No First Amendment Right Not to Sell Bridal Outfit for Same-Sex Wedding

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:

Complainant, at the time a Missouri resident, emailed D. Auxilly, a New York based business that produces and sells attire, including bridal outfits, to inquire about a bridal jumpsuit she had seen advertised on one or more of D. Auxilly's social media pages. Specifically, complainant requested information about payment options for the jumpsuit. Complainant also informed D. Auxilly that as her fiancé had "fallen in love" with it after struggling to find anything she liked, complainant wanted to purchase it for their upcoming wedding.

Dominique Galbraith, D. Auxilly's owner and operator, responded on behalf of D. Auxilly advising complainant of the payment requirements of the business but that she would not be able to make the garment for a same-sex wedding because it would go against her religious beliefs. She also urged complainant and her fiancé to reconsider getting married….

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 which might constitute an "expressive statement." Nor was it tasked with creating a customized wedding website, as in 303 Creative LLC v. Elenis (2023). Instead, D. Auxilly refused to sell the wedding garment it had previously designed and which it had marketed to the public. While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement. Neither would D. Auxilly's "speech" be compelled here by requiring it to sell the previously designed and marketed garment.

Enforcement of the [law] here also does not violate D. Auxilly's right to free exercise of religion. The statute is "neutral, both on its face and due to a lack of evidence that it targets religious conduct for a distinctive treatment."

{[T]he Division had jurisdiction in the instant matter because the discriminatory conduct occurred in New York and its impact was felt in the state. Complainant reached out to D. Auxilly, a business which markets its clothes as "made in New York," seeking to purchase goods from this New York business. D. Auxilly's discriminatory conduct based upon complainant's sexual orientation deprived complainant of an opportunity to engage in commercial activity here. Indeed, by affirmatively labeling its products as being "made in New York" but then refusing to sell those same "New York" products to people 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. Additionally, the fact that complainant communicated with D. Auxilly online through social media rather than traveling to a New York storefront does not deprive petitioner of jurisdiction over this matter.}

Finally, we find the awards of compensatory damages [$5,000] and civil penalties proper. The award to complainant is reasonably related to the wrongdoing, supported by evidence before the Division, and in line with other awards for similar injuries. Likewise, the civil penalty of $20,000 is neither disproportionate to the offense nor does it shock the conscience.

My thoughts:

1. Bridal jumpsuit! New one on me. A quick Google Images search further enlightened me.
2. Pedantically speaking, wouldn't it be "her fianceé" rather than "her fiancé"?
3. Oh, wait, there's a legal issue here. Well, I think that there's a First Amendment right not to be compelled to create speech, such as photos, videos, and web sites, and I've argued this since 2012. But I don't think there's such a right as to fundamentally nonspeech products, even ones that people use as conventional parts of ceremonies, such as cakes or jumpsuits (as I've argued since 2017). The precise line, of course, can at times be fuzzy, e.g., as to cakes or jumpsuits that have specific expressive decorations (e.g., words, possibly rainbow designs, etc.), but it's still a sensible line; for more on that, see this amicus brief that Dale Carpenter and I put together in Masterpiece Cakeshop.
4. 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.

Comments

[The Margrave of Azilia]

According to this map, New York does *not* have a state Religious Freedom Restoration Act (RFRA).

https://becketfund.org/research-central/rfra-info-central/map/

Of course, before 1990, the *principles* of RFRA applied to *all* the states - even New York - thanks the First and Fourteenth Amendments. This situation was thanks to forward-thinking judges like Earl Warren.

Then, in 1990, under the leadership of Antonin Scalia, the Court threw those old protections for religious freedom into the trash.

Congress tried to correct the situation, but the Court (with Scalia cheerleading) wouldn't let this happen.

So Congress protected religious freedom under *federal* statute, while large numbers of states made their own RFRAs. Only a shameful group of repressive states refuse to recognize this essential concept of religious freedom. New York is one of the shameful, retrograde states.

[Randal]

Would you be ok with a disclosure rule that businesses who claim religious exemptions to civil rights laws have to state as much on promotional material and retail sites? I would like to be able to avoid patronizing such establishments.

This is a weird moment in time where progressives may shift from prohibiting "No Blacks Allowed" signs to requiring them.

[The Margrave of Azilia]

There's nothing abnormal about providing dresses for real (man/woman) weddings but not fake "weddings." Requiring disclaimers would represent a concession to madness.

[Randal]

Wait so your religious exemptions apply to gay weddings but nothing else? This is the RFRAWRTHOMO?

[The Margrave of Azilia]

"so your religious exemptions apply to gay weddings but nothing else?"

Are you posting in response to what the voices in your head tell you?

Please respond to what people in this conversation actually say.

[The Margrave of Azilia]

[moved]

[Dolly’s Pardon (formerly Malika)]

It would be closer to madness to act like same sex marriages are not a commonly accepted legally protected thing.

[The Margrave of Azilia]

I know they're commonly accepted and legally protected.

For that matter, the Republican Party is commonly-accepted in many parts of the country. Should I accuse you of failure to recognize that fact, simply because you're not a Republican?

[Dolly’s Pardon (formerly Malika)]

The Margrave of Azilia 49 minutes ago
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Mute User
There's nothing abnormal about providing dresses for real (man/woman) weddings but not fake "weddings." Requiring disclaimers would represent a concession to madness.

[Agammamon]

If you would like to avoid those establishments why can you not just do that? You can not talk to people? Government has to do everything for you? You can not navigate the most basic parts of socialofe without government violence?

[Randal]

Do you make the same objection to all labelling and transparency laws? "Figure out for yourself whether the restaurant follows standard health and safety practices!"

[Josh R]

Firstly, the principles of RFRA applied to the Free Exercise clause only from 1963 (Sherbert v. Verner) to 1990. Secondly, religious objectors often lost (see for example, United States v. Lee, 1982) even though the cases were supposed to be decided under strict scrutiny, prompting the phrase "feeble in fact" in contrast to "fatal in fact" in speech cases. Thirdly, it appears religious objectors are winning more often when RFRA applies (see for example, Hobby Lobby where the Court applied the "least restrictive means" standard).

I oppose giving religious objectors special treatment (except perhaps in specific cases explicitly authorized by statute). Equal treatment is all Free Exercise requires, and is all that is justified in most cases.

[The Margrave of Azilia]

"giving religious objectors special treatment"

That's a rhetorical framing device, not to be confused with reality.

If it helps you, think of religious belief as if it were a disability, hindering people from doing certain things.

Telling a guy in a wheelchair that he has to climb the staircase to the courtroom "just like everyone else" (a case which actually arose) is *not* equality. It's discrimination based on disability.

Telling a Jewish prisoner that he has to eat the pork sausage offered him at dinner "just like everyone else" is not equality. It's discrimination based on religion.

Back when New York state was Protestant-dominated, a judge who attributed only two sacraments to his Protestant religion nevertheless recognized that Catholics had the right to an *additional* sacrament - Confession - and that it would violate religious freedom to force priests to violate the Confessional seal - although of course the prosecutor said priests had to disclose evidence of crime just like "everyone else." Everyone else meaning, of course, Protestants who didn't have any confessional seal to break.

https://firstamendment.mtsu.edu/article/people-v-philips/

[Josh R]

Giving an exemption based on a religious objection discriminates against those who object on a secular basis. I would apply the "you don't have to eat pork" rule to everyone.

[Glaucomatose]

I don't recall states giving a get-out-of-jail-free card to anyone who claimed a religious justification for their law-breaking, even before Employment Division v. Smith. Your homophobia is not somehow more special just because you say it comes from Jesus.

[The Margrave of Azilia]

"I don't recall states giving a get-out-of-jail-free card to anyone who claimed a religious justification for their law-breaking, even before Employment Division v. Smith."

I don't recall any such a thing, either.

The RFRA rule is that serious restrictions on religious practice can only be imposed if doing so is the least restrictive means of achieving a compelling government interest.

Are you going to claim that there is such a shortage of gay and gay-friendly bakers and florists that gays can either get their flowers and cakes from traditional Christians or have no cake or flowers at all?

You'd have to prove something like that in order to defeat a religious claim under RFRA.

You want the power to restrict religion even without a compelling interest, or if there are no less-restrictive means.

In other words, you want to restrict religion even when there's no need to so.

This is because you have an anti-religious animus.

[Dolly’s Pardon (formerly Malika)]

“The RFRA rule is that serious restrictions on religious practice”

A major problem is that the courts defer almost completely to the complainant about whether the restriction is serious or minor and to many zealots every imaginable jot and tittle being “restricted” in even the slightest ways are the most serious restrictions EVAH!!!

[The Margrave of Azilia]

Are you aware that courts have litigating the RFRA standards for years - even before RFRA itself?

[Dolly’s Pardon (formerly Malika)]

What does that have to do with the price of dresses in China?

[Glaucomatose]

The RFRA rule is that serious restrictions on religious practice can only be imposed if doing so is the least restrictive means of achieving a compelling government interest.

I'm aware of that. What case law do you have, pre-Employment Division v. Smith, that imposed that same rule on states?

Are you going to claim that there is such a shortage of gay and gay-friendly bakers and florists that gays can either get their flowers and cakes from traditional Christians or have no cake or flowers at all?

You'd have to prove something like that in order to defeat a religious claim under RFRA.

That would be the case if you think the "compelling interest" of anti-discrimination laws were to ensure that people who are discriminated against have at least one remaining vendor of last resort who is willing to sell to them. That is, um, not the case.

[The Margrave of Azilia]

"What case law do you have, pre-Employment Division v. Smith, that imposed that same rule on states?"

Sherbert v. Verner, 374 U.S. 398 (1963)

https://supreme.justia.com/cases/federal/us/374/398/

Wisconsin v. Yoder, 406 U.S. 205 (1972)

https://supreme.justia.com/cases/federal/us/406/205/#tab-opinion-1949691

[santamonica811]

Seems pretty straightforward. When I market an item to people in general, I can't refuse to sell it to you because you are Jewish...even though a Jew wearing it offends my sincere religious beliefs. Or refuse to sell to a black person, because of my religion. Or to a disabled person, due to my interpretation of Scripture.

Not a very difficult case, with the actual fact pattern.

[Joe_dallas]

Wedding dress design is often an artistic design created by the shop. If it was off the rack, then marketing to the general public would capture all potential customers.

[Randal]

This dress was effectively off the rack. Read the post.

[The Margrave of Azilia]

It's rhetorically easy to take the demgogic position that "everything is equal to everthing else!" You know it's not true, but it gives you valuable Internet Debating Points.

The discrimination laws themselves are discriminatory. They prohibit discrimination based on skin color but not on height (no midgets in the National Basketball Association) or age for those under 18 (no driver's licenses for 10-year olds) or sports-team preference, etc., etc.

The interesting question - the question you understandably want to avoid - is which forms of discrimination should be illegal - like race - and which forms of discrimination should be legal - like height, sports-team preference, or belief that you're a member of the opposite sex or believe you're made of glass.

https://www.bbc.com/news/magazine-32625632

https://the-avocado.org/2021/12/07/history-thread-the-case-of-the-glass-general/

Wake me up when you make a serious effort to distinguish between characteristics which ought to be protected and characteristics would should *not* be protected.

Try to base your arguments on evidence and logic, not "everyody else does it," or table-thumping.

[hobie]

Hayseeds 1962: "You ni**ers can't dine here."
Hayseeds 2026: "You gays can't dine here."

Also hayseeds: "Our deeply held religious beliefs (freedoms) are being violated!"

[The Margrave of Azilia]

As I said, you assert that which needs to be proved.

I forget what that logical fallacy is called, but it sure is stupid.

If you can show that having a particular skin complexion is, in all relevant ways, identical to thinking you're made of glass, or that you're the other sex, make that case.

Table-thumping is for people who know they don't have logic and reason on their side, and simply want to shout loudly enough that other people won't be able to hear themseves think.

[Dolly’s Pardon (formerly Malika)]

It’s just an argument by analogy, if you don’t think the analogy is apt stop pounding the table and mount an argument as to why.

[Agammamon]

Funny, but I bet if you tried to to into that MA lesbian bar in the news recently you would get your arse kicked by the clientele.

[Josh R]

No matter which classifications are protected, each individual is treated equally by the law. For example, a black midget is treated the same as white normal-height person. Both are protected based on their race and neither protected based on their height.

[The Margrave of Azilia]

The law, in its majestic equality, forces prisoners with no objection to eat pork to follow the same prison rules as prisoners to whom pork is an abomination eating which cuts him off from his people.

[Josh R]

I'm not following how that analogy calls into question having race as a protected classification while height is not.

[Glaucomatose]

The interesting question - the question you understandably want to avoid - is which forms of discrimination should be illegal - like race - and which forms of discrimination should be legal - like height, sports-team preference, or belief that you're a member of the opposite sex or believe you're made of glass.

Who says anyone wants to avoid that question? It's very well defined in pretty much every anti-discrimination law on the books. The categories that are subject to protection are decided through the political process. If you want a right to discriminate based on sexual orientation, then go make your argument and try to get the people of New York to agree with you.

[Dolly’s Pardon (formerly Malika)]

Footnote 4 from Carolene Products takes a stab at this as well.

[The Margrave of Azilia]

"The categories that are subject to protection are decided through the political process."

You seem to think that this is an answer to my question, rather than a concession that you lack an articulable principle beyond the whims of the mob.

[Dolly’s Pardon (formerly Malika)]

In a democracy the “whims of the mob” are kind of important.

[The Margrave of Azilia]

Yes, but not automatically principled, and I was asking you to furnish me with a principle.

[Dolly’s Pardon (formerly Malika)]

It’s a principle that in a democracy the people can largely decide which anti-discrimination laws cover which categories.

[The Margrave of Azilia]

Yes, it's a principle. It's a bad principle.

[Dolly’s Pardon (formerly Malika)]

I’m sorry you think democracy rule is such a bad principle. Good news for you is there are still many countries that agree with you, have you considered moving to one?

[Glaucomatose]

I wasn't answering the question. I was rebutting your false claim that nobody wants to discuss the question at all. People are perfectly willing to do so, and have come up with answers that are generally satisfactory to most people, no matter how much they upset you. This generally involves categories of people who have historically been discriminated against based on irrational animus.

[The Margrave of Azilia]

In this particular thread the anti-religous-freedom arguents seem fairly silly.

[Glaucomatose]

Which arguments are those?

[Randal]

The interesting question - the question you understandably want to avoid - is which forms of discrimination should be illegal - like race - and which forms of discrimination should be legal - like height, sports-team preference, or belief that you're a member of the opposite sex or believe you're made of glass.

Ok add this to the trove of examples of your ignorance. Again, I applaud your willingness to reveal your blind spots, but I urge you to avoid concluding that because you don't know something, it is unknowable.

There's a very well-defined legal standard for determining whether a class qualifies as a suspect class or not. (And as Mr. Comatose points out, the political process also plays a role in individual statutes like this one.)

But that's all just the means. More important is the underlying principle, which I will elucidate for your education.

Discrimination is natural. Not only is it human nature, it's a critical component of human intelligence. We're attracted to healthy-looking people and turned off by the sickly. We like funny people with well-adjusted personalities and avoid basket-cases. We prefer tasty food to food that smells rotten. We visit the shop with a clean stoop and skip the one with a broken window.

So for the most part, discrimination is a good thing. We even laud people with "discriminating tastes" for example.

It's only a problem when it becomes substantial, unjustified de facto oppression of a helpless group. That means, for a group to be protected, they have to be:

* actually disfavored
* by enough people to actually matter
* due to an identifiable trait
* in ways unrelated to the trait
* where said trait is immutable.

The final point being the "helpless" part.

So if there were actually a substantial portion of the population that didn't support, for instance, inter-height marriage, or short people had to sit at the back of the bus, then yeah, "short people" could become a suspect class. But the existence of Big & Tall clothing shops and the fact that the NBA has a disproportionate number of tall employees doesn't count since there's a rational relationship there.

In short, the culture has to turn against a group of people before it qualifies for protection. That's why suddenly the question of protecting trans people has come up: you all suddenly turned against them for political gain. Now they qualify under the first two points, where they probably wouldn't have just a decade ago.

[Agammamon]

Sure. But you are also not allowed to market it to a specific category either. Well, not if the category is straight or white.

[Davy C]

Hypothetical situation. Someone comes in wanting a dress for a wedding which is between a 40 year old and a 15 year old. Do you think the shop should have to sell it, on pain of falling afoul of age discrimination laws?

Personally, I think a shop should generally have the right to refuse to sell something if they know it will be used for something they find objectionable. Especially if that something is nonessential.

[Dolly’s Pardon (formerly Malika)]

I think it’s weird to care what someone who is buying something from you is going to do with it.

[Davy C]

So you'd facilitate the wedding between the 40 year old and the 15 year old, and think it was weird that anyone would care? OK, I guess you're entitled to your opinion.

[Dolly’s Pardon (formerly Malika)]

Facilitate? By selling a dress?

You’re like the guy at the farmer’s market selling cucumbers who stops every purchase and says “now, what do you intend to do with that, I ain’t facilitating you know what with one of my cukes!”

[JoeFromtheBronx]

Personally, I think a shop should generally have the right to refuse to sell something if they know it will be used for something they find objectionable. Especially if that something is nonessential.

Okay. But discrimination laws are a thing.

Your 15/40 situation is much less likely to be covered than refusing to sell something based on religion or race.

[KevinP]

"While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement."

Fat shaming. HOW DARE THEY!

[The Margrave of Azilia]

Dear Lord, don't give them ideas.

[Agammamon]

Bake the cake bigot.

There is, of course, a First Amendment right to not sell one to a mixed sex couple.

[Brett Bellmore]

Pick the cotton, bigot.

[Glaucomatose]

Is your understanding of slavery that the slaves freely chose to pick cotton all day and not get paid for it, they just didn't like who was buying it?

Gosh, our schools really are in trouble.

[Dolly’s Pardon (formerly Malika)]

That’s…a weird take.

[Brett Bellmore]

My understanding is that we had once agreed that people were free to refuse to work for another person. Whether the terms of the job were good or not didn't enter into it.

[Dolly’s Pardon (formerly Malika)]

So the bigot is the slave?

Given the history of bigotry and slavery in the US that’s a very weird take.

[Agammamon]

There used to be something in the 1st about free association. That is gone along with freedom of religion.

You still have freedom of speech as long as you only say what you are allowed to say.

[Dolly’s Pardon (formerly Malika)]

There’s actually nothing in the text of the First Amendment about free association, it was kind of recognized as a penumbra emanation thing iirc.

[JoeFromtheBronx]

It's a well-recognized "something in" that shows that the penumbra/emanation concept has some degree of bite.

And it is still around, contrary to the other comment. There was traditionally, recognizing a freedom of association, an understanding that public accommodations can be subject to equal access laws.

[Bored Lawyer]

This seems correct under current precedent.

That said, I have yet to hear a good explanation why the "free speech" part of the First Amendment restricts even generally applicable laws, but the "free exercise [of religion]" clause does not.

Also: "While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement."
Not sure that is correct, I would think that sizing alteration has to be done in a way that would still flatter the wearer. But if it's just a matter of ordering a size 10 vs. a size 6, then, yes, no creativity involved.

[MollyGodiva]

This ruling is correct.