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Susan L.Carlson Suprenne CourtClarfc

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, V. ARLENE'S FLOWERS,INC,d/b/a 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. NO. 91615-2 EN BANC
Filed M (1 Fi



### GORDON McCLOUD,J.—The United States Supreme Court has tasked us with deciding whether the Washington courts violated the United States 

### Constitution's guaranty ofreligious neutrality in our prior adjudication ofthis 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 notactwith religious animus when they ruled thatthe floristand her corporation violated the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, by declining to sell wedding flowersto agay couple,and they did notactwith 

### 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 Courtvacated our originaljudgmentand 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 Courtheld thatthe 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 andArlene's Flowers "must 

### be resolved with tolerance,withoutundue disrespectto sincere religious beliefs,andNo. 91615-2



### 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 Wn.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 ofMasterpiece Cakeshop. 

### The dispute we resolve today is the same as the dispute that formed the basis 

### forouroriginal opinion.' The State ofWashington barsdiscriminationin "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 Wn.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 Ingersollbecause 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 thatifthey 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 ofArlene's Flowersand Stutzman's claims. Wegranted review,and in our earlier opinion,we affirmed. The United States Supreme Court then granted appellants' petition for a writ ofcertiorari, 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 ofthis remand. And we reject appellants' suggestion that the permanent injunction requires them to "personally attend and participate in same-sex weddings." Br. ofAppellants (Nov. 13, 2018) at 25. As the superior court carefully noted, "The degree to which [Stutzman]voluntarily involves herselfin an event. . .is not before the Court"andNo. 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 ofour 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 ofwhom is herself. Stutzman knew thatIngersoll 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.
5No. 91615-2



### Stutzman is an active member of the Southern Baptist church. It is 

### uncontested that her sincerely held religious beliefs include a beliefthat 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. Ingersolltold anArlene'sFlowers employeethathe wasengagedto 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 flowersforhis 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 ofother 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 "favoriteRichland 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 notfit]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 ofnumerous 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 thatin light ofincreasing public attention—some ofwhich 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 modestNo. 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 offlorists offered to provide them wedding flowers free ofcharge. Stutzman alsoreceived agreatdeal ofattention from thepublicity 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 notto 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 ifhe were asking her only to replicate aprearranged bouquetfrom a picture book ofsample arrangements. She believes thatparticipating,or allowing any employee ofher store to participate,in a same-sex wedding byproviding custom 8No. 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 notbe tantamountto endorsing those systems ofbelief. 

### 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 ofher immediate family)during the pendency of this case. ProceduralHistory 

### After the State became aware ofStutzman'srefusal 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 ofDiscontinuance," whichNo. 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 reliefunder the 

### CPA and the WLAD againstboth 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. Theparties 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 {seeRCW 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 10No. 91615-2



### violations. CP at 2566-600. Next, the court made five constitutional rulings. It concluded thatthe application ofthe 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 notviolate 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 ofthe Washington Constitution. Id. at 2601-60. Stutzman appealed directly to this court, assigning error to all seven ofthose 

### rulings. We granted direct review. Order,Ingersoll v. Arlene's Flowers, Inc.,No. 91615-2 (Wash. Mar. 2, 2016). With respect to most ofthe 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 "freeexercise rights are synonymous with Mrs.Stutzman's." Br.ofAppellants (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.ofResp'ts at 8 (alteration in original)(quoting Grayson v. Nordic Constr. Co., Inc., 92 Wn.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 ofits shareholders, officers, and employees. Even assuming the rights are 11No. 91615-2

separate defense: she argues that even if Arlene's Flowers is liable for the CPA violation,she cannot bepersonally liable for a violation ofthat statute. 

### In our original opinion, we affirmed the trial court's rulings. Arlene's 

### Flowers, 187 Wn.2d at 856. Appellants then petitioned the United States Supreme Court for a writ of certiorari, seeking review oftheir federal free speech and free 

### exercise claims. Pet.for Writ ofCert.,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 ofMasterpiece Cakeshop.'" Arlene's Flowers, 138 S. Ct. 2671. 

### The parties, as well as several other interested organizations and individuals 

### (amici curiae),have fully briefed whatthey 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 argumentbefore 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 ofthis case on remand. 12No. 91615-2



### claiming "that other aspects ofher involvement in weddings are speech,including singing, standing for the bride, clapping to celebrate the marriage, and in one 

### instance counselingthebride." CP at2347n.23. Butasthe superiorcourtexplained. Tellingly,Stutzman doesnotclaim thatshe 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. Thedegreeto which shevoluntarily involves herself in an event outside the scope of services she must 

### provide to all customers on a non-discriminatory basis (ifshe 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 forjudicial notice,as did the State ofWashington. 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 courtthathad rendered 

### its decision withoutthe benefit ofan intervening clarification to have an opportunity to reconsider that decision and, if warranted, to revise or correct it." Gonzalez v. 

### Justices ofMun. Court, 420 F.3d 5, 7 (1st Cir. 2005). "Consequently, we do not treatthe Court's GVR order as a thinly-veiled direction to alter course . . . ." Id.',see 13No. 91615-2



### also Wrightv. Florida,256 So.3d 766,770(Fla.2018)("[W]e will not guess atthe 

### implied intentions ofthe 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 lightofMasterpiece Cakeshop.'" Arlene'sFlowers, 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 mustremain 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 ofhis 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 acharge with the Colorado CivilRights Commission (Commission),id,a state adjudicatory body "charged with the solemn responsibility of fair and neutral enforcement ofColorado's antidiscrimination law," id. at 1729. The couple alleged that the shop owner had illegally discriminated against them "on the basis ofsexual 

### orientation." Id. at 1723. The Commission ruled in the couple's favor, and the Colorado courts affirmed. Id.

14No. 91615-2

At the Supreme Court, Phillips argued that Colorado violated his First 

### Amendmentrights by requiring him "to use his artistic skills to make an expressive statement,a wedding endorsement in his own voice and ofhis 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 ofhis own personal expression for their message,a message he could not express in a way consistent with his religious beliefs." Id. The Courtfound the baker's "dilemma . . .particularly understandable" 

### given that Colorado did not yet "recognize the validity ofgay 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 generalrule 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. of Boston, 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 thatthe shop owners'defense in that case—^thatthe Civil Rights Act of 1964, 15No. 91615-2

42 U.S.C. § 2000e, '"constitutes an interference with the free exercise of the 

### Defendant's religion'"—was "patently frivolous." PiggiePark,390 U.S.at 402n.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 ifa 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 ofgoods and services that went beyond any protected rights ofa 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 ofthe clergy who objects to gay marriage on moral and religious grounds 

### could not be compelled to perform the ceremony without denial ofhis or her right to the free exercise ofreligion." Id. at 1727. Butthe Court observed the narrowness ofsuch an exception: 

### Yet ifthat exception were not confined,then a long list ofpersons who provide goods and services for marriages and weddings mightrefuse 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,

16No. 91615-2



### any decision in favor of the baker would have to be sufficiently 

### constrained,lest all purveyors ofgoods and services who objectto gay 

### marriages for moral and religious reasons in effectbe allowed to putup signs saying "no goods or services will be sold ifthey 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 ofat least two principles." Id. at 1723. "The first is the authority of
a State and its governmental entities to protect the rights and dignity ofgay 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 underthe FirstAmendment,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

17No. 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 ofthe First Amendment in two respects: two ofits members made 

### disparaging comments about religion and it treated similarly situated parties differently. We address each ofthose holdings below. 

### A. Members ofan Adjudicatory Body MayNotDisparage the Religion of a Party Before It The Supreme Court observed that two of the seven commissioners on the 

### Commission "endorsed the view thatreligious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are lessthan fully welcome in Colorado's business community." Id. at 1729. 

### The Court took particular issue with the following statement made by a commissioner: "Freedom ofreligion 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 ofthe 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 18No. 91615-2

Commission charged with the solemn responsibility offair and neutral enforcement 

### ofColorado's antidiscrimination law—a law that protects against discrimination on the basis ofreligion 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'sdecision did notmention 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 ofthe Commission's adjudication ofPhillips' case." Id. at 1730. B. An Adjudicatory Body MustTreat Similarly Situated Parties Equally The Court also discussed "the difference in treatment" between Phillips' case and the cases ofthree otherbakers whorefused,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

19No. 91615-2



### Civil Rights Division'^ "found that the baker acted lawfully in refusing service," id. at 1730. The Supreme Courtheld that "the Commission's consideration ofPhillips' religious objection did not accord with its treatment ofthese other objections." Id. II. Masterpiece Cakes hop does not affect our original decision because the adjudicatory bodies tasked with deciding this case remained neutral Throughoutthe course ofthis litigation,appellants have never alleged thatthe adjudicatory bodies tasked with deciding this case failed to remain neutral. Since 

### the argumenthas never been made,we had no reason to discuss in our first opinion the importance ofaneutral adjudicatory body or to comb the record for signs ofbias 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 notmake such a claim because the record would not supportit. Indeed, the record reveals that the courts remained neutral "in all of the circumstances in which this case waspresented,considered,and decided." Id. at 1732. In its decision, the Benton County Superior Court acknowledged that "Stutzman has a sincerelyheld 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 meritto the Commission. Masterpiece Cakeshop, 138 S.Ct. at 1725. 20No. 91615-2



### statement," and the superior court refused to "inquire further in the matter." CP 2355. In fact,the superior court went out ofits 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 Wn.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 ofMasterpiece Cakeshop,appellants attempt to stretch its holding beyond recognition and to relitigate issues resolved in our first opinion and outside the scope ofMasterpiece Cakeshop. We reject this attempt and instead comply with the Supreme Court's explicit mandate to "further consider[]"

21No. 91615-2

our original judgment "in light ofMasterpiece 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 takejudicial notice This court will grant a motion to supplement the record or to take judicial notice only iftheproposed supplemental materials are relevantto 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 to

fairly resolve the issues on review,""theadditional evidence would probably change the decision being reviewed," and '77 would be inequitable to decide the casesolely on the evidence already taken in the trialcourt." RAP 9.11(a) (emphasis added). Ifthe additional evidence is irrelevant,it is notneeded 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, &MunicipalEmployees,Council SI, U.S. , 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018), and National Institute ofFamily & Life Advocates v. Becerra, U.S. , 138 S. Ct. 2361,201 L. Ed. 2d 835 (2018). Both ofthose opinions were issued after the Supreme Courtremanded this case,and therefore both are outside the scope ofthe remand. Even ifwe were to consider those cases,neither involves the type of public accommodations statute at issue here or inMasterpiece Cakeshop. AsMasterpiece Cakeshop observes, "The outcome of cases like this in other circumstances must await further elaboration in the courts." 138 S.Ct.at 1732. Neither norBecerra provides further elaboration. 22No. 91615-2



### under our Evidence Rules—but only ifthose 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 writofcertiorari. In thatunrelated incident,appellants claim that "the owner ofBedlam Coffee in Seattle expelled a group ofChristian 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 supplementthe record or for this court 

### to take judicial notice ofsupplemental 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 amore complete picture ofthe incidentdescribed." Resp't State ofWash.'s Mot.to Suppl.R.or for JudicialNotice 

### at 3-4. For their part,respondents Ingersoll and Freed argue that "the other parties' proposed supplemental materials are irrelevant." Br. ofResp'ts Ingersoll & Freed
on Remand from the U.S. Supreme Ct.(Jan. 14,2019)at 13 n.3. 23No. 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 mustremain neutral. That 

### Courtwas explicitly sensitive to the contextin which the lack ofneutrality 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. ofChurch-State Scholars as 

### Amici Curiae in Supp. ofPls.-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 ofMasterpiece Cakeshop mightmake additional evidence about a lack ofneutrality on behalfofthe 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 ofneutrality on behalfof 

### the attorney for one ofthe parties,the attorney general ofthe State ofWashington. It would take a broad expansion of Masterpiece Cakeshop to apply its holding—thattheadjudicatorybodyhearing a case mustshow religiousneutrality— 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
24No. 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 ofGrounds for DirectReview 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 ofbiased 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 ofwhich 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 ofregularity, 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).

25No. 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 of LukumiBahalu 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 LukumiBahalu 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. Againstthis backdrop,we decline to recognize the carve-outrequested by appellants but missing from any controlling precedent. 

### Even ifappellants were correct,they fail to recognize that only one ofthe two 

### consolidated cases before us would be affected. The attorney generalwasnotaparty 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 thatAew York Times Co.v. Sullivan,376 U.S.254,84 S.Ct.710, 718, 11 L.Ed.2d 686 (1964),suggests otherwise. Reply Br.ofAppellants(Feb. 13,2019) 26No. 91615-2



### In any event, we decline to expansively read Masterpiece Cakeshop to encompass the "very different context" ofexecutive branch discretion. We do not 

### believe that the Supreme Court intended to silently overturn any of its selectiveenforcement 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 ofeither 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 ofthis 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 exhibitreligious neutrality. Appellants argue thatMasterpiece Cakeshop's holding extends to the executive branch and thatthe attorney general failed to act with the required neutrality. Even ifthat 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. 27No. 91615-2



### IV. Because the Washington courts resolved this dispute with tolerance, we find no reason to alter our original opinion 

### Asnoted above,this case presents both statutory and constitutional questions. Both are reviewed de novo. Williams v. Tilaye, 174 Wn.2d 57, 61, 272 P.3d 235 

### (2012)("[sjtatutory interpretation is a question of law reviewed de novo" (citing State V. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003))); Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494,503, 198 P.3d 1021 (2009)(appellate court "review[s] all constitutional challenges de novo" (citing State v. Jones, 159 Wn.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 courtruled that Stutzman violated RCW 49.60.215,which prohibits discrimination in the realm ofpublic accommodations. That statute provides: (1) It shall be an unfair practice for any person or the person's agent or employee to commitan act which directly or indirectly results in any distinction,restriction,or discrimination,or the requiring ofany 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, 28No. 91615-2



### exceptfor 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. Lawsof 2006,ch.4,§ 13. 

### The WLAD defines places of public accommodation to include places maintained "for the sale ofgoods, 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, butnot in the context ofpublic 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 plaintiffmust establish four elements: (1)

29No. 91615-2



### that the plaintiffis a member ofa 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 againstthe 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 TransitAuth., 128 Wn.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. ofAppellants at 19-21.^ She offers three arguments in support of this interpretation ofthe statute. 

### First,Stutzman argues thatifshe discriminated againstIngersoll,it was on the 

### basis ofhis "marital status," not his "sexual orientation." Br. ofAppellants 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 oftheir 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 ofher religious convictions.

30No. 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 ofthe 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 thatthe 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 againstthose who marry members ofthe same sex. Butnumerous 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. ofAppellants 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 ofthe term "endorse" in the WLAD.

31No. 91615-2



### statutory and constitutional claims of discrimination. E.g., Hegwine v. Longview 

### Fibre Co., 162 Wn.2d 340,349, 172P.3d 688 (2007)("under the plain language of the WLAD and its interpretative regulations, pregnancy related employment discrimination claims are matters ofsex discrimination");Elane Photography,LLC V. Willock, 2013-NMSC-040, 309 P.3d 53 (rejecting argument identical to Stutzman's,in context ofNew Mexico'sHuman 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.2971,177L.Ed.2d 838(2010) (student organization was discriminating based on sexual orientation, not beliefor conduct, 

### when it excluded from membership any person who engaged in '"unrepentant homosexual conduct'"; thus. University's antidiscrimination policy did not violate First Amendmentprotections); see also Lawrence v. Texas, 539 U.S. 558,575, 123 S.Ct.2472,156L.Ed.2d 508(2003) (by criminalizing conducttypically 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 conductso 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—thatrepresents Stutzman before this court. Id. at 58.

32No. 91615-2



### by gay people, a state discriminates against gay people in violation ofprotections 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. 1790,29L.Ed.2d 338 (1971));Reply Br.ofAppellants at 39. This is related to her argument in the opening briefon 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 ofanimus. See Bray,506 U.S. at 267-68; Griffin,403 U.S.at 102. In contrast,we have already addressed this question ofan animus requirement with regard to the WLAD and have held that it contains no such requirement (see discussion below).

33No. 91615-2



### onthe basis ofracial affiliation and association is aform ofracial discrimination")." Finally,in 2015,the Supreme Courtlikened the denial ofmarriage equality to samesex couples itself to discrimination, noting that such denial "works a grave and 

### continuing harm,"and is a "disability on gays and lesbians [that]servesto 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 ofFourteenth 

### Amendment;abrogating the equal protection and due process holdings in Andersen V. King County, 158 Wn.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 ofthe 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 ofany ofthe accommodations,advantages.

" See alsoBlackburn v.Dep'tofSoc. &Health Servs., 186 Wn.2d 250,258-59,375 P.3d 1076 (2016)(discrimination on basis ofrace 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. ofAppellants at 36-37. She draws our attention to two trial court decisions from Kentucky and Virginia. Id. 34No. 91615-2



### facilities, or privileges" of any place of public accommodation, RCW 

### 49.60.030(l)(b)(emphasis added);and thatalldiscriminatory acts,including anyact "which directly or indirectlyresults in any distinction,restriction,or discrimination" 

### based on aperson's sexual orientation is an unfairpractice 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 ofRCW 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 ofRCW 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 exemptionto RCW 49.60.215 for "religious organization[s]"'^ thatobject

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 35No. 91615-2



### to providing public accommodations for same-sex weddings. LawsOF 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)). Ifthe 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 Wn.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 ofthe analysis Stutzman would like us to adopt,samesex marriage has never been "illegal" in Washington. Stutzman cites our decision 

### in Waggoner v. Ace Hardware Corp., 134 Wn.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 ofreligion,"such as "churches,mosques,synagogues,temples,"etc.).
36No. 91615-2



### determined thatthe plain meaning ofthe word "marital"—^that is,pertaining to "the status ofbeing married,separated,divorced,or widowed"—wassufficientto resolve 

### the question againstpetitioners. Id.at 753. Wethus 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 thatpractice 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), LawsOF 1975,1stEx.Sess.,ch.260,§ 9A.92.010(211). Rather, it codified,as a matter ofstate law,that the only legally recognized marriages in the state ofWashington 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 37No. 91615-2



### marriages will notbe recognized in Washington."). FormerRCW 26.04.010(1998) enacted no criminalpenaltiesfor 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 Wn.2d at 754 n.4. Our reasoning in Waggoner turned on the presence ofa 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 ofprotected 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 Wn.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-bycase basis,"Reply Br. ofAppellants at 43. She cites Seattle Times Co. v. Ishikawa,

38No. 91615-2



### 97 Wn.2d 30,37-39,640P.2d 716(1982),for the rule thatthis courtuses balancing tests to resolve claims ofcompeting rights in other contexts.'"^ 

### But Stutzman cites no authority for her contention that the WLAD protects 

### proprietors ofpublic 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 

### HomeownersAss'n,169 Wn.2d 516,526,243P.3d 1283 (2010)(quoting Dev., Inc. V. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003)). Here, the legislature has provided no indication in the text ofthe WLAD that it intended to Although Stutzman refers to the balancing test set forth in Ishikawa, that is not the testthatshe applies in her briefing. Instead,Stutzman articulates a three-partbalancing inquiry that(1)

prioritizes "[rjights ofexpress constitutional magnitude . . .over otherrights when they conflict,"(2)evaluates whether infringement on the rights ofthe opposingparty are narrowly tailored to protect the rights ofthe claimant,and (3)weighs the benefits and burdens on each party. Br. ofAppellants at 23-24. In conducting this inquiry, Stutzman concludes that her rights "should take precedence"here because they are ofconstitutional 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. 39No. 91615-2



### import a fact-specific, case-by-case, constitutional balancing test into the statute. Moreover,the plain terms ofthe 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 injudgment)(decliningto extend Social Security exemption to Amish employers on religious grounds because "[wjhen followers of 

### a particular sect enter into commercial activity as a matter ofchoice,the limits they accept on their own conduct as a matter of conscience and faith are not to be 

### superimposed onthe statutory schemeswhich are binding on others inthatactivity"); Backlundv. Bd. ofComm 'rs of King CountyHosp.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 

### ofchoice,necessarily face regulation as to their own conduct");In re Marriage of Didier, 134 Wn.App.490,499, 140 P.3d 607 (2006). 

### Because it is inconsistent with the WLAD'splain terms and unsupported by any precedent,we decline to adopt Stutzman's proposed balancing test. In sum.

40No. 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 correctthatifthe State statute violated aconstitutionalright, the constitutional right would certainly prevail. U.S.Const, art. VI, cl. 2 (federal constitutional supremacy); Davis v. Cox, 183 Wn.2d 269, 294-95, 351 P.3d 862 

### (2015)(state constitutional provision prevails over state statute to the contrary). We therefore analyze each ofStutzman's constitutional defenses carefully. The first ofthese 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 ofall 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 statutoryprotections,we address thatargumentin the constitutional analyses below. 41No. 91615-2



### V. 119 Vote No! Comm., 135 Wn.2d 618, 624, 957 P.2d 691 (1998) (plurality opinion)(quoting v. McClatchyNewspapers,Inc., 131 Wn.2d 523,536,936 

### P.2d 1123 (1997)). "The government may not prohibit the dissemination ofideas 

### that it disfavors, nor compel the endorsement of ideas that it approves." Knox v. Serv.Emps.Int'l Union,Local 1000,567U.S. 298,309, 132 S.Ct. 2277, 183 L.Ed. 

### 2d 281 (2012). Indeed,the First Amendmentprotects 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. UnitedStates,394 U.S. 705,708,89 S. Ct. 1399,22L.Ed. 2d 664(1969)(per curiam)). Stutzman argues that the WLAD,as applied to her in this case,violates First 

### Amendmentprotections against"compelled speech"because it forces her to endorse same-sex mamage. Br. ofAppellants at 24-31. To succeed in this argument, she must first demonstrate that the conduct at issue here—her commercial sale offloral 

### wedding arrangements—amounts to "expression" protected by the First Amendment. Clark v. Cmty.for CreativeNon-Violence,468 U.S.288,293 n.5, 104 

### S.Ct. 3065,82L.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.").

42No. 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 ofspeech."). Butthe 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. ofAppellants 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 Amendmentprotections 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 43No. 91615-2



### inquiry into whether the conduct at issue was "inherently expressive." Rumsfeld v. Forumfor 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. Butthe major contestis 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 ofa 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 ofthe 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 notprotected 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

44No. 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'tget 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 notbe 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.ofAppellants 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 45No. 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—aruling thatthe Supreme Court called "peculiar." 515 U.S. at 561-62, 572. The Court noted that the parade's "inherent expressiveness"

Redgrave in light ofher support ofthe Palestine Liberation Organization. Redgrave sued 

### the BSC for breach ofcontract 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 ofthe 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 ofa 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 of America v. Dale, 530 U.S. 640, 657, 120 S.Ct.2446, 147L.Ed.2d 554(2000),as examples ofcases 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 ofpeople fell under the law. Dale, 530 U.S. at 657 (New Jersey Court "wenta 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. 46No. 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 ofpublic 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 ofitself,withoutfurther explanation. SeeHurley,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 ofFirst Amendmentfreedom ofassociation 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 Amendmentrights);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). 47No. 91615-2

2533, 105 L.Ed.2d 342(1989)(burning the American flag); UnitedStates v. Grace, 461 U.S. 171, 103 S.Ct. 1702,75 L.Ed.2d 736 (1983)(distributing leaflets outside 

### Supreme Court building in violation offederal statute);Nat'ISocialistParty of Am. 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 ofone'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 48No. 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 ofdiscrimination); 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"angementservices for opposite-sex weddings,or denying those services for samesex weddings—is not like the inherently expressive activities at issue in these cases. 

### Instead,it is like the unprotected conduct in FAIR,547U.S.at 66.'^

Stutzman and amici point to a handful ofcases protecting various forms ofart— 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. ofAppellants (Cato)at 7(citing Ward v. RockAgainstRacism,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 ajunior 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 ofa college's demands that the artist move some ofhis pieces from a gallery to an 49No. 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. ofAppellants at 45. In her case,she proposes that she would be willing to sell Mr. Ingersoll "uncut flowers and premade arrangements." Id. at46. But,as amicusAmericansUnited for Separation ofChurch 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. ofAmicus Curiae Ams.United in Supp. ofResp'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 ofwords,realistic or abstract images,symbols,or a combination ofthese, all of which are forms ofpure expression that are entitled to full First Amendment protection." 621 F.3d at 1061. Stutzman's floral arrangements do not implicate any similar concerns. 50No. 91615-2



### light ofthe proliferation of cases requesting exceptions for "florists, bakeries, and 

### other wedding vendors"who refused to serve gay couples. ElanePhotography,309 P.3dat71. Because Stutzman's sale of floral arrangements is not expressive conduct protected by the FirstAmendment,we affirm the trial court and hold thatthe WLAD 

### does not violate free speech protections as applied to Stutzman in this case.

ii. Stutzman does not argue that article I, section 5 ofthe Washington Constitution provides any greater protection than the First Amendmentinthis context;wetherefore affirm the trial court'sruling that no article I, section 5 violation occurred in this case Stutzman asserts violations ofboth 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 FirstAmendment. Bradburn v. N. Cent.Reg7LibraryDist., 168 Wn.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 ofwhether article I, section 5 rights in this context are coextensive with First Amendment rights.

51No. 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 ofthe First Amendment,which applies to the States through the Fourteenth Amendment,Cantwellv. Connecticut, 310U.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 of

Human Res. v. Smith,494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed.2d 876 (1990). LukumiBabalu Aye,508 U.S. at 532. 52No. 91615-2



### A law isnotneutralforpurposesofaFirstAmendmentfree exercise challenge if"the object of [the] law is to infringe upon or restrict practices because oftheir 

### 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. ofAppellants 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.,LukumiBabaluAye,508 U.S.at 532-42(law was not neutral where legislative history, including enactment ofnumerous 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 ofaction, 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 ofreligion." RCW 26.04.010(7)(b). 53No. 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 thatappears 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.ofPresidingBishop ofChurch ofJesus ChristofLatterDaySaints v. Amos,483 U.S. 327,335-38, 107 S.Ct. 2862,97L.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 advancesnor inhibitsreligion);ElanePhotography,309P.3d at 74-75 ("Exemptions for religious organizations are common in a wide variety oflaws, 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 ofwhich is implicated here. 54No. 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 thatthe governmenthas deliberately targeted religious conductfor onerous regulation,or atthe very least devalued religion as a ground for exemption. Lukumi BabaluAye,508U.S.at 544-46(holding that ordinance wasnotgenerally applicable because it "pursuesthe 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"ifitpermits individual exemptions but is then applied in a manner that is needlessly prejudicial to religion. Lighthouse Inst.for Evangelism,Inc. v. City of Long 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 55No. 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 FirstAmendmentfree exercise analysis,the WLAD would trigger strict scrutiny ifitpermitted that sortofdiscrimination 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 provisionrequiresthat"covered multifamily dwellings"be designed and constructed in compliance with state and federal disability access laws. This is not a license for 56No. 91615-2

certain landlords to discriminate. With respectto public accommodations,the same is true ofthe WLAD's "exemptions" for individuals employed in domestic service


### or by family members and for "employers" with fewer than eight employees. See Br.ofAppellants at 38(citingRCW 49.60.040(10),(11)). These exemptionsprotect 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 ofa 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 LukumiBabalu Aye,Blackhawk,or Fraternal Order ofPolice 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 57No. 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 ofthe 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 itmustbear 'arationalrelationship 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))).

58No. 91615-2



### D.AsApplied in This Case,the WLAD Did NotViolate Stutzman'sRight 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 ofreligious sentiment, beliefand 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 ofthe state. Obviously, this language differs from the language ofthe 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 of

Seattle v. City of

Seattle, 114 Wn.2d 392,402,787P.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 courtrelied on FirstAmendmentfree 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

59No. 91615-2



### interest" and "constitute[] the least restrictive means to achieve the government's objective"(citing Sherbertv. Verner,374U.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 definitivelyrepudiated strict scrutiny for neutral,generally applicable lawsprohibiting "socially harmful conduct." Id. at 884-85. Itreasoned thatapplying heightened scrutiny—which requires a balancing ofgovernmental 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. UnitedStates,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 ofthe 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). Butthis court has always treated them as synonymous in religious free exercise cases. E.g.,Backlund, 106 Wn.2d at 641 ("Since [the plaintiffs] beliefs are protected by the free exercise clause ofthe First Amendment,the burden ofproofshifts 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 thepractice ofhis beliefto 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 Wn.2d 735,740,612P.2d 795 (1980))). 60No. 91615-2



### Second,it would entangle civil courts in religion by requiring them to evaluate the 

### significance ofaparticular 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 ofaparticular beliefin areligion ortheplausibility ofareligious 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 ofSeattle v. City ofSeattle, 120 Wn.2d 203, 840 P.2d 174 (1992) (First 61No. 91615-2



### Covenant II). In that case, the plaintiff church argued that its designation as a 

### historicallandmark(subjectto "controls"limiting alterationsto its building)violated both First Amendment and article I, section 11 protections. Id. at 208-09. In First CovenantI,we applied strict scrutiny to both constitutional challenges and held that the zoning law was unconstitutional. 114 Wn.2d at 401-02,410. On remand from 

### the United States Supreme CourtfollowingSmith,we addressed the state and federal free exercise claims again. Regarding the First Amendment claim, the First 

### CovenantII court held that the challenged statute fell within both ofthe exceptions to rational basis review recognized in Smith: it created a system of"individualized 

### assessments"anditraised "hybrid"constitutional concerns(by restricting speech as well as religious free exercise). 120 Wn.2d at 214-17. The courttherefore 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 

### plaintiffchurch—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 ofsignificant architectural elements is a price we must accept to guarantee the paramount right ofreligious freedom . . . [and] [ajlthough we might . . . base our

62No. 91615-2



### decision solely on federal grounds,we decline to do so."). Itperformed 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 CovenantII,we have applied the same four-pronged analysis in an article I, section 11 challenge: where a party has (1)a sincere religious beliefand (2)the exercise of that belief is substantially burdened by the challenged law, the law is enforceable againstthatparty only ifit(3)serves a compelling government interest and (4)is the least restrictive means ofachieving that interest. City ofWoodinville v. Northshore United Church ofChrist, 166 Wn.2d 633,642,211 P.3d 406 (2009);Backlund, 106

State V. Gunwall, 106 Wn.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 ofthe state eonstitutional provision at issue,(2)significant differences between the text ofparallel 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 ofparticular state or local concern. Id. at 61-62. City ofWoodinville v. Northshore United Church ofChrist, 166 Wn.2d 633,644- 45, 211 P.3d 406 (2009); Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 156-60,995 P.2d33 (2000); v. Martin, 131 Wn.2d 192, 195,930 P.2d 318 (1997); First UnitedMethodist Church ofSeattle v. Hr'gExam 'rfor Seattle LandmarksPres. Ed., 129 Wn.2d 238,249-50,252-53,916 P.2d 374 (1996). 63No. 91615-2



### Wn.2d at641. And wehave specifically held—inthe contextofachurch's challenge to azoning law—^thatarticle I,section 11 is more protective ofreligious free exercise 

### than the First Amendment is. E.g.,First Covenant II, 120 Wn.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 ofthe First Amendment").^® The parties dispute the significance ofthese 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 thataneutral health and safety regulation like the WLAD creates no substantial burden on the free exercise ofreligion—and thus does not trigger strict scrutiny—when it operates in the commercial

The attorney general correctly notes thatthis 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 Atfy Gen.Resp.Br.at 31 ("Indeed theplain language ofarticle 1, section 11 guarantees its protections to 'every individual,' making no mention of protection for businesses.");Atfy Gen.'s Answer to Brs. ofAmici 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 ofthe 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. 64No. 91615-2



### marketplace. Stutzman contends thatunderFirstCovenantII and itsprogeny,"strict scrutiny applies even ifthe regulation 'indirectly burdens the exercise ofreligion.'" Br.ofAppellants at 33 (quoting First CovenantII, 120 Wn.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 ifarticle I, section 

### 11 provides Stutzman with the strongestpossible 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 Wn.2d at 641 

### (requirementthat 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 thepractice of[the plaintiffs] beliefto satisfy that interest"); State v. Meacham,93 Wn.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 Wn.2d 860, 861, 863-64, 239 P.2d 545 (1952) (neither First 

### Amendmentnor prior version ofarticle I, section 11 barred mandatory tuberculosis

65No. 91615-2



### testing as condition ofadmission to University ofWashington;"the public interest [served] is the health of all ofthe students and employees ofthe university[;] . . . [t]he danger to this interest is clear and present, grave and immediate[, and] . . . 

### [i]nfringementofappellant'srights is anecessary consequence ofapractical attempt to avoid the danger");see also State v. Clifford,57 Wn.App. 127, 132-34,787P.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 interestinregulating the driving ofmotorvehicles"). 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. Butnumerous other courtshaveheardreligious 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 66No. 91615-2



### &Health Club,Inc.,370N.W.2d 844,852-54(Minn. 1985) (in employmentcontext, 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 thatstrict scrutiny applied as a matter ofstate constitutional law,it would not invalidate statute barring discrimination on the basis 

### ofsexual 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 accessto medicaltreatmentirrespective ofsexual orientation, and there are no less restrictive means for the state to achieve that goal"(citing Cal. ClV.Code § 51)); Gay Rights Coal, ofGeorgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 31-39 (D.C. 1987)(District ofColumbia's Human Rights Act, formerD.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 ofthe University than equal access to its 'facilities and services,' without regard to sexual orientation, 67No. 91615-2



### would be to defeat its compelling purpose[:] [t]he District ofColumbia's overriding interest in eradicating sexual orientation discrimination, ifit 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'thave 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. ofAppellants at 46. We emphatically rejectthis 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 68No. 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 

### ostensiblyjustified discrimination,^^ thatpurpose 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 ofassociation. But to support that argument, she relies exclusively on cases addressing membership in private clubs: Boy Scouts of

America 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—ifit is based on religious beliefs. Br. ofAppellants 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 402n.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 ofspeech or association.

69No. 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 ofmarching in a parade). In fact,the United States Supreme Courthas even held that states may enforce 

### antidiscrimination laws against certain private organizations, defined by particular goals and ideologies,ifthe enforcementwill 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. ofAppellants at 28. This opinion addresses Stutzman's free expression claim elsewhere. 70No. 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 extentthat enforcement "will [not]change the content
or impact ofthe organization's speech"). But the Supreme Court has never held that a commercial enterprise, open to the generalpublic,is an '"expressive association'"for purposes ofFirstAmendment 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 CovenantII, 120 Wn.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

71No. 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 ofSolely 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 ifshe violated the WLAD,then Arlene's Flowers is liable for a CPA violation. ButStutzman arguesthatshe cannotbepersonally liable forviolating 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.ofAppellants at 49 (citing Grayson v. Nordic Constr. Co.,92 Wn.2d 548,552-53,599 P.2d 1271 (1979); One Pac. Towers Homeowners' Ass'n V. HALRealEstateInvs.,Inc., 108 Wn.App.330,347-48,30P.3d 504(2001), 

### aff'd inpartand rev'd inpart, 148 Wn.2d 319,61 P.3d 1094 (2002)).

Thetrial courtalso found that Stutzman's actions violated the CPA—becausethey were an '"unfair or deceptive act or practice . . . occurring in trade or commerce, and [impacting the]public interest'"—even ifshe did not also violate the WLAD. CP at 2634- 37(quoting State v. Kaiser, 161 Wn.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. 72No. 91615-2



### The authority Stutzman cites does notsupportthis 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 Wn.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 Wn.App.330,doesnotaddress

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 ifthey "participate[] in the wrongful conduct, or with knowledge approve[] of the conduct." State v. Ralph Williams'N.W. Chrysler Plymouth, Inc., 87 Wn.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 anyperson 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 73No. 91615-2



### officer stands 'in responsible relation to a public danger.'" Dep't ofEcology v. Lundgren, 94 Wn. App. 236, 243, 971 P.2d 948 (1999)(quoting United States v. Dottenveich,320U.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 conductofArlene's Flowers(the corporation). It found her liable because ofacts that she herselfcommitted. 

### 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 ofattorney 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 ofattorney fees and costs to Freed and Ingersoll. This order remains in effect; the trial court shall determine the amount ofattorney 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 ofsexual orientation. We therefore hold that 

### the conduct for which Stutzman was cited and fined in this case—refusing her commercially marketed wedding floral servicesto Ingersoll and Freed because theirs would be a same-sex wedding—constitutes sexual orientation discrimination under

74No. 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 notviolate 

### 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.

75No. 91615-2

WE CONCUR: ■ 'J



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