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State v. Arlene's Flowers, Inc.

Supreme Court of Washington, En Banc

June 6, 2019

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 United States Supreme Court has tasked us with deciding whether the Washington courts violated the United States Constitution's guaranty of religious neutrality in our prior adjudication of this case. We have fully reviewed the record with this issue in mind, and we have considered substantial new briefing devoted to this topic. We now hold that the answer to the Supreme Court's question is no: the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, by declining to sell wedding flowers to a gay couple, and they did not act with religious animus when they ruled that such discrimination is not privileged or excused by the United States Constitution or the Washington Constitution.

         Overview

         This case is back before our court on remand from the United States Supreme Court. The Supreme Court vacated our original judgment and remanded "for further consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n." Arlene's Flowers, Inc. v. Washington, 138 S.Ct. 2671 (2018) (mem.). In Masterpiece Cakeshop, the Supreme Court held that the adjudicatory body tasked with deciding a particular case must remain neutral; that is, the adjudicatory body must "give full and fair consideration" to the dispute before it and avoid animus toward religion. 584 U.S. ___, 138 S.Ct. 1719, 1732, 201 L.Ed.2d 35 (2018). Disputes like those presented in Masterpiece Cakeshop and Arlene's Flowers "must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and 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 of Masterpiece Cakeshop.

         The dispute we resolve today is the same as the dispute that formed the basis for our original opinion.[1] The State of Washington bars discrimination in "public . . . accommodation[s]" on the basis of "sexual orientation." RCW 49.60.215(1). Barronelle Stutzman owns and operates a place of public accommodation in our 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), chapter 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 of religion, and free association.

         The Benton County Superior Court granted summary judgment to the State and the couple, rejecting all of Arlene's Flowers and Stutzman's claims. We granted review, and in our earlier opinion, we affirmed. The United States Supreme Court then granted appellants' petition for a writ of certiorari, vacated, and remanded, as discussed in the Procedural History section below.

         On remand, we once again affirm. In doing so, we reject appellants' expansive reading of Masterpiece Cakeshop. We reject appellants' attempt to relitigate issues resolved in our first opinion and outside the scope of this remand. And we reject appellants' suggestion that the permanent injunction requires them to "personally attend and participate in same-sex weddings." Br. of Appellants (Nov. 13, 2018) at 25. As the superior court carefully noted, "The degree to which [Stutzman] voluntarily involves herself in an event... is not before the Court" and therefore would not "be covered by an injunction." Clerk's Papers (CP) at 2347 n.23.

         Facts

         In 2004, Ingersoll and Freed began a committed, romantic relationship. In 2012, the people of our state voted to recognize equal civil marriage rights for same-sex couples. Laws of 2012, 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 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 names 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 them wedding flowers free of charge.

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

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

         Stutzman maintains that she would not sell Ingersoll any arranged flowers for his wedding, even if he were asking her only to replicate a prearranged bouquet from a picture book of sample arrangements. She believes that participating, or allowing any employee of her store to participate, in a same-sex wedding by providing custom 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 the WLAD against both Stutzman and Arlene's Flowers, in Benton County Superior Court on April 9, 2013. Stutzman filed an answer on May 16, 2013, asserting, among other defenses, that her refusal to furnish Ingersoll with wedding services was protected by the state and federal constitutions' free exercise of religion, free speech, and freedom of association guaranties. Ingersoll and Freed filed a private lawsuit against Arlene's Flowers and Stutzman on April 18, 2013, which the trial court consolidated with the State's case on July 24, 2013. The parties filed various cross motions for summary judgment. The trial court ultimately entered judgment for the plaintiffs in both cases, awarding permanent injunctive relief, as well as monetary damages for Ingersoll and Freed to cover actual damages, attorney fees, and costs, and finding Stutzman personally liable.

         When it granted the plaintiffs' motions for summary judgment, the trial court made seven rulings that are at issue in this appeal. First, it issued two purely statutory rulings: (1) that Stutzman violated the WLAD's public accommodations provision (RCW 49.60.215(1)) and the CPA (see RCW 19.86.020; RCW 49.60.030) by refusing to sell floral services for same-sex weddings and (2) that both Stutzman (personally) and Arlene's Flowers (the corporate defendant) were liable for these violations. CP at 2566-600. Next, the court made five constitutional rulings. It concluded that the application of the WLAD's public accommodations provision to Stutzman in this case (1) did not violate Stutzman's right to free speech under the First Amendment to the United States Constitution or article I, section 5 of the Washington Constitution, (2) did not violate Stutzman's right to religious free exercise under the First Amendment, (3) did not violate her right to free association under the First Amendment, (4) did not violate First Amendment protections under the hybrid rights doctrine, and (5) did not violate Stutzman's right to religious free exercise under article I, section 11 of the Washington Constitution. Id. at 2601-60.

         Stutzman appealed directly to this court, assigning error to all seven of those rulings. We granted direct review. Order, Ingersoll v. Arlene's Flowers, Inc., No. 91615-2 (Wash. Mar. 2, 2016). With respect to most of the claims, Stutzman and Arlene's Flowers make identical arguments-in other words, Stutzman asserts that both she and her corporation enjoy identical rights of free speech, free exercise, and free association.[2] 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.

         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 of their federal free speech and free exercise claims. Pet. for Writ of Cert., Arlene's Flowers, No. 17-108 (U.S. July 14, 2017). Before ruling on the petition, the United States Supreme Court issued its decision in Masterpiece Cakeshop, 138 S.Ct. 1719, a case involving similar issues to those in the case before us now. The Supreme Court then granted appellants' petition, vacated our original judgment, and remanded "for further consideration in light of Masterpiece Cakeshop.'" Arlene's Flowers, 138 S.Ct. 2671.

         The parties, as well as several other interested organizations and individuals (amici curiae), have fully briefed what they see as the issues on remand.[3] Appellants now claim that the permanent injunction issued by the superior court requires them to "personally attend and participate in same-sex weddings." Br. of Appellants (Nov. 13, 2018) at 25. Stutzman made a similar argument before the superior court, claiming "that other aspects of her involvement in weddings are speech, including singing, standing for the bride, clapping to celebrate the marriage, and in one instance counseling the bride." CP at 2347 n.23. But as the superior court explained,

Tellingly, Stutzman does not claim that she was being paid to do any of these things. Said another way, she does not claim that these are services that she is providing for a fee to her customers such that they would be covered by an injunction. The degree to which she voluntarily involves herself in an event outside the scope of services she must provide to all customers on a non-discriminatory basis (if she provides the service in the first instance) is not before the Court.

Id. The issue was not before the superior court then, and it is not before this court now.

         In addition, Arlene's Flowers and Stutzman filed a motion to supplement the record or for judicial notice, as did the State of Washington. We passed the motions to supplement or for judicial notice to the merits, and we now deny both motions and adhere to our original decision for the reasons explained below.

         Analysis

         A grant, vacate, remand (GVR) order "is neither an outright reversal nor an invitation to reverse; it is merely a device that allows a lower court that had rendered its decision without the benefit of an intervening clarification to have an opportunity to reconsider that decision and, if warranted, to revise or correct it." Gonzalez v. Justices of Mun. Court, 420 F.3d 5, 7 (1st Cir. 2005). "Consequently, we do not treat the Court's GVR order as a thinly-veiled direction to alter course" Id; see also Wright v. Florida, 256 So.3d 766, 770 (Fla. 2018) ("[W]e will not guess at the implied intentions of the Supreme Court's GVR order."), cert, denied (U.S. June 3, 2019) (No. 18-8653). Instead, we follow the Supreme Court's clear instruction to "further consider[]" this case "in light of Masterpiece Cakeshop" Arlene's Flowers, 138 S.Ct. 2671; see also Gonzalez, 420 F.3d at 8 ("As a general rule, 'when the Supreme Court remands in a civil case, the [court on remand] should confine its ensuing inquiry to matters coming within the specified scope of the remand.'" (quoting Kotler v. Am. Tobacco Co., 981 F.2d 7, 13 (1st Cir. 1992))).

         I. In Masterpiece Cakeshop, the Supreme Court held that the adjudicatory body tasked with deciding a particular case must remain neutral

         In Masterpiece Cakeshop, Jack Phillips, the shop's owner, told a same-sex couple "that he would not create a cake for their wedding because of his religious opposition to same-sex marriages-marriages the State of Colorado itself did not recognize at that time." 138 S.Ct. at 1723. After being turned away, the couple filed a charge with the Colorado Civil Rights Commission (Commission), id., a state adjudicatory body "charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law," id. at 1729. The couple alleged that the shop owner had illegally discriminated against them "on the basis of sexual orientation." Id. at 1723. The Commission ruled in the couple's favor, and the Colorado courts affirmed. Id.

         At the Supreme Court, Phillips argued that Colorado violated his First Amendment rights by requiring him "to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation." Id. at 1728; U.S. Const, amend. I. The Supreme Court explained that "the baker likely found it difficult to find a line where the customers' rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs." Id. The Court found the baker's "dilemma ... particularly understandable" given that Colorado did not yet "recognize the validity of gay marriages performed in its own State." Id.

         At the same time, the Court reaffirmed that "while . . . religious and philosophical objections [to gay marriage] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." Id. at 1727 (citing Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Newman v. Piggie 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 Piggie Park footnote to which the United States Supreme Court cites explicitly states that the shop owners' defense in that case-that the Civil Rights Act of 1964, 42 U.S.C. § 2000e, '"constitutes an interference with the free exercise of the Defendant's religion"'-was "patently frivolous." Piggie Park, 390 U.S. at 402 n.5 (internal quotation marks omitted) (quoting Newman v. Piggie Park Enters., Inc., 377 F.2d 433, 438 (4th Cir. 1967) (Winter, J, concurring specially)). Indeed, in Masterpiece Cakeshop, "Petitioners conceded . . . that if a baker refused to sell any goods or any cakes for gay weddings, ... the State would have a strong case under [the Supreme] Court's precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law." 138 S.Ct. at 1728.

         As to weddings, the Supreme Court noted that "it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion." Id. at 1727. But the Court observed the narrowness of such an exception:

Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

Id. Thus,

any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying "no goods or services will be sold if they will be used for gay marriages," something that would impose a serious stigma on gay persons. Id. at 1728-29.

         In sum, the issue before the Supreme Court was one of the "proper reconciliation of at least two principles." Id. at 1723. "The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services." Id. "The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment." Id.

         But the Supreme Court did not reconcile those two principles. Instead, the Court explained that the Commission failed to adjudicate "with the religious neutrality that the Constitution requires" and held that "whatever the outcome of some future controversy involving facts similar to these, the Commission's actions here violated the Free Exercise Clause [of the First Amendment]." Id. at 1724. "Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided." Id. at 1732. Disputes like Phillips' "must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market." Id.

         The Supreme Court therefore ruled that the Commission violated the free exercise clause of the First Amendment in two respects: two of its members made disparaging comments about religion and it treated similarly situated parties differently. We address each of those holdings below.

         A. Members of an Adjudicatory Body May Not Disparage the Religion of a Party Before It

         The Supreme Court observed that two of the seven commissioners on the Commission "endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado's business community." Id. at 1729. The Court took particular issue with the following statement made by a commissioner:

"Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be-I mean, we-we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to-to use their religion to hurt others."

Id. That statement, the Court reasoned, characterized the baker's religion as "something insubstantial and even insincere," which "is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law-a law that protects against discrimination on the basis of religion as well as sexual orientation." Id. The other commissioners did not object to this statement, nor did they object to two related statements made by another commissioner. Id. "And the later state-court ruling reviewing the Commission's decision did not mention those comments, much less express concern with their content." Id. at 1729-30.

         The Supreme Court, emphasizing that the statements were made "by an adjudicatory body deciding a particular case"-not "by lawmakers" or members of the executive branch-concluded that the "statements cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case." Id. at 1730.

         B. An Adjudicatory Body Must Treat Similarly Situated Parties Equally

         The Court also discussed "the difference in treatment" between Phillips' case and the cases of three other bakers who refused, on the basis of conscience, "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 Civil Rights Division[4] "found that the baker acted lawfully in refusing service," id. at 1730. The Supreme Court held that "the Commission's consideration of Phillips' religious objection did not accord with its treatment of these other objections." Id.

         II. Masterpiece Cakeshop does not affect our original decision because the adjudicatory bodies tasked with deciding this case remained neutral

         Throughout the course of this litigation, appellants have never alleged that the adjudicatory bodies tasked with deciding this case failed to remain neutral. Since the argument has never been made, we had no reason to discuss in our first opinion the importance of a neutral adjudicatory body or to comb the record for signs of bias from the courts.

         Even on remand, appellants still do not claim that our court or the Benton County Superior Court failed to adjudicate "with the religious neutrality that the Constitution requires." Masterpiece Cakeshop, 138 S.Ct. at 1724. Presumably, appellants do not make such a claim because the record would not support it. Indeed, the record reveals that the courts remained neutral "in all of the circumstances in which this case was presented, considered, and decided." Id. at 1732. In its decision, the Benton County Superior Court acknowledged that "Stutzman has a sincerely-held religious belief that is "entirely consistent" with her church's "doctrinal statement," and the superior court refused to "inquire further in the matter." CP 2355. In fact, the superior court went out of its way to note that it

intend[ed] no disrespect and d[id] not mean to imply either that Stutzman possesses any racial animus, or that she has conducted herself in any way inconsistently with Resolutions of the [Southern Baptist Church]'s direction to condemn "any form of gay-bashing, disrespectful attitudes, hateful rhetoric, or hate-incited actions" toward gay men or women.

CP at 2360 n.31. Our court also recognized Stutzman's "sincerely held religious beliefs," Arlene's Flowers, 187 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 of Masterpiece Cakeshop, appellants attempt to stretch its holding beyond recognition and to relitigate issues resolved in our first opinion and outside the scope of Masterpiece Cakeshop. We reject this attempt and instead comply with the Supreme Court's explicit mandate to "further consider[]" our original judgment "in light of Masterpiece Cakeshop." Arlene's Flowers, 138 S.Ct. 2671; see also Gonzalez, 420 F.3d at 7-8.[5]

         III. We deny the motions to supplement the record or to take judicial notice

         This court will grant a motion to supplement the record or to take judicial notice only if the proposed supplemental materials are relevant to the outcome of the 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," "the additional evidence would probably change the decision being reviewed," and "it would be inequitable to decide the case solely on the evidence already taken in the trial court." RAP 9.11 (a) (emphasis added). If the additional evidence is irrelevant, it is not needed to resolve the issues on review, it would not change the decision being reviewed, and it would therefore be equitable to decide the case without the irrelevant evidence. Additionally, in some ...


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