From N.Y. State Div. of Hum. Rts. V. D. Auxilly NYC LLC, decided today by New York appellate judges Sallie Manzanet–Daniels, Manuel Mendez, Barbara Kapnick, Bahaati Pitt–Burke, and Matthew Parker–Raso:
The complainant, then residing in Missouri, reached out by email to D. Auxilly, a New York–based company that designs and sells apparel, including wedding garments, after noticing a bridal jumpsuit advertised on one or more of D. Auxilly’s social media profiles. Specifically, she asked about available payment methods for the jumpsuit. She also informed D. Auxilly that her fiancé had “fallen in love” with the piece after she had struggled to find something she liked, and she intended to buy it for their upcoming nuptials.
Dominique Galbraith, the owner and operator of D. Auxilly, replied on behalf of the firm, detailing the payment terms but stating that the garment could not be produced for a same‑sex wedding due to her religious beliefs. She further urged the complainant and her fiancé to rethink their plans to marry….
The First Amendment does not shield D. Auxilly from liability for this discrimination. Unlike the baker in Masterpiece Cakeshop v. Colorado Civil Rights Comm (2018), D. Auxilly was not asked to design and create customized items that might amount to an “expressive statement.” Nor was it asked to craft a customized wedding website, as in 303 Creative LLC v. Elenis (2023). Instead, D. Auxilly declined to sell a wedding garment it had previously designed and marketed to the public. Although the garment would likely require adjustments for sizing, such alterations would not constitute an expressive statement. Nor would D. Auxilly’s “speech” be compelled here by forcing it to sell the garment it had already designed and marketed.
Enforcement of the [law] here likewise does not infringe on D. Auxilly’s right to free exercise of religion. The statute is neutral on its face, and there is no evidence that it targets religious conduct for special treatment.
{[T]he Division possessed jurisdiction in the instant matter because the discriminatory conduct occurred in New York and its effects were felt within the state. The complainant contacted D. Auxilly, a business that markets its clothing as “made in New York,” seeking to purchase goods from a New York–based enterprise. D. Auxilly’s discriminatory conduct based on the complainant’s sexual orientation deprived her of an opportunity to engage in commercial activity here. Indeed, by labeling its products as being “made in New York” yet refusing to sell those same “New York” items to individuals of a certain sexual orientation, D. Auxilly implicitly associated the City and State of New York with a discriminatory act, and the impact test is satisfied. Moreover, the fact that the complainant communicated online via social media rather than visiting a New York storefront does not deprive the petitioner of jurisdiction over this matter.
Finally, the awards of compensatory damages [\$5,000] and a civil penalty are warranted. The award to the complainant bears a reasonable relation to the wrongdoing, is supported by the evidence before the Division, and aligns with awards in comparable cases. Likewise, the civil penalty of \$20,000 is neither disproportionate to the offense nor does it shock the conscience.
My thoughts:
- Bridal jumpsuit! That’s a new one to me. A quick Google Images search illuminated the topic a bit more.
- Pedantically speaking, wouldn’t it be “fiancée” rather than “fiancé”?
- Ah, there’s a legal issue here. I’ve argued for years that there is a First Amendment right not to be compelled to create speech—such as photographs, videos, and websites—but I don’t see a corresponding right to compel production of fundamentally non-speech items, even those that play a ceremonial role, such as cakes or jumpsuits (a view I’ve defended since 2017). The precise boundary can be murky in cases involving items with explicit expressive embellishments (for example, words or rainbow designs), but the core line remains sensible; for related context, see the amicus brief Dale Carpenter and I authored in Masterpiece Cakeshop.
- For more on the designer, see here and here; for more on the case, see here.
Melissa Franco and Michael K. Swirsky (New York State Division of Human Rights) represent the state.
