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State v. Arlene's Flowers, Inc.

Supreme Court of Washington, En Banc

February 16, 2017

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.

          GORDON McCLOUD, J.

         The State of Washington bars discrimination in "public ... accommodation[]" on the basis of "sexual orientation." RCW 49.60.215 (Washington Law Against Discrimination (WLAD)). Barronelle Stutzman owns and operates a place of public accommodation in our state: Arlene's Flowers Inc. Stutzman and her public business, Arlene's Flowers and Gifts, refused to sell wedding flowers to Robert Ingersoll because his betrothed, Curt Freed, is a man. The State and the couple sued, each alleging violations of the WLAD and the Consumer Protection Act (CPA), ch. 19.86 RCW. Stutzman defended on the grounds that the WLAD and CPA do not apply to her conduct and that, if they do, those statutes violate her state and federal constitutional rights to free speech, free exercise, and free association.

         The Benton County Superior Court granted summary judgment to the State and the couple, rejecting all of Stutzman's claims. We granted review and now affirm.

         FACTS

         In 2004, Ingersoll and Freed began a committed, romantic relationship. In 2012, our state legislature passed Engrossed Substitute Senate Bill 6239, which recognized equal civil marriage rights for same-sex couples. Laws of 2012, ch. 3, § 1. 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 1775-77.

         By the time he and Freed became engaged, Ingersoll had been a customer at Arlene's Flowers for at least nine years, purchasing numerous floral arrangements from Stutzman and spending an estimated several thousand dollars at her shop. Stutzman is the owner and president of Arlene's Flowers. She employs approximately 10 people, depending on the season, including three floral designers, one of whom is herself. Stutzman knew that Ingersoll is gay and that he had been in a relationship with Freed for several years. The two men considered Arlene's Flowers to be "[their] florist." Id. at 350.

         Stutzman is an active member of the Southern Baptist church. It is uncontested that her sincerely held religious beliefs include a belief that marriage can exist only between one man and one woman.

         On February 28, 2013, Ingersoll went to Arlene's Flowers on his way home from work, hoping to talk to Stutzman about purchasing flowers for his upcoming wedding. Ingersoll told an Arlene's Flowers employee that he was engaged to marry Freed and that they wanted Arlene's Flowers to provide the flowers for their wedding. The employee informed Ingersoll that Stutzman was not at the shop and that he would need to speak directly with her. The next day, Ingersoll returned to speak with Ms. Stutzman. At that time, Stutzman told Ingersoll that she would be unable to do the flowers for his wedding because of her 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 name of other florists who might be willing to serve him, and that the two hugged before Ingersoll left her store. Ingersoll maintains that he walked away from that conversation "feeling very hurt and upset emotionally." Id. at 1743.

         Early the next morning, after a sleepless night, Freed posted a status update on his personal Facebook feed regarding Stutzman's refusal to sell him wedding flowers. The update observed, without specifically naming Arlene's Flowers, that the couple's "favorite Richland Lee Boulevard flower shop" had declined to provide flowers for their wedding on religious grounds, and noted that Freed felt "so deeply offended that apparently our business is no longer good business, " because "[his] loved one [did not fit] within their personal beliefs." Id. at 1262. This message was apparently widely circulated, though Ingersoll testified that their Facebook settings were such that the message was "only intended for our friends and family." Id. at 1760, 1785. Eventually, the story drew the attention of numerous media outlets.

         As a result of the "emotional toll" Stutzman's refusal took on Freed and Ingersoll, they "lost enthusiasm for a large ceremony" as initially imagined. Id. at 1490. In fact, the two "stopped planning for a wedding in September 2013 because [they] feared being denied service by other wedding vendors." Id. at 351. The couple also feared that in light of increasing public attention-some of which caused them to be concerned for their own safety-as well as then-ongoing litigation, a larger wedding might require a security presence or attract protesters, such as the Westboro Baptist group. So they were married on July 21, 2013, in a modest ceremony at their home. There were 11 people in attendance. For the occasion, Freed and Ingersoll purchased one bouquet of flowers from a different florist and boutonnieres from their friend. When word of this story got out in the media, a handful of florists offered to provide their wedding flowers free of charge.

         Stutzman also received a great deal of attention from the publicity surrounding this case, including threats to her business and other unkind messages.

         Prior to Ingersoll's request, Arlene's Flowers had never had a request to provide flowers for a same-sex wedding, and the only time Stutzman has ever refused to serve a customer is when Ingersoll and Freed asked her to provide flowers for their wedding. The decision not to serve Ingersoll was made strictly by Stutzman and her husband. After Ingersoll's and Freed's request, Stutzman developed an "unwritten policy" for Arlene's Flowers that they "don't take same sex marriages." Id. at 120. Stutzman states that the only reason for this policy is her conviction that "biblically marriage is between a man and a woman." Id. at 120-21. Aside from Ingersoll and Freed, she has served gay and lesbian customers in the past for other, non-wedding-related flower orders.

         Stutzman maintains that she would not sell Ingersoll any arranged flowers for his wedding, even if he were asking her only to replicate a prearranged bouquet from a picture book of sample arrangements. She believes that participating, or allowing any employee of her store to participate, in a same-sex wedding by providing custom floral arrangements and related customer service is tantamount to endorsing marriage equality for same-sex couples. She draws a distinction between creating floral arrangements-even those designed by someone else-and selling bulk flowers and "raw materials, " which she would be happy to do for Ingersoll and Freed. Id. at 546-47. Stutzman believes that to create floral arrangements is to use her "imagination and artistic skill to intimately participate in a same-sex wedding ceremony." Id. at 547. However, Stutzman acknowledged that selling flowers for an atheistic or Muslim wedding would not be tantamount to endorsing those systems of belief.

         By Stutzman's best estimate, approximately three percent of her business comes from weddings. Stutzman is not currently providing any wedding floral services (other than for members of her immediate family) during the pendency of this case, PROCEDURAL HISTORY

         After the State became aware of Stutzman's refusal to sell flowers to Ingersoll and Freed, the Attorney General's Office sent Stutzman a letter. It sought her agreement to stop discriminating against customers on the basis of their sexual orientation and noted that doing so would prevent further formal action or costs against her. The letter asked her to sign an "Assurance of Discontinuance, " which stated that she would no longer discriminate in the provision of wedding floral services. Stutzman refused to sign the letter.

         As a result, the State filed a complaint for injunctive and other relief under the CPA and WLAD against both Stutzman and Arlene's Flowers, in Benton County Superior Court on April 9, 2013. Stutzman filed an answer on May 16, 2013, asserting, among other defenses, that her refusal to furnish Ingersoll with wedding services was protected by the state and federal constitutions' free exercise, free speech, and freedom of association guaranties. Ingersoll and Freed filed a private lawsuit against Arlene's Flowers and Stutzman on April 18, 2013, which the trial court consolidated with the State's case on July 24, 2013. The parties filed various cross motions for summary judgment. The trial court ultimately entered judgment for the plaintiffs in both cases, awarding permanent injunctive relief, as well as monetary damages for Ingersoll and Freed to cover actual damages, attorneys' fees, and costs, and finding Stutzman personally liable.

         When it granted the plaintiffs' motions for summary judgment, the trial court made seven rulings that are at issue in this appeal. First, it issued two purely statutory rulings: (1) that Stutzman violated the WLAD's public accommodations provision (RCW 49.60.215(1)) and the CPA (see RCW 19.86.020 and 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 violations. CP at 2566-600. Next, the court made five constitutional rulings. It concluded that the application of the WLAD's public accommodations provision to Stutzman in this case (1) did not violate Stutzman's right to free speech under the First Amendment to the United States Constitution or article I, section 5 of the Washington Constitution, (2) did not violate Stutzman's right to religious free exercise under the First Amendment, (3) did not violate her right to free association under the First Amendment, (4) did not violate First Amendment protections under the hybrid rights doctrine, and (5) did not violate Stutzman's right to religious free exercise under article I, section 11 of the Washington Constitution. Id. at 2601-60.

         Stutzman appealed directly to this court, assigning error to all seven of those rulings. We granted direct review. Order, Ingersoll v. Arlene 's Flowers, No. 91615-2 (Wash. Mar. 2, 2016). With respect to most of the claims, Stutzman and Arlene's Flowers make identical arguments-in other words, Stutzman asserts that both she and her corporation enjoy identical rights of free speech, free exercise, and free association. It is only with respect to the CPA claim that Stutzman asserts a separate defense: she argues that even if Arlene's Flowers is liable for the CPA violation, she cannot be, personally liable for a violation of that statute.

         ANALYSIS

         As noted 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) ("[s]tatutory 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.2d494, 503, 198 P.3d 1021 (2009) (appellate court "review[s] all constitutional challenges de novo" (citing State v. Jones, 159 Wn.2d 231, 237, 149 P.3d 636 (2006))).

         I. Stutzman's Refusal To Provide Custom Floral Arrangements for a Same-Sex Wedding Violated the WLAD's Prohibition on Discrimination in Public Accommodations, RCW 49.60, 215

         Stutzman's first statutory argument implicates the WLAD, chapter 49.60 RCW. The trial court ruled that Stutzman violated RCW 49.60.215, which prohibits discrimination in the realm of public accommodations. That statute provides:

(1) It shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of. . . sexual orientation ....

RCW 49.60.215. The protected class status of "sexual orientation" was added to this provision in 2006. LAWS OF 2006, ch. 4, § 13.

         The WLAD defines places of public accommodation to include places maintained "for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services . . . ." RCW 49.60.040(2). Protected individuals are guaranteed "[t]he right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges" of such places. RCW 49.60.030(1)(b). Additionally, the WLAD states that "[t]he right to be free from discrimination because of. ., sexual orientation ... is recognized as and declared to be a civil right, " RCW 49.60.030(1) (emphasis added). The WLAD prohibits discrimination on the different basis of "marital status" in the employment context, but not in the context of public accommodations. Compare RCW 49.60.180 (listing "marital status" as a protected class in section governing unfair practices of employers) with RCW 49.60.215 (omitting marital status from analogous public accommodations statute).

         RCW 49.60.030(2) authorizes private plaintiffs to bring suit for violations of the WLAD. To make out a prima facie case under the WLAD for discrimination in the public accommodations context, the plaintiff must establish four elements: (1) that the plaintiff is a member of a protected class, RCW 49.60.030(1); (2) that the defendant is a place of public accommodation, RCW 49.60.215; (3) that the defendant discriminated against the plaintiff, whether directly or indirectly, id.; and (4) that the discrimination occurred "because of the plaintiffs status or, in other words, that the protected status was a substantial factor causing the discrimination, RCW 49.60.030. See also Fell v. Spokane Transit Auth, 128 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. of Appellants at 19-21.[1] She offers three arguments in support of this interpretation of the statute.

         First, Stutzman argues that if she discriminated against Ingersoll, it was on the basis of his "marital status, " not his "sexual orientation." Br. of Appellants at 19-21. Second, she argues that the legislature could not have intended the 2006 amendments to protect people seeking same-sex wedding services since same-sex marriages were "illegal" in Washington in 2006. Id. at 15-17. She points out that when the legislature amended the public accommodations provisions of the WLAD in 2006, it also added language stating that the chapter "shall not be construed to endorse any specific belief, practice, behavior, or orientation, " and affirming that the addition "shall not be construed to modify or supersede state law relating to marriage." Id. at 17-18, 15 (quoting LAWS OF 2006, ch. 4, § 2 (codified at RCW 49.60.020)). Third, Stutzman argues that because the WLAD protects both sexual orientation and religion, it requires that courts balance those rights when they conflict.[2] These arguments fail, A. By refusing to provide services for a same-sex wedding, Stutzman discriminated on the basis of "sexual orientation" under the WLAD

         Stutzman argues that the WLAD distinguishes between discrimination on the basis of "sexual orientation"-which the statute prohibits-and discrimination against those who marry members of the same sex. But numerous courts-including our own-have rejected this kind of status/conduct distinction in cases involving statutory and constitutional claims of discrimination. E.g., Hegwine v. Longview Fibre Co., Inc., 162 Wn.2d 340, 349, 172 P.3d 688 (2007) ("under the plain language of the WLAD and its interpretative regulations, pregnancy related employment discrimination claims are matters of sex discrimination"); Elane Photography, LLC v. Willock, 2013-NMSC-040, 309 P.3d 53 (2013) (rejecting argument identical to Stutzman's, in context of New Mexico's Human Rights Act (NMHRA), N.M. Stat. Ann. §§ 28-1-1 to 28-1-13)[3]; Christian Legal Soc'y Chapter of Univ. of Cat. v. Martinez, 561 U.S. 661, 672, 688, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) (student organization was discriminating based on sexual orientation, not belief or conduct, when it excluded from membership any person who engaged in '"unrepentant homosexual conduct'"; thus, University's antidiscrimination policy did not violate First Amendment protections); see also Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (by criminalizing conduct typically undertaken by gay people, a state discriminates against gay people in violation of protections under the Fourteenth Amendment to the federal constitution); Romer v. Evans, 517 U.S. 620, 641, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (Scalia, J., dissenting) ('"After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.'" (quoting Padula v. Webster, 261 U.S.App.D.C. 365, 371, 822 F.2d 97 (1987))); Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 270, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (summarizing that some conduct is so linked to a particular group of people that targeting it can readily be interpreted as an attempt to disfavor that group by stating that "[a] tax on wearing yarmulkes is a tax on Jews");[4] Bob Jones Univ. v. United States, 461 U.S. 574, 605, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) ("discrimination on the basis of racial affiliation and association is a form of racial discrimination").[5]Finally, last year, the Supreme Court likened the denial of marriage equality to same-sex couples itself to discrimination, noting that such denial "works a grave and continuing harm, " and is a "disability on gays and lesbians [that] serves to disrespect and subordinate them." Obergefell v. Hodges, __ U.S.__, 135 S.Ct. 2584, 2604, 2607-08, 192 L.Ed.2d 609 (2015) (fundamental right to marry includes same-sex couples and is protected by due process and equal protection clauses of Fourteenth Amendment; abrogating the equal protection and due process holdings in Andersen v. King County, 158 Wn.2d 1, 30, 138 P.3d 963 (2006) (plurality opinion) to the contrary).[6]

         In accordance with this precedent, we reject Stutzman's proposed distinction between status and conduct fundamentally linked to that status. This is consistent with the language of the WLAD itself, which, as respondents observe, states that it is to be construed liberally, RCW 49.60.020; that all people, regardless of sexual orientation are to have "full enjoyment of any of the accommodations, advantages, facilities, or privileges" of any place of public accommodation, RCW 49.60.030 (emphasis added); and that all discriminatory acts, including any act "which directly or indirectly results in any distinction, restriction, or discrimination" based on a person's sexual orientation is an unfair practice in violation of the WLAD, RCW 49.60.215 (emphasis added).

         B. There is no same-sex wedding exception to the WLAD's public accommodation provision, RCW 49.60.215

         For the reasons given in Section I.A above, the plain language of RCW 49.60.215 prohibits Stutzman's refusal to provide same-sex wedding services to Ingersoll; such refusal constitutes discrimination on the basis of "sexual orientation, " in violation of RCW 49.60.215. The same analysis applies to her corporation.

         Stutzman asks us to read an implied same-sex wedding exception into this statute. She argues that the legislature could not have intended to require equal access to public accommodations for same-sex wedding services because when it amended RCW 49.60.215 to prohibit sexual orientation discrimination, same-sex marriage was "illegal" in Washington.

         We reject this argument for two reasons. First, the WLAD already contains an express exemption to RCW 49.60.215 for "religious organization[s]"[7] that object to providing public accommodations for same-sex weddings. Laws OF 2012, ch. 3, § 1(5) (“[n]o religious organization is required to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage"). If the WLAD already excluded same-sex wedding services from the public accommodations covered under RCW 49.60.215, this exemption would be superfluous. We interpret statutes to avoid such superfluity whenever possible. Rivard v. State, 168 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 of the analysis Stutzman would like us to adopt, same-sex marriage has never been "illegal" in Washington. Stutzman cites our decision in Waggoner v. Ace Hardware Corp., 134 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 determined that the plain meaning of the word "marital"-that is, pertaining to "the status of being married, separated, divorced, or widowed"-was sufficient to resolve the question against petitioners. Id. at 753. We thus rejected Waggoner's argument because "[w]e presume legislative consistency when called upon to construe statutory enactments or new amendments to old ones" and our legislature had criminalized cohabitation prior to protecting marital status under the WLAD. Id. at 754. Of significance here, we noted that cohabitation remained a crime for a full three years after marital status was included as a protected status, and observed that "[i]t would be most anomalous for the Legislature to criminalize and protect the same conduct at the same time." Id. (emphasis added). Stutzman argues that we should treat same-sex marriage the same way and hold that the legislature could not possibly have intended to protect that practice when it protected sexual orientation as & 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), repealed by Laws OF 1975, 1st Ex. Sess., ch. 260, § 9A.92.010(211). Rather, it codified, as a matter of state law, that the only legally recognized marriages in the State of Washington were those between a man and a woman. See Laws of 1998, ch. 1, § 2 ("It is the intent of the legislature ... to establish public policy against same-sex marriage in statutory law that clearly and definitively declares same-sex marriages will not be recognized in Washington"). Former RCW 26.04.010 (1998) enacted no criminal penalties for attempts by two individuals of the 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 of a criminal statute targeting the conduct at issue, which is absent here.

         We hold that there is no same-sex wedding exception to the WLAD's public accommodations provisions.

         C. The WLAD contains no mandate to balance religious rights against the rights of protected class members

         In her final statutory argument regarding the WLAD, Stutzman contends that the superior court erred by failing to balance her right to religious free exercise against Ingersoll's right to equal service. Stutzman argues that because the WLAD also protects patrons of public accommodations from discrimination based on "creed, " RCW 49.60.030(1), and because this court has recognized that the WLAD "sets forth a nonexclusive list of rights, " Marquis v. City of Spokane,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-by-case basis, " Reply Br. of Appellants at 43. She cites Seattle Times Co. ...


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