As to weddings, the Supreme Court noted that "it can be assumed that a
member of the clergy who objects to gay marriage on moral and religious grounds
could not be compelled to perform the ceremony without denial of his or her right
to the free exercise of religion." Id. at 1727. But the Court observed the narrowness
of such an exception:
Yet if that exception were not confined, then a long list of persons who
provide goods and services for marriages and weddings might refuse to
do so for gay persons, thus resulting in a community-wide stigma
inconsistent with the history and dynamics of civil rights laws that
ensure equal access to goods, services, and public accommodations.
Id. Thus,
16
No. 91615-2
any decision in favor of the baker would have to be sufficiently
constrained, lest all purveyors of goods and services who object to gay
marriages for moral and religious reasons in effect be allowed to put up
signs saying "no goods or services will be sold if they will be used for
gay marriages," something that would impose a serious stigma on gay
persons.
Id. at 1728-29.
In sum, the issue before the Supreme Court was one of the "proper
reconciliation of at least two principles." Id. at 1723. "The first is the authority of
a State and its governmental entities to protect the rights and dignity of gay persons
who are, or wish to be, married but who face discrimination when they seek goods
or services." Id. "The second is the right of all persons to exercise fundamental
freedoms under the First Amendment,as applied to the States through the Fourteenth
Amendment." Id.
But the Supreme Court did not reconcile those two principles. Instead, the
Court explained that the Commission failed to adjudicate "with the religious
neutrality that the Constitution requires" and held that "whatever the outcome of
some future controversy involving facts similar to these, the Commission's actions
here violated the Free Exercise Clause [of the First Amendment]." Id. at 1724.
"Phillips was entitled to a neutral decisionmaker who would give full and fair
consideration to his religious objection as he sought to assert it in all of the
circumstances in which this case was presented, considered, and decided." Id. at
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No. 91615-2
1732. Disputes like Phillips' "must be resolved with tolerance, without undue
disrespect to sincere religious beliefs, and without subjecting gay persons to
indignities when they seek goods and services in an open market." Id.
The Supreme Court therefore ruled that the Commission violated the free
exercise clause of the First Amendment in two respects: two of its members made
disparaging comments about religion and it treated similarly situated parties
differently. We address each ofthose holdings below.
A. Members of an Adjudicatory Body May Not Disparage the Religion of
a Party Before It
The Supreme Court observed that two of the seven commissioners on the
Commission "endorsed the view that religious beliefs cannot legitimately be carried
into the public sphere or commercial domain, implying that religious beliefs and
persons are less than fully welcome in Colorado's business community." Id. at 1729.
The Court took particular issue with the following statement made by a
commissioner:
"Freedom of religion and religion has been used to Justify all kinds of
discrimination throughout history, whether it be slavery, whether it be
the Holocaust, whether it be—I mean, we—we can list hundreds of
situations where freedom of religion has been used to justify
discrimination. And to me it is one of the most despicable pieces of
rhetoric that people can use to—to use their religion to hurt others."
Id. That statement, the Court reasoned, characterized the baker's religion as
"something insubstantial and even insincere," which "is inappropriate for a
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No. 91615-2
Commission charged with the solemn responsibility of fair and neutral enforcement
of Colorado's antidiscrimination law—a law that protects against discrimination on
the basis of religion as well as sexual orientation." Id. The other commissioners did
not object to this statement, nor did they object to two related statements made by
another commissioner. Id. "And the later state-court ruling reviewing the
Commission's decision did not mention those comments, much less express concern
with their content." Id. at 1729-30.
The Supreme Court, emphasizing that the statements were made "by an
adjudicatory body deciding a particular case"—^not "by lawmakers" or members of
the executive branch—concluded that the "statements cast doubt on the fairness and
impartiality of the Commission's adjudication of Phillips' case." Id. at 1730.
B. An Adjudicatory Body Must Treat Similarly Situated Parties Equally
The Court also discussed "the difference in treatment" between Phillips' case
and the cases ofthree other bakers who refused, on the basis ofconscience,"to create
cakes with images that conveyed disapproval of same-sex marriage, along with
religious text." Id. at 1730. In those three cases, all of which occurred "while
enforcement proceedings against Phillips were ongoing," id. at 1728, the Colorado
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No. 91615-2
Civil Rights Division'^ "found that the baker acted lawfully in refusing service," id.
at 1730. The Supreme Court held that "the Commission's consideration ofPhillips'
religious objection did not accord with its treatment of these other objections." Id.
II. Masterpiece Cakeshop does not affect our original decision because the
adjudicatory bodies tasked with deciding this case remained neutral
Throughout the course ofthis litigation, appellants have never alleged that the
adjudicatory bodies tasked with deciding this case failed to remain neutral. Since
the argument has never been made, we had no reason to discuss in our first opinion
the importance of a neutral adjudicatory body or to comb the record for signs of bias
from the courts.
Even on remand, appellants still do not claim that our court or the Benton
County Superior Court failed to adjudicate "with the religious neutrality that the
Constitution requires." Masterpiece Cakeshop, 138 S. Ct. at 1724. Presumably,
appellants do not make such a claim because the record would not support it. Indeed,
the record reveals that the courts remained neutral "in all of the circumstances in
which this case was presented, considered, and decided." Id. at 1732. In its decision,
the Benton County Superior Court acknowledged that "Stutzman has a sincerely-
held religious belief that is "entirely consistent" with her church's "doctrinal
^ The Colorado Civil Rights Division is tasked with investigating claims and
referring those with potential merit to the Commission. Masterpiece Cakeshop, 138 S. Ct.
at 1725.
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No. 91615-2
statement," and the superior court refused to "inquire further in the matter." CP
2355. In fact, the superior court went out of its way to note that it
intend[ed] no disrespect and d[id] not mean to imply either that
Stutzman possesses any racial animus, or that she has conducted herself
in any way inconsistently with Resolutions of the [Southern Baptist
Church]'s direction to condemn "any form of gay-bashing,
disrespectful attitudes, hateful rhetoric, or hate-incited actions" toward
gay men or women.
CP at 2360 n.31. Our court also recognized Stutzman's "sincerely held religious
beliefs," Arlene's Flowers, 187 Wash. 2d at 815-16, and "analyze[d] each of [her]
constitutional defenses carefully," id. at 830. After carefully reviewing the record,
including transcripts of hearings and written orders, and after carefully reviewing
our prior opinion, we are confident that the courts resolved this dispute "with
tolerance, without undue disrespect to sincere religious beliefs, and without
subjecting gay persons to indignities when they seek goods and services in an open
market." Id. at 1732.
Apparently realizing the limits of Masterpiece Cakeshop, appellants attempt
to stretch its holding beyond recognition and to relitigate issues resolved in our first
opinion and outside the scope of Masterpiece Cakeshop. We reject this attempt and
instead comply with the Supreme Court's explicit mandate to "further consider[]"
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No. 91615-2
our original judgment "in light of Masterpiece Cakeshop" Arlene's Flowers, 138
S. Ct. 2671; see also Gonzalez, 420 F.3d at 7-8.^
III. We deny the motions to supplement the record or to take judicial notice
This court will grant a motion to supplement the record or to take judicial
notice only ifthe proposed supplemental materials are relevant to the outcome ofthe
proceeding. For example, we "may direct that additional evidence on the merits of
the case be taken before the decision of a case on review if "additional proof of
facts is needed tofairly resolve the issues on review,""the additional evidence would
probably change the decision being reviewed," and '77 would be inequitable to
decide the case solely on the evidence already taken in the trial court." RAP 9.11(a)
(emphasis added). Ifthe additional evidence is irrelevant, it is not needed to resolve
the issues on review, it would not change the decision being reviewed, and it would
therefore be equitable to decide the case without the irrelevant evidence.
Additionally, in some situations we may take judicial notice of adjudicative facts
^ For this reason, we also reject appellants' attempt to rely on Janus v. American
Federation ofState, County, & Municipal Employees, Council SI, U.S. , 138 S. Ct.
2448, 201 L. Ed. 2d 924 (2018), and National Institute of Family & Life Advocates v.
Becerra, U.S. , 138 S. Ct. 2361, 201 L. Ed. 2d 835 (2018). Both of those opinions
were issued after the Supreme Court remanded this case, and therefore both are outside the
scope ofthe remand. Even if we were to consider those cases, neither involves the type of
public accommodations statute at issue here or in Masterpiece Cakeshop. As Masterpiece
Cakeshop observes, "The outcome of cases like this in other circumstances must await
further elaboration in the courts." 138 S. Ct. at 1732. Neither nor Becerra provides
further elaboration.
22
No. 91615-2
under our Evidence Rules—but only if those facts are relevant. ER 201; ER 402
("Evidence which is not relevant is not admissible.").
Appellants Arlene's Flowers and Stutzman filed a motion to supplement the
record or for this court to take judicial notice of supplemental materials. The
proposed supplemental materials concern a single unrelated incident that occurred
after we issued our first opinion in this case but before the Supreme Court ruled on
appellants' petition for writ of certiorari. In that unrelated incident, appellants claim
that "the owner ofBedlam Coffee in Seattle expelled a group of Christian customers
visiting his shop." Appellants' Mot. to Suppl. R. or for Judicial Notice at 2. The
crux of appellants' argument is that the attorney general sought to enforce the
WLAD in the case before us but not in the incident at the coffee shop, revealing
"hostility toward Mrs. Stutzman's beliefs." Id. at 7.
Respondent State also filed a motion to supplement the record or for this court
to take judicial notice of supplemental materials. Although the State argues that the
incident in the coffee shop is irrelevant, it requests that if we grant appellants'
motion,then we should also grant its motion "to give a more complete picture ofthe
incident described." Resp't State of Wash.'s Mot. to Suppl. R. or for Judicial Notice
at 3-4. For their part, respondents Ingersoll and Freed argue that "the other parties'
proposed supplemental materials are irrelevant." Br. of Resp'ts Ingersoll & Freed
on Remand from the U.S. Supreme Ct.(Jan. 14, 2019) at 13 n.3.
23
No. 91615-2
We agree with respondents Ingersoll and Freed and hold that the attorney
general's response to the incident at the coffee shop is irrelevant to this case. As
discussed above, the Supreme Court in Masterpiece Cakeshop held that the
adjudicatory body tasked with deciding a particular case must remain neutral. That
Court was explicitly sensitive to the context in which the lack of neutrality occurred:
during adjudication by the adjudicatory body deciding the case. Masterpiece
Cakeshop, 138 S. Ct. at 1729-30 (describing statements made by lawmakers during
lawmaking as "a very different context"); see also Br. of Church-State Scholars as
Amici Curiae in Supp. of Pls.-Resp'ts (Mar. 13, 2019) at 9 (noting 'Masterpiece's
clear sensitivity to the institutional context in which the government allegedly
engaged in religious targeting"). The holding of Masterpiece Cakeshop might make
additional evidence about a lack of neutrality on behalf of the adjudicatory bodies
that heard this case relevant. But that is not what the proposed evidence is about;
the parties instead seek to introduce evidence about a lack of neutrality on behalf of
the attorney for one of the parties, the attorney general of the State of Washington.
It would take a broad expansion of Masterpiece Cakeshop to apply its
holding—that the adjudicatory body hearing a case must show religious neutrality—
to a party. That is especially true here, where the party supposedly exhibiting
antireligious bias is Washington's attorney general. By arguing that Masterpiece
Cakeshop's holding about adjudicatory bodies applies to the attorney general's
24
No. 91615-2
enforcement decisions, appellants essentially seek to revive their selective-
enforcement claim, a claim that was rejected by the superior court, CP at 2361-64,
and abandoned on appeal, see Statement of Grounds for Direct Review at 6.
Appellants' decision to abandon that claim on appeal was sound. Controlling
precedent shows that claims of selective enforcement arise in "a very different
context" than claims of biased adjudication. Masterpiece Cakeshop, 138 S. Ct. at
1729-30. In the criminal arena, the United States Supreme Court has noted that
selective-enforcement claims "invade a special province of the Executive—its
prosecutorial discretion." Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S.
471, 489, 119 S. Ct. 936, 142 L. Ed. 2d 940 (1999). Courts are wary to question a
prosecutor's decision of which claims to pursue and thus generally '"presume that
[prosecutors] have properly discharged their official duties.'" United States v.
Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 134 L. Ed. 2d 687(1996)(quoting
United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1, 71 L. Ed. 131
(1926)). To overcome this presumption of regularity, the Court has "emphasized
that the standard for proving [selective-enforcement claims] is particularly
demanding." Am.-Arab Anti-Discrimination Comm., 525 U.S. at 489. A defendant
must "introduce 'clear evidence' displacing the presumption that a prosecutor has
acted lawfully." Id. {citmg Armstrong, 517 U.S. at 463-65).
25
No. 91615-2
Rather than grapple with this precedent, appellants seem to argue that
selective-enforcement claims premised on the free exercise clause should not be
subject to the same demanding standard to which all other selective-enforcement
claims are subject. Appellants' Resp. to Amici Curiae (Mar. 22, 2019) at 6-7. In
making this argument, appellants rely on two cases controlling in our court: Church
ofLukumi Bahalu Aye, Inc. v. City ofHialeah, 508 U.S. 520, 113 S. Ct. 2217, 124
L. Ed. 2d 472(1993), and Masterpiece Cakeshop. But the issue in Lukumi Bahalu
Aye was not whether the executive branch selectively enforced a law in an
unconstitutional manner; it was whether the law itself was neutral and generally
applicable. 508 U.S. at 531-32. And as appellants recognize. Masterpiece
Cakeshop—^the case with which we are most concerned on remand—says nothing
about selective-enforcement claims. Appellants' Resp. to Amici Curiae (Mar. 22,
2019)at 5-6. Against this backdrop, we decline to recognize the carve-out requested
by appellants but missing from any controlling precedent.
Even if appellants were correct, they fail to recognize that only one ofthe two
consolidated cases before us would be affected. The attorney general was not a party
to or a lawyer in Ingersoll and Freed's separate, private lawsuit, and the alleged
selective-enforcement claim would therefore not extend to it.^
® Appellants argue that Aew York Times Co. v. Sullivan, 376 U.S. 254,84 S. Ct. 710,
718, 11 L. Ed. 2d 686(1964), suggests otherwise. Reply Br. of Appellants(Feb. 13,2019)
26
No. 91615-2
In any event, we decline to expansively read Masterpiece Cakeshop to
encompass the "very different context" of executive branch discretion. We do not
believe that the Supreme Court intended to silently overturn any of its selective-
enforcement precedents or to create a carve-out within that precedent for claims
based on the free exercise clause. That is not to say that the Washington attorney
general is free to enforce the WLAD in a manner that offends the state or federal
constitution. We simply recognize our mandate on remand to further consider this
case in light of Masterpiece Cakeshop, a case that requires neutrality from the
adjudicatory bodies hearing a particular case and says nothing about claims of
selective enforcement by the executive branch. The remand is not an invitation to
the parties to litigate new issues outside the scope of both our initial ruling and
Masterpiece Cakeshop. Because the proposed supplemental evidence has nothing
to do with the neutrality of either our court or the Benton County Superior Court, it
is irrelevant, and the motions are therefore denied.
at 13. Sullivan involved the constitutionality of a state law, the enforcement of which
supplied the necessary state action. 376 U.S. at 265. At this stage of this case, we are no
longer concerned with the constitutionality of any state law; we held that the state laws
relevant here were constitutional in our first opinion, and Masterpiece Cakeshop does not
affect that analysis. Instead, we are concerned solely with Masterpiece Cakeshop's
mandate that state adjudicatory bodies must exhibit religious neutrality. Appellants argue
that Masterpiece Cakeshop's holding extends to the executive branch and that the attorney
general failed to act with the required neutrality. Even if that interpretation were correct,
it would have no bearing on the individual plaintiffs' lawsuit because the attorney general
was not a party to or a lawyer in that case.
27
No. 91615-2
IV. Because the Washington courts resolved this dispute with tolerance, we
find no reason to alter our original opinion
As noted above, this case presents both statutory and constitutional questions.
Both are reviewed de novo. Williams v. Tilaye, 174 Wash. 2d 57, 61, 272 P.3d 235
(2012)("[sjtatutory interpretation is a question of law reviewed de novo" (citing
State V. Wentz, 149 Wash. 2d 342, 346, 68 P.3d 282 (2003))); Hale v. Wellpinit Sch.
Dist. No. 49, 165 Wash. 2d 494, 503, 198 P.3d 1021 (2009)(appellate court "review[s]
all constitutional challenges de novo" (citing State v. Jones, 159 Wash. 2d 231, Til,
149 P.3d 636 (2006))).
A. Stutzman's Refusal To Provide Custom Floral Arrangements for a
Same-Sex Wedding Violated the WLAD's Prohibition on
Discrimination in Public Accommodations, RCW 49.60.215
Stutzman's first statutory argument implicates the WLAD, chapter 49.60
RCW. The trial court ruled that Stutzman violated RCW 49.60.215, which prohibits
discrimination in the realm of public accommodations. That statute provides:
(1) It shall be an unfair practice for any person or the person's agent
or employee to commit an act which directly or indirectly results in any
distinction, restriction, or discrimination, or the requiring of any person
to pay a larger sum than the uniform rates charged other persons, or the
refusing or withholding from any person the admission, patronage,
custom, presence, frequenting, dwelling, staying, or lodging in any
place of public resort, accommodation, assemblage, or amusement,
28
No. 91615-2
except for conditions and limitations established by law and applicable
to all persons, regardless of. . . sexual orientation ....
RCW 49.60.215. The protected class status of "sexual orientation" was added to
this provision in 2006. Laws of 2006, ch. 4, § 13.
The WLAD defines places of public accommodation to include places
maintained "for the sale of goods, merchandise, services, or personal property, or
for the rendering of personal services . . . ." RCW 49.60.040(2). Protected
individuals are guaranteed "[t]he right to the full enjoyment of any of the
accommodations, advantages, facilities, or privileges" of such places. RCW
49.60.030(l)(b). Additionally, the WLAD states that "[t]he right to be free from
discrimination because of.. . sexual orientation . .. is recognized as and declared to
be a civil right," RCW 49.60.030(1) (emphasis added). The WLAD prohibits
discrimination on the different basis of"marital status" in the employment context,
but not in the context of public accommodations. Compare RCW 49.60.180 (listing
"marital status" as a protected class in section governing unfair practices of
employers), with RCW 49.60.215 (omitting marital status from analogous public
accommodations statute).
RCW 49.60.030(2) authorizes private plaintiffs to bring suit for violations of
the WLAD. To make out a prima facie case under the WLAD for discrimination in
the public accommodations context, the plaintiff must establish four elements: (1)
29
No. 91615-2
that the plaintiff is a member of a protected class, RCW 49.60.030(1);(2) that the
defendant is a place of public accommodation, RCW 49.60.215; (3) that the
defendant discriminated against the plaintiff, whether directly or indirectly, id.; and
(4) that the discrimination occurred "because of the plaintiffs status or, in other
words, that the protected status was a substantial factor causing the discrimination,
RCW 49.60.030. See also Fell v. Spokane Transit Auth., 128 Wash. 2d 618, 637, 911
P.2d 1319 (1996) (setting forth elements of prima facie case for disability
discrimination under RCW 49.60.215).
Stutzman contests only the last element: she contends that she did not
discriminate against Ingersoll "because of his protected class status under the
WLAD. See Br. of Appellants at 19-21.^ She offers three arguments in support of
this interpretation ofthe statute.
First, Stutzman argues that if she discriminated against Ingersoll, it was on the
basis of his "marital status," not his "sexual orientation." Br. of Appellants at 19-
21. Second, she argues that the legislature could not have intended the 2006
^ No one disputes that Ingersoll and Freed are gay men who sought to marry in
recognition of their nearly nine-year committed relationship. And Stutzman admits that
she is the "sole owner and operator of Arlene's Flowers, Inc.," CP at 535, which is "a
Washington for-profit corporation engaged in the sale of goods and services, including
flowers for weddings," to the public. Id. at 2, 7-8. Furthermore, Stutzman confirms that
she declined to do the flowers for Ingersoll's wedding because of her religious convictions.
30
No. 91615-2
amendments to protect people seeking same-sex wedding services since same-sex
marriages were "illegal" in Washington in 2006. Id. at 15-17. She points out that
when the legislature amended the public accommodations provisions of the WLAD
in 2006, it also added language stating that the chapter "shall not be construed to
endorse any specific belief, practice, behavior, or orientation" and affirming that the
addition "shall not be construed to modify or supersede state law relating to
marriage." Id. at 17-18, 15 (quoting LAWS OF 2006, ch. 4, § 2 (codified at RCW
49.60.020)). Third, Stutzman argues that because the WLAD protects both sexual
orientation and religion, it requires that courts balance those rights when they
conflict.^ These arguments fail.
i. By refusing to provide services for a same-sex wedding, Stutzman
discriminated on the basis of"sexual orientation" under the WLAD
Stutzman argues that the WLAD distinguishes between discrimination on the
basis of "sexual orientation"—which the statute prohibits—and discrimination
against those who marry members ofthe same sex. But numerous courts—including
our own—have rejected this kind of status/conduct distinction in cases involving
^ Stutzman also argues that by compelling her to fumish flowers for a same-sex
marriage ceremony, the State "endorses" same-sex marriages and also requires her to
"endorse" them. Br. of Appellants at 18. She claims that this conflicts with the WLAD
provision stating that "[tjhis chapter shall not be construed to endorse any specific belief,
practice, behavior, or orientation." RCW 49.60.020. But Stutzman cites no legal authority
for this interpretation of the term "endorse" in the WLAD.
31
No. 91615-2
statutory and constitutional claims of discrimination. E.g., Hegwine v. Longview
Fibre Co., 162 Wash. 2d 340, 349, 172 P.3d 688(2007)("under the plain language of
the WLAD and its interpretative regulations, pregnancy related employment
discrimination claims are matters of sex discrimination"); Elane Photography, LLC
V. Willock, 2013-NMSC-040, 309 P.3d 53 (rejecting argument identical to
Stutzman's, in context ofNew Mexico's Human Rights Act(NMHRA),N.M. Stat.
Ann. §§ 28-1-1 to 28-1-13);^ Christian Legal Soc'y Chapter of Univ. of Cal. v.
Martinez, 561 U.S. 661,672,688, 130 S. Ct. 2971, 177 L. Ed. 2d 838(2010)(student
organization was discriminating based on sexual orientation, not belief or conduct,
when it excluded from membership any person who engaged in '"unrepentant
homosexual conduct'"; thus. University's antidiscrimination policy did not violate
First Amendment protections); see also Lawrence v. Texas, 539 U.S. 558, 575, 123
S. Ct. 2472,156 L. Ed.2d 508(2003)(by criminalizing conduct typically undertaken
^ In Elane Photography, the New Mexico Supreme Court addressed the question of
whether a wedding photographer discriminated against a lesbian couple on the basis of
their sexual orientation by refusing to photograph their wedding under a state public
accommodations law similar to the WLAD. 309 P.3d 53. The proprietor of Elane
Photography argued, much like Stutzman here, that she was not discriminating against
Willock and her fiancee based on their sexual orientation, but rather was choosing not to
"endorse" same-sex marriage by photographing one in conflict with her religious beliefs.
Id. at 61. The court rejected Elane Photography's attempt to distinguish status from
conduct,finding that "[t]o allow discrimination based on conduct so closely correlated with
sexual orientation would severely undermine the purpose of the NMHRA." Id. Elane
Photography was represented on appeal by the same organization—Alliance Defending
Freedom—that represents Stutzman before this court. Id. at 58.
32
No. 91615-2
by gay people, a state discriminates against gay people in violation of protections
under the Fourteenth Amendment to the federal constitution); Romer v. Evans, 517
U.S. 620, 641, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996)(Scalia, J., dissenting)
('"After all, there can hardly be more palpable discrimination against a class than
making the conduct that defines the class criminal.'" (quoting Padula v. Webster,
261 U.S. App. D.C. 365, 371, 822 F.2d 97 (1987))); Bray v. Alexandria Women's
Health Clinic, 506 U.S. 263, 270, 113 S. Ct. 753, 122 L. Ed. 2d 34 (1993)
(summarizing that some conduct is so linked to a particular group of people that
targeting it can readily be interpreted as an attempt to disfavor that group by stating
that "[a] tax on wearing yarmulkes is a tax on Jews");'° Bob Jones Univ. v. United
States, 461 U.S. 574,605, 103 S. Ct. 2017, 76 L. Ed. 2d 157(1983)("discrimination
Stutzman argues that Bray actually supports her position because the Bray Court
rejected the argument that a group's antiabortion protests outside clinics reflected an
'"invidiously discriminatory animus'" toward women in general. 506 U.S. at 269(quoting
Griffin v. Breckenridge,403 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971)); Reply
Br. of Appellants at 39. This is related to her argument in the opening brief on appeal that
because she generally lacks animus toward gay people, and because her refusal to provide
service to Mr. Ingersoll was motivated by religious beliefs, she cannot be said to have
discriminated "because of sexual orientation as required by the WLAD. See Br. of
Appellants at 19-21. From Bray, Stutzman concludes that her decision to decline Mr.
Ingersoll's "artistic commission" was acceptable because it was "reasonable" and she bore
"no underlying animus" toward gay people in general. Reply Br. of Appellants at 40.
However, Bray dealt with a question of statutory interpretation of 42 U.S.C. § 1985(3),
which has been interpreted to require a showing of animus. See Bray, 506 U.S. at 267-68;
Griffin, 403 U.S. at 102. In contrast, we have already addressed this question of an animus
requirement with regard to the WLAD and have held that it contains no such requirement
(see discussion below).
33
No. 91615-2
on the basis ofracial affiliation and association is a form ofracial discrimination")."
Finally, in 2015,the Supreme Court likened the denial of marriage equality to same-
sex couples itself to discrimination, noting that such denial "works a grave and
continuing harm," and is a "disability on gays and lesbians [that] serves to disrespect
and subordinate them." Obergefell v. Hodges, U.S. , 135 S. Ct. 2584, 2604,
2607-08, 192 L. Ed. 2d 609 (2015)(fundamental right to marry includes same-sex
couples and is protected by due process and equal protection clauses of Fourteenth
Amendment; abrogating the equal protection and due process holdings in Andersen
V. King County, 158 Wash. 2d 1, 30, 138 P.3d 963 (2006)(plurality opinion) to the
contrary).'^
In accordance with this precedent, we reject Stutzman's proposed distinction
between status and conduct fundamentally linked to that status. This is consistent
with the language of the WLAD itself, which, as respondents observe, states that it
is to be construed liberally, RCW 49.60.020; that all people, regardless of sexual
orientation are to have "/m// enjoyment of any of the accommodations, advantages.
"See also Blackburn v. Dep'tofSoc. & Health Servs., 186 Wash. 2d 250, 258-59, 375
P.3d 1076 (2016)(discrimination on basis of race occurs even where racially motivated
staffing decision might have been based on benign reason).
" In response to the authority cited here, Stutzman cites two cases for the
proposition that other courts have drawn a distinction between conduct and status. See
Reply Br. of Appellants at 36-37. She draws our attention to two trial court decisions from
Kentucky and Virginia. Id.
34
No. 91615-2
facilities, or privileges" of any place of public accommodation, RCW
49.60.030(l)(b)(emphasis added); and that all discriminatory acts, including any act
"which directly or indirectly results in any distinction, restriction, or discrimination"
based on a person's sexual orientation is an unfair practice in violation ofthe WLAD,
RCW 49.60.215(1)(emphasis added).
ii. There is no same-sex wedding exception to the WLAD's public
accommodation provision, RCW 49.60.215
For the reasons given in Section IV.A.i above, the plain language of RCW
49.60.215 prohibits Stutzman's refusal to provide same-sex wedding services to
Ingersoll; such refusal constitutes discrimination on the basis of"sexual orientation,"
in violation of RCW 49.60.215. The same analysis applies to her corporation.
Stutzman asks us to read an implied same-sex wedding exception into this
statute. She argues that the legislature could not have intended to require equal
access to public accommodations for same-sex wedding services because when it
amended RCW 49.60.215 to prohibit sexual orientation discrimination, same-sex
marriage was "illegal" in Washington.
We reject this argument for two reasons. First, the WLAD already contains
an express exemption to RCW 49.60.215 for "religious organization[s]"'^ that object
This exemption does not extend to Arlene's Flowers, which does not meet the
WLAD's definition of a "religious organization." RCW 26.04.010(7)(b) (defining
35
No. 91615-2
to providing public accommodations for same-sex weddings. Laws OF 2012, ch. 3,
§ 1(5) ("[n]o religious organization is required to provide accommodations,
facilities, advantages, privileges, services, or goods related to the solemnization or
celebration of a marriage" (formatting omitted)). If the WLAD already excluded
same-sex wedding services from the public accommodations covered under RCW
49.60.215,this exemption would be superfluous. We interpret statutes to avoid such
superfluity whenever possible. Rivard v. State, 168 Wash. 2d 775, 783, 231 P.3d 186
(2010)(in giving meaning to ambiguous statutory provisions,"we interpret a statute
to give effect to all language, so as to render no portion meaningless or
superfluous").
Second, for purposes of the analysis Stutzman would like us to adopt, same-
sex marriage has never been "illegal" in Washington. Stutzman cites our decision
in Waggoner v. Ace Hardware Corp., 134 Wash. 2d 748, 750, 953 P.2d 88 (1998),
which rejected a claim of marital status discrimination by two people terminated
from their jobs for cohabiting in contravention of their workplace antinepotism
policy. Waggoner argued that "cohabitation" fit within the meaning of the term
"marital status." In examining this question of statutory interpretation, we
"religious organization" to include "entities whose principal purpose is the study, practice,
or advancement of religion," such as "churches, mosques, synagogues, temples," etc.).
36
No. 91615-2
determined that the plain meaning of the word "marital"—^that is, pertaining to "the
status of being married, separated, divorced, or widowed"—was sufficient to resolve
the question against petitioners. Id. at 753. We thus rejected Waggoner's argument
because "[w]e presume legislative consistency when called upon to construe
statutory enactments or new amendments to old ones" and our legislature had
criminalized cohabitation prior to protecting marital status under the WLAD. Id. at
754. Of significance here, we noted that cohabitation remained a crime for a full
three years after marital status was included as a protected status, and observed that
"[i]t would be most anomalous for the Legislature to criminalize and protect the
same conduct at the same time." Id. (emphasis added). Stutzman argues that we
should treat same-sex marriage the same way and hold that the legislature could not
possibly have intended to protect that practice when it protected sexual orientation
as a status.
But Stutzman's reliance on Waggoner is misplaced. Washington's Defense
of Marriage Act did not criminalize same-sex marriage. Former RCW 9.79.120
(1973), Laws OF 1975, 1st Ex. Sess., ch. 260,§ 9A.92.010(211). Rather,
it codified, as a matter of state law, that the only legally recognized marriages in the
state of Washington were those between a man and a woman. See LAWS OF 1998,
ch. 1, § 2 ("It is the intent of the legislature ... to establish public policy against
same-sex marriage in statutory law that clearly and definitively declares same-sex
37
No. 91615-2
marriages will not be recognized in Washington."). Former RCW 26.04.010(1998)
enacted no criminal penalties for attempts by two individuals ofthe same sex to wed;
those individuals would simply not have had a valid "marriage" under Washington
law. See LAWS OF 1998, ch. 1, § 3. Former RCW 9.79.120, on the other hand,
specified that cohabitation was "a gross misdemeanor." Waggoner, 134 Wash. 2d at
754 n.4. Our reasoning in Waggoner turned on the presence of a criminal statute
targeting the conduct at issue, which is absent here.
We hold that there is no same-sex wedding exception to the WLAD's public
accommodations provisions.
iii. The WLAD contains no mandate to balance religious rights against
the rights of protected class members
In her final statutory argument regarding the WLAD,Stutzman contends that
the superior court erred by failing to balance her right to religious free exercise
against Ingersoll's right to equal service. Stutzman argues that because the WLAD
also protects patrons of public accommodations from discrimination based on
"creed," RCW 49.60.030(1), and because this court has recognized that the WLAD
"sets forth a nonexclusive list ofrights," Marquis v. City ofSpokane, 130 Wash. 2d 97,
107, 922 P.2d 43 (1996), the statute actually grants conflicting rights. As a
consequence, she argues, courts should conduct a balancing inquiry "on a case-by-
case basis," Reply Br. of Appellants at 43. She cites Seattle Times Co. v. Ishikawa,
38
No. 91615-2
97 Wash. 2d 30, 37-39, 640 P.2d 716(1982), for the rule that this court uses balancing
tests to resolve claims of competing rights in other contexts.'"^
But Stutzman cites no authority for her contention that the WLAD protects
proprietors of public accommodations to the same extent as it protects their patrons,
nor for her contention that a balancing test should be adopted for the WLAD. And,
to the extent that Stutzman relies on Ishikawa, that case is inapposite: it dealt with
two competing rights—the right to a fair trial and the right to open courts—both of
which are constitutional, not statutoiy. Id. aX 31.
When faced with a question of statutory interpretation, we '"must not add
words where the legislature has chosen not to include them.'" Lake v. Woodcreek
Homeowners Ass'n, 169 Wash. 2d 516, 526,243 P.3d 1283(2010)(quoting Dev.,
Inc. V. Cananwill, Inc., 150 Wash. 2d 674, 682, 80 P.3d 598 (2003)). Here, the
legislature has provided no indication in the text of the WLAD that it intended to
Although Stutzman refers to the balancing test set forth in Ishikawa, that is not
the test that she applies in her briefing. Instead, Stutzman articulates a three-part balancing
inquiry that(1)prioritizes "[rjights ofexpress constitutional magnitude ... over other rights
when they conflict,"(2)evaluates whether infringement on the rights ofthe opposing party
are narrowly tailored to protect the rights of the claimant, and (3) weighs the benefits and
burdens on each party. Br. of Appellants at 23-24. In conducting this inquiry, Stutzman
concludes that her rights "should take precedence" here because they are of constitutional
magnitude, rather than derived from police power as are Ingersoll's; the exception for
weddings only (as opposed to refusal to serve the gay community for any purpose) is
narrowly tailored to protect her religious rights; and she is more significantly burdened in
that she is forced to choose between losing business or violating her religious beliefs,
whereas "Mr. Ingersoll and Mr. Freed are able to obtain custom floral designs for their
same-sex wedding from nearby florists." Id.
39
No. 91615-2
import a fact-specific, case-by-case, constitutional balancing test into the statute.
Moreover, the plain terms of the WLAD's public accommodations provision—the
statute at issue here—^protect patrons, not business owners. In other regulatory
contexts, this court and the United States Supreme Court have held that individuals
who engage in commerce necessarily accept some limitations on their conduct as a
result. See United States v. Lee, 455 U.S. 252, 261, 102 S. Ct. 1051, 71 L. Ed. 2d
127(1982)(Stevens, J., concurring in judgment)(declining to extend Social Security
exemption to Amish employers on religious grounds because "[wjhen followers of
a particular sect enter into commercial activity as a matter of choice, the limits they
accept on their own conduct as a matter of conscience and faith are not to be
superimposed on the statutory schemes which are binding on others in that activity");
Backlund v. Bd. ofComm 'rs ofKing County Hosp. Dist. No. 2, 106 Wn.2d 632,648,
724 P.2d 981 (1986) (rejecting religious grounds as valid basis for physician to
decline liability insurance because "[tjhose who enter into a profession as a matter
of choice, necessarily face regulation as to their own conduct"); In re Marriage of
Didier, 134 Wash. App. 490, 499, 140 P.3d 607(2006).
Because it is inconsistent with the WLAD's plain terms and unsupported by
any precedent, we decline to adopt Stutzman's proposed balancing test. In sum.
40
No. 91615-2
Stutzman's refusal to provide custom floral arrangements for a same-sex wedding
violated the WLAD's prohibition on discrimination in public accommodations.'^
B. Stutzman Fails To Show That the WLAD, as Applied in This Case,
Violates Her State or Federal Constitutional Right to Free Speech
As noted above, Stutzman raises five constitutional challenges to the WLAD
as applied to her. She is correct that ifthe State statute violated a constitutional right,
the constitutional right would certainly prevail. U.S. Const, art. VI, cl. 2 (federal
constitutional supremacy); Davis v. Cox, 183 Wash. 2d 269, 294-95, 351 P.3d 862
(2015)(state constitutional provision prevails over state statute to the contrary). We
therefore analyze each of Stutzman's constitutional defenses carefully.
The first of these defenses is a free speech challenge: Stutzman contends that
her floral aiTangements are artistic expressions protected by the state and federal
constitutions and that the WLAD impermissibly compels her to speak in favor of
same-sex marriage.
i. As applied to Stutzman in this case, the WLAD does not violate First
Amendment speech protections
"Free speech is revered as the 'Constitution's most majestic guarantee,'
central to the preservation of all other rights." State ex rel. Pub. Disclosure Comm 'n
To the extent Stutzman argues that her religious free exercise rights supersede
Ingersoll's and Freed's statutory protections, we address that argument in the constitutional
analyses below.
41
No. 91615-2
V. 119 Vote No! Comm., 135 Wash. 2d 618, 624, 957 P.2d 691 (1998) (plurality
opinion)(quoting v. McClatchy Newspapers, Inc., 131 Wash. 2d 523, 536,936
P.2d 1123 (1997)). "The government may not prohibit the dissemination of ideas
that it disfavors, nor compel the endorsement of ideas that it approves." Knox v.
Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 309, 132 S. Ct. 2277, 183 L. Ed.
2d 281 (2012). Indeed, the First Amendment protects even hate speech, provided it
is not "fighting words" or a "'true threat.'" Virginia v. Black, 538 U.S. 343, 359,
123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003)(quoting Watts v. United States, 394 U.S.
705, 708, 89 S. Ct. 1399, 22 L. Ed. 2d 664(1969)(per curiam)).
Stutzman argues that the WLAD, as applied to her in this case, violates First
Amendment protections against"compelled speech" because it forces her to endorse
same-sex mamage. Br. of Appellants at 24-31. To succeed in this argument, she
must first demonstrate that the conduct at issue here—her commercial sale of floral
wedding arrangements—amounts to "expression" protected by the First
Amendment. Clark v. Cmty.for Creative Non-Violence, 468 U.S. 288, 293 n.5, 104
S. Ct. 3065, 82 L. Ed. 2d 221 (1984)("[I]t is the obligation ofthe person desiring to
engage in assertedly expressive conduct to demonstrate that the First Amendment
even applies. To hold otherwise would be to create a rule that all conduct is
presumptively expressive.").
42
No. 91615-2
She fails to meet this burden. The First Amendment's plain terms protect
"speech," not conduct. U.S. Const, amend. I ("Congress shall make no law . . .
abridging the freedom of speech."). But the line between speech and conduct in this
context is not always clear. Stutzman contends that her floral arrangements are
"speech" for purposes of First Amendment protections because they involve her
artistic decisions. Br. of Appellants at 24. Relying on the dictionary definition of
"art," as well as expert testimony regarding her creativity and expressive style, she
argues for a broad reading of protected speech that encompasses her "unique
expression," crafted in "petal, leaf, and loam." Id. at 25-26. Ingersoll and the State
counter that Stutzman's arrangements are simply one facet of conduct—selling
goods and services for weddings in the commercial marketplace—that does not
implicate First Amendment protections at all.
We agree that the regulated activity at issue in this case—Stutzman's sale of
wedding floral arrangements—is not "speech" in a literal sense and is thus properly
characterized as conduct. But that does not end our inquiry. The Supreme Court
has protected conduct as speech if two conditions are met: "[(1)] [a]n intent to
convey a particularized message was present, and [(2)] in the surrounding
circumstances the likelihood was great that the message would be understood by
those who viewed it." Spence v. Washington, 418 U.S. 405, 410-11,94 S. Ct. 2727,
41 L. Ed. 2d 842 (1974)(per curiam). Recent cases have characterized this as an
43
No. 91615-2
inquiry into whether the conduct at issue was "inherently expressive." Rumsfeld v.
Forum for Acad. & Inst. Rights, Inc. (FAIR), 547 U.S. 47, 64, 126 S. Ct. 1297, 164
L. Ed. 2d 156 (2006).
Stutzman's floral arrangements do not meet this definition. Certainly, she
argues that she intends to communicate a message through her floral arrangements.
But the major contest is over whether Stutzman's intended communications actually
communicated something to the public at large—whether her conduct was
"inherently expressive." Spence, 418 U.S. at 410-11; FAIR, 547 U.S. at 64. And
her actions in creating floral arrangements for wedding ceremonies do not satisfy
this standard.
The leading case on the "inherently expressive" standard is FAIR. The
plaintiffs in FAIR—an association oflaw schools and faculty members—challenged
the constitutionality of a law that required higher education institutions to provide
military recruiters on campus with access to facilities and students that was at least
equivalent to that of the most favorably treated nonmilitary recruiter. 547 U.S. at
52, 55. The FAIR Court ruled that the law schools' conduct in denying military
recruiters most-favorable-recruiter access to students was not protected by the First
Amendment because it was not "inherently expressive." Id. at 66. It explained that
additional speech would be required for an outside observer to understand that the
44
No. 91615-2
schools' reason for denying militaiy recruiters favorable access was to protest the
military's "Don't Ask, Don't Tell" policy. Id.
Stutzman's refusal is analogous. The decision to either provide or refuse to
provide flowers for a wedding does not inherently express a message about that
wedding. As Stutzman acknowledged at deposition, providing flowers for a
wedding between Muslims would not necessarily constitute an endorsement of
Islam, nor would providing flowers for an atheist couple endorse atheism. Stutzman
also testified that she has previously declined wedding business on "[m]ajor
holidays, when we don't have the staff or if they want particular flowers that we
can't get in the time frame they need." CP at 120. Accordingly, an outside observer
may be left to wonder whether a wedding was declined for one of at least three
reasons: a religious objection, insufficient staff, or insufficient stock.
Stutzman argues that FAIR is inapposite and that we should instead apply
Hurley. Hurley held that a state antidiscrimination law could not be applied so as to
require a private parade to include marchers displaying a gay pride message. 515
U.S. at 568. Stutzman claims Hurley recognizes her First Amendment right "to
exclude a message [she] did not like from the communication [she] chose to make."
Reply Br. of Appellants at 11 (citing Hurley, 515 U.S. at 574).'^
Stutzman relies on Redgrave v. Boston Symphony Orchestra, Inc., 855 F.2d 888
(1st Cir. 1988), in which the Boston Symphony (BSO) refused to perform with Vanessa
45
No. 91615-2
Hurley is similar to this case in one respect; it involved a public
accommodations law like the WLAD." But the Massachusetts trial court had ruled
that the parade itself was a place of public accommodation under state
antidiscrimination law—a ruling that the Supreme Court called "peculiar." 515 U.S.
at 561-62, 572. The Court noted that the parade's "inherent expressiveness"
Redgrave in light of her support of the Palestine Liberation Organization. Redgrave sued
the BSC for breach of contract and consequential damages in federal court. Redgrave v.
Boston Symphony Orchestra, Inc., 602 F. Supp. 1189 (D. Mass. 1985), aff'd in part,
vacated in part, 855 F.2d 888. The First Amendment issue in that ease arose from the
district court's concern that Redgrave's novel theory of consequential damages was
sufficiently related to defamation cases so as to implicate First Amendment concerns. Id.
at 1201.
However, as the attorney general here notes, the First Circuit resolved that case on
statutory interpretation of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12,
§§ 1 lH-11J, not on First Amendment grounds. Att'y Gen.'s Resp. Br. at 26. In fact, the
court ultimately chose to "decline to reach the federal constitutional issues," given the
complex interaction between First Amendment doctrine and state law, and saw "no need
to discuss the existence or content of a First Amendment right not to perform an artistic
endeavor." Redgrave, 855 F.2d at 911. Accordingly, Stutzman's references are, at best,
out-of-eircuit dicta.
Stutzman cites both Hurley and Boy Scouts ofAmerica v. Dale, 530 U.S. 640,
657, 120 S. Ct. 2446, 147 L. Ed. 2d 554(2000), as examples of cases in which the Supreme
Court vindicated First Amendment rights over state antidiscrimination public
accommodations laws. In fact, both cases involved state courts applying public
accommodations laws in unusually expansive ways, such that an individual, private,
expressive association of people fell under the law. Dale, 530 U.S. at 657(New Jersey
Court"went a step further" from an already "extremely broad" public accommodations law
in applying it "to a private entity without even attempting to tie the term 'place' to a
physical location"); Hurley, 515 U.S. at 572(noting that Massachusetts trial court applied
a public accommodations law "in a peculiar way" to encompass a privately sponsored
parade). This case is distinguishable because Arlene's Flowers is a paradigmatic public
accommodation.
46
No. 91615-2
distinguished it from the places traditionally subject to public accommodations
laws—^places that provide "publicly available goods, privileges, and services." Id.
at 568-72. Hurley is therefore unavailing to Stutzman: her store is the kind of public
accommodation that has traditionally been subject to antidiscrimination laws. See
Elane Photography, 309 P.3d at 68 (rejecting photographer's reliance on Hurley
because state antidiscrimination law applies not to defendant's photographs but to
"its business decision not to offer its services to protected classes of people";
concluding that "[wjhile photography may be expressive, the operation of a
photography business is not").'^
United States Supreme Court decisions that accord free speech protections to
conduct under the First Amendment have all dealt with conduct that is clearly
expressive, in and of itself, without further explanation. See Hurley, 515 U.S. at 568
(parades); United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d
287(1990)(burning the American flag); Texas v. Johnson, 491 U.S. 397, 109 S. Ct.
The Supreme Court has drawn this distinction between expressive conduct and
commercial activity in the context of First Amendment freedom of association claims, and
likewise rejected the notion that the First Amendment precludes enforcement of
antidiscrimination public accommodations laws in that context as well. E.g., Dale, 530
U.S. at 657 (distinguishing between "clearly commercial entities" and "membership
organizations" in cases involving the intersection between state public accommodations
laws and First Amendment rights); Roberts v. U.S. Jaycees, 468 U.S. 609, 627, 104 S. Ct.
3244, 82 L. Ed. 2d 462(1984)(finding that even private membership organizations may
be regulated by public accommodations laws where such regulations will not impair its
ability "to disseminate its preferred views" and holding that there was no such impairment
where young men's social organization was required to accept women members).
47
No. 91615-2
2533, 105 L. Ed. 2d 342(1989)(burning the American flag); United States v. Grace,
461 U.S. 171, 103 S. Ct. 1702, 75 L. Ed. 2d 736(1983)(distributing leaflets outside
Supreme Court building in violation of federal statute); Nat'I Socialist Party ofAm.
V. Village ofSkokie, 432 U.S. 43, 43, 97 S. Ct. 2205, 53 L. Ed. 2d 96 (1977)(per
curiam) ('"[m]arching, walking or parading'" while wearing Nazi uniforms
(alteration in original)); Smith v. Goguen, 415 U.S. 566, 588, 94 S. Ct. 1242, 39 L.
Ed. 2d 605 (1974) (White, J., concurring in judgment) (treating flag
'"contemptuously"' by wearing a small American flag sewn into the seat of one's
pants); Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752(1977)
(state motto on license plates); Spence, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d
842 (displaying American flag upside down on private property with peace sign
superimposed on it to express feelings about Cambodian invasion and Kent State
University shootings); Cohen v. California, 403 U.S. 15, 16, 91 S. Ct. 1780, 29 L.
Ed. 2d 284(1971)(wearing jacket emblazoned with the words "'F**k the Draft'");
Schacht V. United States, 398 U.S. 58, 90 S. Ct. 1555, 26 L. Ed. 2d 44 (1970)
(wearing army uniform in short play criticizing United States involvement in
Vietnam, inasmuch as it does not tend to discredit the armed forces); Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505, 89 S. Ct. 733, 21 L. Ed. 2d 731
(1969)(wearing black armbands to protest Vietnam conflict); Brown v. Louisiana,
383 U.S. 131,141-42,86 S. Ct. 719,15 L. Ed. 2d 637(1966)(sit-in to protest"whites
48
No. 91615-2
only" area in public library during civil rights struggle); Cox v. Louisiana, 379 U.S.
536, 552, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965)(giving speech and leading group
of protesters in song and prayer in opposition to segregation); Edwards v. South
Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697(1963)(peaceful march on
sidewalk around State House grounds in protest of discrimination); W. Va. State Bd.
ofEduc. V. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943)(refusing
to salute the American flag while saying pledge of allegiance); Stromberg v.
California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117(1931)(peaceful display of
red flag as a sign of opposition to organized government). Stutzman's conduct—
whether it is characterized as creating floral arrangements, providing floral
an"angement services for opposite-sex weddings, or denying those services for same-
sex weddings—is not like the inherently expressive activities at issue in these cases.
Instead, it is like the unprotected conduct in FAIR, 547 U.S. at 66.'^
Stutzman and amici point to a handful of cases protecting various forms of art—
and some of them do seem to provide surface support for their argument. See Br. of
Appellants at 6-7; Mot. for Leave to File Br. & Br. for Cato Inst. as Amicus Curiae in Supp.
of Appellants (Cato) at 7(citing Ward v. Rock Against Racism, 491 U.S. 781, 790-91, 109
S. Ct. 2746, 105 L. Ed. 2d 661 (1989)(music without words); Se. Promotions, Ltd. v.
Conrad,420 U.S. 546, 557-58,95 S. Ct. 1239,43 L. Ed. 2d 448(1975)(theater); Anderson
V. City ofHermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010)(tattooing); Piarowski v.
III. Cmty. Coll. Dist. 515, 759 F.2d 625, 627-28 (7th Cir. 1985)(stained glass windows on
display in an art gallery at a junior college)).
But, on closer examination, those cases do not expand the definition of"expressive
conduct." For example, Piarowski held that stained glass windows were protected in the
context of a college's demands that the artist move some of his pieces from a gallery to an
49
No. 91615-2
Finally, Stutzman asserts that even if her case doesn't fall neatly within the
contours of these prior holdings, we should nevertheless place her floral artistry
within a new, narrow protection. The "narrow" exception she requests would apply
to "businesses, such as newspapers, publicists, speechwriters, photographers, and
other artists, that create expression as opposed to gift items, raw products, or
prearranged [items]." Reply Br. of Appellants at 45. In her case, she proposes that
she would be willing to sell Mr. Ingersoll "uncut flowers and premade
arrangements." Id. at 46. But, as amicus Americans United for Separation of Church
and State points out, Stutzman's rule would create a "two-tiered system" that carves
out an enormous hole from public accommodations laws: under such a system, a
"dime-store lunch counter would be required to serve interracial couples but an
upscale bistro could turn them away." Br. of Amicus Curiae Ams. United in Supp.
of Resp'ts at 13. Indeed, the New Mexico Supreme Court also grappled with this
question, ultimately finding that "[cjourts cannot be in the business of deciding
which businesses are sufficiently artistic to warrant exemptions from
antidiscrimination laws," and noting that this concern was hardly hypothetical in
alternate location on campus because they were objected to as "sexually explicit and
racially offensive." 759 F.2d at 632. And the Anderson court reached its finding that
tattoos receive First Amendment protections by pointing out that they "are generally
composed of words, realistic or abstract images, symbols, or a combination of these, all of
which are forms of pure expression that are entitled to full First Amendment protection."
621 F.3d at 1061. Stutzman's floral arrangements do not implicate any similar concerns.
50
No. 91615-2
light of the proliferation of cases requesting exceptions for "florists, bakeries, and
other wedding vendors" who refused to serve gay couples. Elane Photography, 309
P.3dat71.
Because Stutzman's sale of floral arrangements is not expressive conduct
protected by the First Amendment, we affirm the trial court and hold that the WLAD
does not violate free speech protections as applied to Stutzman in this case.
ii. Stutzman does not argue that article I, section 5 of the Washington
Constitution provides any greater protection than the First
Amendment in this context; we therefore affirm the trial court's ruling
that no article I, section 5 violation occurred in this case
Stutzman asserts violations of both state and federal free speech constitutional
provisions, though she does not distinguish between them.
As the superior court correctly points out, we interpret article I, section 5
independently from the First Amendment. Bradburn v. N. Cent. Reg 7Library Dist.,
168 Wash. 2d 789, 800, 231 P.3d 166 (2010). In some cases, we have found article I,
section 5 to be more protective than its federal counterpart, and in some cases, we
have held the two to contain equivalent protections. Id. In this case, however,
Stutzman has not assigned error to the superior court's use of a First Amendment
analysis rather than a separate state constitutional analysis. We therefore decline to
reach the issue of whether article I, section 5 rights in this context are coextensive
with First Amendment rights.
51
No. 91615-2
C. As Applied in This Case, the WLAD Does Not Violate Stutzman's
Right to Religious Free Exercise under the First Amendment to the
United States Constitution
In her second constitutional claim, Stutzman argues that the WLAD, as
applied to her in this case, violated her First Amendment right to religious free
exercise. We disagree.
The free exercise clause of the First Amendment, which applies to the States
through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303,60
S. Ct. 900, 84 L. Ed. 1213 (1940), provides that "Congress shall make no law
respecting an establishment of religion or prohibiting the free exercise thereof."
Laws that burden religion are subject to two different levels of scrutiny under the
free exercise clause. Neutral, generally applicable laws burdening religion are
subject to rational basis review,^® while laws that discriminate against some or all
religions (or regulate conduct because it is undertaken for religious reasons) are
subject to strict scrutiny.^'
Stutzman argues that the WLAD is subject to strict scrutiny under a First
Amendment free exercise analysis because it is neither neutral nor generally
applicable. She is incorrect.
Emp'tDiv., Dep't ofHuman Res. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L.
Ed. 2d 876 (1990).
Lukumi Babalu Aye, 508 U.S. at 532.
52
No. 91615-2
A law is not neutral for purposes ofa First Amendment free exercise challenge
if "the object of [the] law is to infringe upon or restrict practices because of their
religious motivation." Lukumi Babalu Aye, 508 U.S. at 533 (emphasis added).
Stutzman does not argue that our legislature passed the WLAD in order to target
religious people or people whose religions dictate opposition to gay marriage.
Instead, she argues that the WLAD is unfair because it grants exemptions for
"religious organizations""—^permitting these organizations to refuse marriage
services—but does not extend those same exemptions to her. Br. of Appellants at
37.
We disagree. The cases on which Stutzman relies all address laws that single
out for onerous regulation either religious conduct in general or conduct linked to a
particular religion, while exempting secular conduct or conduct associated with
other, nontargeted religions. E.g., Lukumi Babalu Aye, 508 U.S. at 532-42(law was
not neutral where legislative history, including enactment of numerous exemptions
for members of other religions, evidenced a clear intent to target practitioners of
See RCW 26.04.010(6)("A religious organization shall be immune from any eivil
elaim or cause of action, including a claim pursuant to chapter 49.60 RCW, based on its
refusal to provide accommodations, facilities, advantages, privileges, services, or goods
related to the solemnization or celebration of a marriage."). "Religious organization" is
defined as including, "but . . . not limited to, churches, mosques, synagogues, temples,
nondenominational ministries, interdenominational and ecumenical organizations, mission
organizations, faith-based social agencies, and other entities whose principal purpose is the
study, practice, or advancement of religion." RCW 26.04.010(7)(b).
53
No. 91615-2
Santeria faith). They recognize that the "[t]he Free Exercise Clause forbids any
regulation of beliefs as such," and that this unconstitutional regulation may
sometimes be accomplished through a law that appears facially neutral. Blackhawk
V. Pennsylvania, 381 F.3d 202, 208-09(3d Cir. 2004). But blanket exemptions for
religious organizations do not evidence an intent to target religion. Instead, they
indicate the opposite. Corp. ofPresiding Bishop ofChurch ofJesus Christ ofLatter-
Day Saints v. Amos,483 U.S. 327, 335-38, 107 S. Ct. 2862,97 L. Ed. 2d 273(1987)
(exemption in Civil Rights Act of 1964, 42 U.S.C. § 2000e, for religious
organizations does not violate the establishment clause because it serves a secular
purpose—to minimize governmental interference with religion—and neither
advances nor inhibits religion); Elane Photography,309 P.3d at 74-75("Exemptions
for religious organizations are common in a wide variety of laws, and they reflect
the attempts of the Legislature to respect free exercise rights by reducing legal
burdens on religion.").
Stutzman also argues that the WLAD is not "generally applicable" because it
does not apply to businesses that employ fewer than eight persons, employees
working for a close family member or in domestic service, people renting out certain
multifamily dwellings, and distinctly private organizations.
Again, the authority Stutzman cites is inapposite. That authority stands for
two principles, neither of which is implicated here.
54
No. 91615-2
First, a law may fail the "general applicability" test, and thus trigger strict
scrutiny, if it adopts a patchwork of specific exemptions that conspicuously omits
certain religiously motivated conduct. As with nonneutral laws, such an omission is
evidence that the government has deliberately targeted religious conduct for onerous
regulation, or at the very least devalued religion as a ground for exemption. Lukumi
Babalu Aye,508 U.S. at 544-46(holding that ordinance was not generally applicable
because it "pursues the city's governmental interests only against conduct motivated
by religious belief (emphasis added)); Fraternal Order ofPolice Newark Lodge
No. 12 V. City ofNewark, 170 F.3d 359, 365-66 (3d Cir. 1999)(police department
policy prohibiting officers from wearing beards triggered strict scrutiny because it
allowed individual exemptions for medical but not religious reasons; because the
medical exemption undermined the policy's purpose—to create uniformity of
appearance among its officers—just as much as a religious exemption would, the
disparity evidenced the department's preference for medical (secular) objections
over religious ones).
Second, a law is not "generally applicable" if it permits individual exemptions
but is then applied in a manner that is needlessly prejudicial to religion. Lighthouse
Inst.for Evangelism, Inc. v. City ofLong Branch, 510 F.3d 253, 276 (3d Cir. 2007)
("What makes a system of individualized exemptions suspicious is the possibility
that certain violations may be condoned when they occur for secular reasons but not
55
No. 91615-2
when they occur for religious reasons. In Blackhawk, it was not the mere existence
of an exemption procedure that gave us pause but rather the fact that the
Commonwealth could not coherently explain what, other than the religious
motivation of Blackhawk's conduct, justified the unavailability of an exemption."
(citing Blackhawk, 381 F.3dat211)).
In this case, Stutzman seeks an exemption that would allow her to refuse
certain customer services to members of a WLAD-protected class on religious
grounds. Under a First Amendment free exercise analysis, the WLAD would trigger
strict scrutiny if it permitted that sort of discrimination only for nonreligious reasons,
and thus indicated the government's preference for secular discrimination. But the
WLAD does not do this.
Three of the alleged "exemptions" Stutzman cites have nothing at all to do
with the exemption she seeks (an exemption permitting discrimination in public
accommodations). The exemption for "[people] renting [out] certain multifamily
dwellings," Br. of Appellants at 38 (citing ROW 49.60.040(5)), is not really an
exemption from the WLAD at all. RCW 49.60.040(5) defines a "covered
multifamily dwelling" to exclude all buildings with fewer than four units and certain
buildings with no elevators. In conjunction with RCW 49.60.222(2)(c), this
provision requires that"covered multifamily dwellings" be designed and constructed
in compliance with state and federal disability access laws. This is not a license for
56
No. 91615-2
certain landlords to discriminate. With respect to public accommodations, the same
is true of the WLAD's "exemptions" for individuals employed in domestic service
or by family members and for "employers" with fewer than eight employees. See
Br. of Appellants at 38(citing RCW 49.60.040(10),(11)). These exemptions protect
employers from WLAD liability as employers—that is, liability to their
employees—in the context offamily relationships, domestic service, and very small
businesses; they have nothing to do with Stutzman's liability as the proprietor of a
public accommodation. Compare RCW 49.60.180 (listing prohibited "[u]nfair
practices of employers," all of which discriminate against employees or potential
employees—not customers), with RCW 49.60.215 (listing prohibited "[ujnfair
practices of places of public resort, accommodation, assemblage, amusement";
completely omitting any reference to "employers"). Thus, these exemptions are
distinguishable from the exemptions at issue in Lukumi Babalu Aye, Blackhawk, or
Fraternal Order of Police because none is an exemption that Stutzman would
actually like to invoke.
And the other "exemption" Stutzman identifies—for distinctly private
organizations, Br. of Appellants at 38 (citing RCW 49.60.040(2))—does not
undermine the purposes of the WLAD's public accommodations provision: to
prevent discrimination in public accommodations. Thus, it does not trigger strict
scrutiny under a First Amendment free exercise analysis either. Fraternal Order of
57
No. 91615-2
Police, 170 F.3d at 366 (contrasting exemptions that undermine a law's purpose—
and thus trigger strict scrutiny—with exemptions for "activities that [the
government] does not have an interest in preventing"; holding that police
department's exemption permitting undercover officers to wear beards did not
trigger strict scrutiny because the governmental interest served by the shaving
requirement—making officers readily recognizable as officers—did not apply to
undercover officers).
For these reasons, we reject Stutzman's claim that the WLAD, as applied to
her, triggers strict scrutiny under the free exercise clause of the First Amendment.
The WLAD is a neutral, generally applicable law subject to rational basis review.
Emp't Div., Dep't ofHuman Res. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L.
Ed. 2d 876 (1990). And the WLAD clearly meets that standard: it is rationally
related to the government's legitimate interest in ensuring equal access to public
accommodations. See Lighthouse, 510 F.3d at 277 (to withstand free exercise
challenge, neutral, generally applicable law "must be reasonable and not arbitrary
and it must bear 'a rational relationship to a [permissible] state objective'"(alteration
in original)(quoting Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed.
2d 797(1974))).
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No. 91615-2
D. As Applied in This Case,the WLAD Did Not Violate Stutzman's Right
to Religious Free Exercise under Article I, Section 11 of the
Washington Constitution
i. This court has applied strict judicial scrutiny to certain article I,
section 11 claims
Stutzman also raises a state constitutional challenge to the WLAD as applied
to her religiously motivated conduct in this case. Article I, section 11 of the
Washington Constitution provides, in relevant part:
Absolute freedom of conscience in all matters of religious sentiment,
belief and worship, shall be guaranteed to every individual, and no one
shall be molested or disturbed in person or property on account of
religion; but the liberty of conscience hereby secured shall not be so
construed as to excuse acts of licentiousness or justify practices
inconsistent with the peace and safety of the state.
Obviously, this language differs from the language of the First Amendment's free
exercise clause.
In the past, however, we interpreted article I, section 11 to provide the same
protection as the First Amendment's free exercise clause. See First Covenant
Church ofSeattle v. City ofSeattle, 114 Wn.2d 392,402,787 P.2d 1352(1990){First
Covenant I), vacated and remanded, 499 U.S. 901, 111 S. Ct. 1097, 113 L. Ed. 2d
208(1991). Thus,for many years this court relied on First Amendment free exercise
case law in article I, section 11 challenges and applied strict scrutiny to laws
burdening religion. Id. (law burdening religion must serve "compelling state
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No. 91615-2
interest" and "constitute[] the least restrictive means to achieve the government's
objective"(citing Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965
(1963); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972);
Hohhie v. Unemployment Appeals Comm'n, 480 U.S. 136, 107 S. Ct. 1046, 94 L.
Ed. 2d 190(1987))).23
In 1990, however, things changed. That was the year that the United States
Supreme Court adopted rational basis review for claims that neutral, generally
applicable laws (like the WLAD)incidentally burden religion in Smith, 494 U.S. at
878-90. Smith definitively repudiated strict scrutiny for neutral, generally applicable
laws prohibiting "socially harmful conduct." Id. at 884-85. It reasoned that applying
heightened scrutiny—which requires a balancing of governmental against personal
interests—would pose two problems. Id. First, it would vitiate the state's ability to
regulate, allowing every individual '"to become a law unto himself.'" Id. at 885
{apLO\mgReynolds v. United States,98 U.S.(8 Otto) 145, 167,25 L. Ed. 244(1878)).
Some scholarship distinguishes between the "compelling interest" test and "strict
scrutiny." E.g., Stephen A. Siegel, The Origin of the Compelling State Interest Test and
Strict Scrutiny, 48 Am. J. Legal Hist. 355, 359-60 (2008)(describing the "compelling
interest" standard as one of three barriers that legislation must overcome under strict
scrutiny). But this court has always treated them as synonymous in religious free exercise
cases. E.g., Backlund, 106 Wash. 2d at 641 ("Since [the plaintiffs] beliefs are protected by
the free exercise clause of the First Amendment, the burden of proof shifts to the Board to
prove that (1) a compelling governmental interest justifies the regulation in question and
(2) the regulation is the least restrictive imposition on the practice of his belief to satisfy
that interest." (citing United States v. Lee, 455 U.S. 252, 257, 102 S. Ct. 1051, 71 L. Ed.
2d 127(1982); State v. Meacham, 93 Wash. 2d 735, 740, 612 P.2d 795 (1980))).
60
No. 91615-2
Second, it would entangle civil courts in religion by requiring them to evaluate the
significance of a particular practice to a faith. Id. at 887("[r]epeatedly and in many
different contexts, we have wamed that courts must not presume to determine the
place ofa particular belief in a religion or the plausibility of a religious claim"). The
Smith Court reasoned that such a balancing test would be incompatible with the
religious pluralism that is fundamental to our national identity. Id. at 888.
Smith's holding is limited in two ways. First, it left in place prior First
Amendment case law applying the "compelling interest" balancing test where the
statute in question "lent itself to individualized . . . assessment"—e.g., an
unemployment benefits statute under which an administrative court determines, on
a case-by-case basis, whether a person was fired for good cause. Id. at 884. In such
cases, the Court explained that "the State [already] has in place a system of
individual exemptions"—^thus, the challenged law is not "generally applicable" for
purposes of First Amendment free exercise analysis. Id. Where an individual
requests a religious exemption from such a law, the government must have a
compelling reason for denying it. Id. Second, the Smith Court distinguished cases
involving "hybrid" claims—e.g., challenges to laws that burdened both religious
freedom and another right such as free speech. Id. at 881 (collecting cases).
We revisited our article I, section 11 test following Smith in First Covenant
Church of Seattle v. City of Seattle, 120 Wash. 2d 203, 840 P.2d 174 (1992)(First
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No. 91615-2
Covenant II). In that case, the plaintiff church argued that its designation as a
historical landmark(subject to "controls" limiting alterations to its building)violated
both First Amendment and article I, section 11 protections. Id. at 208-09. In First
Covenant I, we applied strict scrutiny to both constitutional challenges and held that
the zoning law was unconstitutional. 114 Wash. 2d at 401-02, 410. On remand from
the United States Supreme Court following Smith, we addressed the state and federal
free exercise claims again. Regarding the First Amendment claim, the First
Covenant II court held that the challenged statute fell within both of the exceptions
to rational basis review recognized in Smith: it created a system of"individualized
assessments" and it raised "hybrid" constitutional concerns(by restricting speech as
well as religious free exercise). 120 Wash. 2d at 214-17. The court therefore held that
the historical landmark statute was subject to strict scrutiny under the First
Amendment. M at 217-18.
But after determining that the statute failed strict scrutiny as applied to the
plaintiff church—because a city's purely aesthetic or cultural interest in preserving
historical landmarks is not compelling—^the First Covenant II court went on to
separately analyze the church's article I, section 11 claim. Id. at 223("The possible
loss of significant architectural elements is a price we must accept to guarantee the
paramount right of religious freedom . . . [and] [ajlthough we might . . . base our
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No. 91615-2
decision solely on federal grounds, we decline to do so."). It performed a GunwalP-^
analysis and concluded that article I, section 11 "extends broader protection than the
[Fjirst [A]mendment . . . and precludes the City from imposing [the disputed]
Landmarks Preservation Ordinance on First Covenant's church." Id. at 229-30.
Since that time, our court has addressed four article I, section 11 claims—all
by churches challenging land use regulations"—and has subjected the challenged
law to strict scrutiny in each case. Thus, both before and after Smith and First
Covenant II, we have applied the same four-pronged analysis in an article I, section
11 challenge: where a party has (1) a sincere religious belief and (2)the exercise of
that belief is substantially burdened by the challenged law, the law is enforceable
against that party only if it(3)serves a compelling government interest and(4)is the
least restrictive means of achieving that interest. City of Woodinville v. Northshore
United Church ofChrist, 166 Wash. 2d 633, 642, 211 P.3d 406 (2009); Backlund, 106
State V. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986). A Gunwall analysis
determines whether a state eonstitutional provision is more protective than its federal
eounterpart by considering six nonexelusive faetors:(1)the text of the state eonstitutional
provision at issue,(2) significant differences between the text of parallel state and federal
constitutional provisions,(3) state constitutional and common law history, (4) state law
predating the state constitution, (5) structural differences between the state and federal
constitutions, and (6) matters of particular state or local concern. Id. at 61-62.
City of Woodinville v. Northshore United Church ofChrist, 166 Wash. 2d 633,644-
45, 211 P.3d 406 (2009); Open Door Baptist Church v. Clark County, 140 Wash. 2d 143,
156-60, 995 P.2d33 (2000); v. Martin, 131 Wash. 2d 192, 195, 930 P.2d 318 (1997);
First United Methodist Church ofSeattle v. Hr'g Exam 'rfor Seattle Landmarks Pres. Ed.,
129 Wash. 2d 238, 249-50, 252-53, 916 P.2d 374(1996).
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No. 91615-2
Wn.2d at 641. And we have specifically held—in the context ofa church's challenge
to a zoning law—^that article I, section 11 is more protective ofreligious free exercise
than the First Amendment is. E.g., First Covenant II, 120 Wash. 2d at 224 (applying
strict scrutiny to zoning ordinance as a matter of state constitutional law because
"[o]ur state constitutional and common law history support a broader reading of
article [I], section 11 than of the First Amendment").^®
The parties dispute the significance of these p" osl-Smith holdings to this case.
Ingersoll and the attorney general argue that they are limited to zoning laws, as
applied to churches, and thus make no difference to the outcome under our long
standing,four-pronged test. They maintain that a neutral health and safety regulation
like the WLAD creates no substantial burden on the free exercise of religion—and
thus does not trigger strict scrutiny—when it operates in the commercial
The attorney general correctly notes that this court has never held that a corporate
defendant such as Arlene's Flowers has a "conscience" or "sentiment" subject to article I,
section 11 protections. See Atf y Gen. Resp. Br. at 31 ("Indeed the plain language of article
1, section 11 guarantees its protections to 'every individual,' making no mention of
protection for businesses."); Atf y Gen.'s Answer to Brs. of Amici Curiae at 19 ("Neither
Defendants nor their amici point to any Washington authority to support the notion that
for-profit corporations are protected by article I, section 11."). But Stutzman argues only
that she may assert her own free exercise rights on behalf of her corporation. Br. of
Appellants at 32 n.24 ("'protecting the free-exercise rights of [closely held]
corporations . . . protects the religious liberty of the humans who own and control those
companies'" (emphasis added)(quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 707, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014))). Thus, we address only Stutzman's
individual claim that her article I, section 11 rights have been violated. We do not address
whether Arlene's Flowers (the corporation) has any such rights.
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No. 91615-2
marketplace. Stutzman contends that under First Covenant II and its progeny,"strict
scrutiny applies even if the regulation 'indirectly burdens the exercise of religion.'"
Br. of Appellants at 33 (quoting First Covenant II, 120 Wash. 2d at 226).
We decline to resolve that dispute here because we conclude that Stutzman's
free exercise claim fails even under the test she advances. Even if article I, section
11 provides Stutzman with the strongest possible protections, subjecting the WLAD
to strict scrutiny in this case, her state constitutional challenge must still fail.
ii. The WLAD survives strict scrutiny
In the decades before First Covenant II, this court upheld numerous health
and safety regulations under strict scrutiny—^the test that we then assumed was
required under the First Amendment. E.g., Backlund, 106 Wash. 2d at 641
(requirement that physician purchase professional liability insurance did not violate
First Amendment; State had a compelling interest in licensure requirement and the
requirement was "the least restrictive imposition on the practice of[the plaintiffs]
belief to satisfy that interest"); State v. Meacham, 93 Wash. 2d 735, 740-41, 612 P.2d
795 (1980) (court-ordered blood test for putative fathers did not violate First
Amendment; State had a compelling interest in securing child support and that
interest could not "be achieved by measures less drastic"); State ex rel. Holcomb v.
Armstrong, 39 Wash. 2d 860, 861, 863-64, 239 P.2d 545 (1952) (neither First
Amendment nor prior version of article I, section 11 barred mandatory tuberculosis
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No. 91615-2
testing as condition of admission to University of Washington; "the public interest
[served] is the health of all of the students and employees of the university[;] . . .
[t]he danger to this interest is clear and present, grave and immediate[, and] . . .
[i]nfringement of appellant's rights is a necessary consequence of a practical attempt
to avoid the danger"); see also State v. Clifford, 57 Wash. App. 127, 132-34, 787 P.2d
571 (1990) (law mandating that drivers be licensed does not violate First
Amendment; "[t]here is no less restrictive means available to satisfy the State's
compelling interest in regulating the driving of motor vehicles"). Like all ofthe laws
at issue in those cases, the WLAD's public accommodations provision is a neutral
health and safety regulation. Under our long-standing precedent, such laws satisfy
strict scrutiny in an article I, section 11 challenge.
To be sure, none of our previous article I, section 11 cases addressed an
antidiscrimination law. But numerous other courts have heard religious free exercise
challenges to such laws and upheld them under strict scrutiny. E.g., Swanner v.
Anchorage Equal Rights Comm'n, 874 P.2d 274, 281-83 (Alaska 1994)(in rental
housing context, state antidiscrimination law passed strict scrutiny—meaning that
defendants were not entitled to a religious exemption—because "[t]he government
views acts of discrimination as independent social evils even if the prospective
tenants ultimately find housing"; moreover, "[v]oluntary commercial activity does
not receive the same status accorded to directly religious activity"); State v. Sports
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No. 91615-2
& Health Club, Inc.,370 N.W.2d 844,852-54(Minn. 1985)(in employment context,
state antidiscrimination law passed strict scrutiny in religious free exercise challenge
because "[t]he state's overriding compelling interest of eliminating discrimination
based upon sex, race, marital status, or religion could be substantially frustrated if
employers, professing as deep and sincere religious beliefs as those held by
appellants, could discriminate against the protected classes"); N. Coast Women's
Care Med. Grp., Inc. v. Superior Court, 44 Cal. 4th 1145, 1158-59, 189 P.3d 959,
81 Cal. Rptr. 3d 708(2008)(assuming that strict scrutiny applied as a matter of state
constitutional law, it would not invalidate statute barring discrimination on the basis
of sexual orientation as applied to fertility clinic with religious objections to helping
gay patients conceive; "[t]he Act furthers California's compelling interest in
ensuring full and equal access to medical treatment irrespective ofsexual orientation,
and there are no less restrictive means for the state to achieve that goal"(citing Cal.
ClV. Code § 51)); Gay Rights Coal, of Georgetown Univ. Law Ctr. v. Georgetown
Univ., 536 A.2d 1, 31-39 (D.C. 1987)(District of Columbia's Human Rights Act,
former D.C. CODE § 1-2520(1981), recodifiedas D.C. CODE § 2-1402.41, as applied
to prohibit defendant university from denying equal recognition and support to gay
student groups, survived strict scrutiny in university's ^VQ-Smith free exercise
challenge; "[t]o tailor the Human Rights Act to require less of the University than
equal access to its 'facilities and services,' without regard to sexual orientation,
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No. 91615-2
would be to defeat its compelling purpose[:] [t]he District of Columbia's overriding
interest in eradicating sexual orientation discrimination, if it is ever to be converted
from aspiration to reality, requires that Georgetown equally distribute tangible
benefits to the student groups"); see also Bob Jones Univ., 461 U.S. at 602-04
(federal government's denial of tax exempt status to schools that enforced
religiously motivated racially discriminatory policies survived strict scrutiny; "the
Government has a fundamental, overriding interest in eradicating racial
discrimination in education . . . [, and] [tjhat . . . interest substantially outweighs
whatever burden denial of tax benefits places on petitioners' exercise of their
religious beliefs"). Indeed, we are not aware of any case invalidating an
antidiscrimination law under a free exercise strict scrutiny analysis.
Nevertheless, Stutzman argues that strict scrutiny is not satisfied in this case.
She reasons that since other florists were willing to serve Ingersoll, no real harm will
come from her refusal. And she maintains that the government therefore can't have
any compelling interest in applying the WLAD to her shop. In other words,
Stutzman contends that there is no reason to enforce the WLAD when, as she puts
it, "[N]o access problem exists." Br. of Appellants at 46.
We emphatically reject this argument. We agree with Ingersoll and Freed that
"[tjhis case is no more about access to flowers than civil rights cases in the 1960s
were about access to sandwiches." Br. ofResp'ts Ingersoll & Freed at 32. As every
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No. 91615-2
other court to address the question has concluded, public accommodations laws do
not simply guarantee access to goods or services. Instead, they serve a broader
societal purpose: eradicating barriers to the equal treatment of all citizens in the
commercial marketplace. Were we to carve out a patchwork of exceptions for
ostensibly justified discrimination," that purpose would be fatally undermined.
In conclusion, we assume without deciding that strict scrutiny applies to the
WLAD in this article I, section 11 challenge, and we hold that the law satisfies that
standard.
E. As Applied in This Case, the WLAD Does Not Violate Stutzman's
Right to Free Association under the First Amendment to the United
States Constitution
Stutzman argues that the WLAD, as applied by the trial court in her case,
violates her First Amendment right to freedom of association. But to support that
argument, she relies exclusively on cases addressing membership in private clubs:
Boy Scouts ofAmerica v. Dale, 530 U.S. 640, 653, 120 S. Ct. 2446, 147 L. Ld. 2d
Stutzman argues that discrimination cannot be "invidious"—and thus subject to
governmental prohibition—if it is based on religious beliefs. Br. of Appellants at 40-43.
But she cites no relevant legal authority for this novel theory. In fact, the relevant legal
history is to the contrary. E.g., Piggie Park, 390 U.S. at 402 n.5. She also argues that the
government has no compelling interest in forcing her to speak or associate with Ingersoll
or any other customer. But, as explained elsewhere in this opinion, the WLAD does not
implicate Stutzman's rights of speech or association.
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No. 91615-2
554 (2000); Hurley, 515 U.S. at 574; and Roberts, 468 U.S. at 618." These cases
expressly distinguish a business' customer service (subject to generally applicable
antidiscrimination laws) from expressive conduct (protected from such laws by the
First Amendment). Dale, 530 U.S. at 648, 656-57("To determine whether a group
is protected by the First Amendment's expressive associational right, we must
determine whether the group engages in 'expressive association'";
antidiscrimination law violated the Boy Scouts' First Amendment freedom of
association in part because the Boy Scouts was a membership organization instead
of a "clearly commercial entit[y]."); Hurley, 515 U.S. at 572, 571 (state
antidiscrimination law at issue traditionally applied to "the provision of publicly
available goods, privileges, and services" by,"[a]t common law, innkeepers, smiths,
and others who 'made profession of a public employment'"; but it would be
"peculiar" to extend that law beyond the customer service context so that it applied
to the inherently expressive conduct of marching in a parade).
In fact, the United States Supreme Court has even held that states may enforce
antidiscrimination laws against certain private organizations, defined by particular
goals and ideologies, ifthe enforcement will not impair the group's ability to pursue
Stutzman also cites one case addressing speech: United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 818, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000).
Reply Br. of Appellants at 28. This opinion addresses Stutzman's free expression claim
elsewhere.
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No. 91615-2
those goals and espouse those ideologies. Roberts, 468 U.S. at 628 (even though
First Amendment protects private groups, those groups are subject to
antidiscrimination laws to the extent that enforcement "will [not] change the content
or impact of the organization's speech").
But the Supreme Court has never held that a commercial enterprise, open to
the general public, is an '"expressive association'" for purposes of First Amendment
protections, Dale, 530 U.S. at 648. We therefore reject Stutzman's free association
claim.
F. As Applied in This Case, the WLAD Does Not Violate Stutzman's
Constitutional Protections under the "Hybrid Rights" Doctrine
Stutzman also argues that the WLAD,.as applied to her in this case, triggers
strict scrutiny because it implicates "hybrid rights." Br. of Appellants at 40. As
noted above, a law triggers strict scrutiny if it burdens both religious free exercise
and another fundamental right such as speech or association. First Covenant II, 120
Wash. 2d at 217-18 ("[t]he less protective free exercise standard set forth in Smith . . .
does not apply because the case presents a 'hybrid situation': First Covenant's claim
involves the free exercise clause in conjunction with free speech"(citing Smith, 494
U.S. at 904 (O'Connor, J., concurring in judgment))). But Stutzman's claim fails
for two reasons. First, the only fundamental right implicated in this case is the right
to religious free exercise. Stutzman's rights to speech and association are not
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No. 91615-2
burdened. See supra Sections IV.B, E. Second, even if the WLAD does trigger
strict scrutiny in this case, it satisfies that standard. See supra Section IV.D.ii.
G. The Trial Court Did Not Err by Imposing Personal Liability on
Stutzman Instead of Solely on Her Corporation, Arlene's Flowers Inc.
In addition to finding that Stutzman violated the WLAD,the trial court also
found that Stutzman violated the CPA. This is because the WLAD provides that an
act of public accommodation discrimination is an "unfair practice" and a per se
violation ofthe CPA. RCW 49.60.030(3)." Stutzman concedes that if she violated
the WLAD,then Arlene's Flowers is liable for a CPA violation.
But Stutzman argues that she cannot be personally liable for violating the CPA
because (1) she kept her affairs separate from Arlene's Flowers' and (2) no
Washington court has ever applied the "responsible-corporate-officer doctrine"
outside the fraud context. Br. of Appellants at 49 (citing Grayson v. Nordic Constr.
Co., 92 Wash. 2d 548, 552-53, 599 P.2d 1271 (1979); One Pac. Towers Homeowners'
Ass'n V. HAL Real Estate Invs., Inc., 108 Wash. App. 330,347-48, 30 P.3d 504(2001),
aff'd in part and rev'd in part, 148 Wash. 2d 319, 61 P.3d 1094 (2002)).
The trial court also found that Stutzman's actions violated the CPA—because they
were an '"unfair or deceptive act or practice . . . occurring in trade or commerce, and
[impacting the] public interest'"—even if she did not also violate the WLAD. CP at 2634-
37(quoting State v. Kaiser, 161 Wash. App. 705, 719, 254 P.3d 850 (2011)). This ruling is
questionable, but because we conclude that Stutzman did violate the WLAD,and because
Stutzman did not assign error to this ruling in her opening brief, we do not address it.
72
No. 91615-2
The authority Stutzman cites does not support this argument. In Grayson,this
court held that the defendant could be personally liable for his company's CPA
violation even though there were no grounds for piercing the corporate veil. 92
Wash. 2d at 553-54. This directly contradicts Stutzman's theory that she cannot be
personally liable under the CPA unless she commingled her finances with Arlene's
Flowers'. And the other case, OnePac. Towers, 108 Wash. App. 330, does not address
a CPA claim.
On the other hand, there is long-standing precedent in Washington holding
that individuals may be personally liable for a CPA violation if they "participate[]
in the wrongful conduct, or with knowledge approve[] of the conduct." State v.
Ralph Williams' N.W. Chrysler Plymouth, Inc., 87 Wash. 2d 298, 322, 553 P.2d 423
(1976). Liability for such participation or approval does not depend on piercing the
corporate veil. Id. This is consistent with the CPA's plain language, which
authorizes the attorney general to bring an action "against any person to restrain and
prevent the doing of any act herein prohibited or declared to be unlawful," RCW
19.86.080(1) (emphasis added), and which defines "person" to include, "where
applicable, natural persons," as well as corporate entities, RCW 19.86.010(1).
Such individual liability does not constitute an application of, or expansion
of, the responsible corporate officer doctrine. That doctrine expands liability from
a corporation to an individual officer who would not otherwise be liable "where the
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No. 91615-2
officer stands 'in responsible relation to a public danger.'" Dep't of Ecology v.
Lundgren, 94 Wash. App. 236, 243, 971 P.2d 948 (1999)(quoting United States v.
Dottenveich, 320 U.S. Ill, 281,64 S. Ct. 134, 88 L. Ed. 48 (1943)). Here, the trial
court did not find Stutzman (the individual) vicariously or secondarily liable based
on conduct of Arlene's Flowers(the corporation). It found her liable because of acts
that she herself committed.
V. We previously ordered that any award of attorney fees and costs shall
include attorney fees and costs on appeal, and that order remains in effect
Respondents Freed and Ingersoll request an award of attorney fees and costs
on remand. After we issued our first opinion in this case, we ordered the trial court
to include attorney fees and costs on appeal in its award of attorney fees and costs to
Freed and Ingersoll. This order remains in effect; the trial court shall determine the
amount of attorney fees and costs on appeal.
Conclusion
The State of Washington bars discrimination in public accommodations on
the basis of sexual orientation. Discrimination based on same-sex marriage
constitutes discrimination on the basis of sexual orientation. We therefore hold that
the conduct for which Stutzman was cited and fined in this case—refusing her
commercially marketed wedding floral services to Ingersoll and Freed because theirs
would be a same-sex wedding—constitutes sexual orientation discrimination under
74
No. 91615-2
the WLAD. We also hold that the WLAD may be enforced against Stutzman
because it does not infringe any constitutional protection. As applied in this case,
the WLAD does not compel speech or association. And assuming that it
substantially burdens Stutzman's religious free exercise, the WLAD does not violate
her right to religious free exercise under either the First Amendment or article I,
section 11 because it is a neutral, generally applicable law that serves our state
government's compelling interest in eradicating discrimination in public
accommodations.
After careful review on remand, we are confident that the courts resolved this
dispute with tolerance, and we therefore find no reason to change our original
judgment in light of Masterpiece Cakeshop. We again affirm the trial court's
rulings.
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No. 91615-2
■ 'J
WE CONCUR:
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76