A Manhattan-based bridal company has lost its appeal after refusing to sell an advertised wedding jumpsuit to a Missouri woman because she was marrying another woman. New York's Appellate Division, First Department, ruled on October 22 that D. Auxilly NYC LLC violated the state's Human Rights Law, upholding $5,000 in damages and a $20,000 civil penalty imposed by the New York State Division of Human Rights against the business.
The case began when the consumer, described in court records only as a Missouri lesbian, spotted a social media advertisement from D. Auxilly NYC LLC for a wedding bridal jumpsuit and reached out hoping to buy it for her upcoming wedding to her fiancée, according to Gay City News. Dominique Galbraith, the company's owner and operator, told her the business would not make the garment for a same-sex wedding because doing so would go against her religious beliefs, and, per the court's account, urged the consumer and her fiancée to reconsider getting married at all. The woman later filed a complaint with the New York State Division of Human Rights, which enforces the state's ban on sexual-orientation discrimination by businesses that sell goods or services to the public.
How New York Claimed Jurisdiction Over an Out-of-State Sale
D. Auxilly argued that New York's anti-discrimination law simply did not reach this dispute, since the consumer lived outside the state and was outside New York during all the communications. The appellate panel rejected that defense, applying what the Gay City News report described as an impact test and finding that the transaction, the garment work and the resulting payment would all have been connected to New York, since D. Auxilly sells goods in the state and markets them as made there.
The court also found it made no difference that the consumer reached the business by email rather than walking into a physical storefront. As Reason's Volokh Conspiracy noted, the fact that the complainant communicated with D. Auxilly online through social media rather than traveling to a New York storefront did not deprive the state of jurisdiction. The panel, which included five judges and voted unanimously to enforce the Division of Human Rights order, concluded that the discrimination itself occurred in New York.
Business Says It Targeted the Garment's Use, Not the Customer
D. Auxilly tried a different line of defense on the merits, arguing it hadn't discriminated based on the consumer's sexual orientation at all, but rather based on the use to which the garment would be put. The court was unpersuaded, stating plainly that same-sex marriage is, in the panel's words, “inextricably tied to sexual orientation.” The company separately argued that producing the outfit for a same-sex wedding would violate its sincerely held religious beliefs, but the court found the Human Rights Law facially neutral and ruled that D. Auxilly had no religious-belief exemption from compliance once it chose to do business with the public.
The appellate ruling affirmed the Division of Human Rights' decision in full, which had itself adopted an administrative law judge's finding that D. Auxilly violated the ban and recommendation that damages and a fine be imposed. Court documents indicate Michael K. Swirsky represented the New York State Division of Human Rights in the matter, according to the Gay City News account. The court also found that the $5,000 damages award and $20,000 fine were consistent with awards in similar New York discrimination cases.
Why the Business Couldn't Lean on Supreme Court Precedent
D. Auxilly's legal team pointed to recent Supreme Court decisions protecting expressive business owners from being compelled to create messages they disagree with, but the appellate panel drew a sharp line between those cases and this one. The court distinguished the dispute from both Masterpiece Cakeshop and 303 Creative because those cases involved expressive statements by the sellers themselves, while this consumer simply wanted an item that had already been designed and marketed to the public.
In 303 Creative LLC v. Elenis, the U.S. Supreme Court held that the First Amendment prohibited Colorado from forcing a website designer to create expressive designs conveying messages with which she disagreed, characterizing the wedding websites at issue as pure speech. The Masterpiece Cakeshop opinion, for its part, recognized that religious and philosophical objections to same-sex marriage can involve protected views and, in some instances, protected forms of expression. New York's appellate panel found neither precedent applicable here, since D. Auxilly was being asked to sell a pre-made jumpsuit rather than craft a new expressive work.
