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.

The post No First Amendment Right Not to Sell Bridal Outfit for Same-Sex Wedding appeared first on Reason Magazine.

From Butler v. Lipscy, decided Monday by Minnesota Court of Appeals Judge Keala Ede, joined by Judges Diane Bratvold and Jon Schmidt:

Butler alleged that Lipscy engaged in acts of harassment targeting Butler and her children, including: following, monitoring, or pursuing Butler; making unwanted visits to Butler; frightening Butler with threatening behavior; taking pictures of Butler without permission; and using social media to harass Butler….

The facts, according to the appellate court's summary of the trial court findings, were this:

At the time the district court issued the HRO, Butler was a licensed marriage and family therapist who served "historically marginalized communities." This included members of "the Queer community," which Butler defined as "the Two Spirit (2S)/Gay/Lesbian/Bisexual/Transgender/Intersex/etc. community as a whole and individually." Butler was also "active in her local Itasca Pride board and community as a volunteer and current board member." She has three children, one of whom is "non-binary."

Lipscy held "Christian beliefs" that she posted about on the internet. And Lipscy administered a webpage called "Grand Rapids Rant."

Itasca Pride held a festival on June 23, 2024. Before that event, Lipscy posted on the internet about a public gathering called, "Protect the children from Pride/Drag show and Walk with Prayer," which Lipscy scheduled for the same date, time, and location as the Itasca Pride Festival. Before the events occurred, Lipscy wrote on the internet: "But if you cause one of these who trust in me to fall into sin, it would be better for you to have a large millstone tied around your neck and drowned in the depths of the sea. #BeTheirVoice Matthew 18:6." Lipscy also used the internet to encourage people to attend and to wear white shirts in opposition to Itasca Pride and in celebration of "traditional family values." At the June 23 Itasca Pride event, Lipscy took pictures of Butler's children, and Butler's husband told Lipscy to stop.

On September 28, Lipscy posted images from an Itasca Pride webpage on her Grand Rapids Rant internet site, with her own captions. These images included Butler's children with captions such as "Sickening," "Poor children," and "Those poor poor kids." Lipscy also identified Butler by name, listed Butler's title as "local therapist"—which "insinuate[ed] … [that] Butler was not a real therapist"—and referred to an event coordinated by the Minnesota Department of Natural Resources and Itasca Pride as having "influence over … children."

On October 20, Lipscy attended an event led by a school-board candidate who was advocating for a prohibition on transgender females in female sports. Lipscy broadcast the event on her Grand Rapids Rant webpage, identified Butler's husband, and described him as "pushing for boys to be in girls' bathrooms and supporting bringing kids to drag events." More specifically, Lipscy stated that Butler's husband "wasn't truly interested [on the day of the event] …, he just wanted to report back. Silly boy, [he] could've just watched live with [Butler]." In addition, "Butler's children attend the same school as … Lipscy's niece," and "Lipscy ha[d] been at the school since the above-described incidents … occurred."

Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." She "installed [four] cameras on her property and [two] cameras on her vehicle," "spent sessions with her clients discussing concerns the clients ha[d] about their safety given … Lipscy's social media posts referring to … Butler," "removed signage from her office, met with clients in a place other than her office, and met via tele-health to address concerns about client safety."

Her children became "afraid to go out in public without a parent and [had] an increased fear when out in the community." One of Butler's children "changed the way they dress[ed] because they [did] not want to get physically or emotionally hurt." Butler's children were "fearful that their photos [would] be put online to shame their family," "ask[ed] in public if they [were] safe," and "question[ed] whether people around them [were] 'people that hate Queer people.'"

The court issued a harassment restraining order that provided, in relevant part, that Lipscy

• "shall not harass … [Butler] or her minor children included in the Petition";
• "shall have no direct or indirect contact with … [Butler] or her minor children including any visits, phone calls, contact via electronic means such as email or social networking sites, threats or assaultive behavior to the protected persons, damaging or stealing property belonging to the protected persons, breaking into and entering the protected persons' residence, and/or taking pictures of the protected persons without permission from … [Butler]";
• "is prohibited from being within 500 feet of … [Butler's] home" or "job site"; …
• "is restrained from harassing, stalking, or threatening the protected persons, or engaging in other conduct that would place the protected persons in reasonable fear of bodily injury to that person"; and "is prohibited from the use, attempted use, or threatened use of physical force against the protected persons that would reasonably be expected to cause bodily injury."

Given that the court had found that Lipscy's social media posts referring to Butler were "harassment," and then restrained Lipscy from "harassing" Butler, the order thus forbade Lipscy from continuing to mention Butler. And indeed the appellate court acknowledged this, stating (emphases added) that the HRO

• "allows Lipscy to express her religious views, provided that she does not mention Butler and her children and does not approach Butler, her home, and her workplace," and
• "merely prohibits [Lipscy] from directing harassing conduct toward Butler and her children—such as photographing them, repeatedly naming them, and targeting them."

The appellate court upheld the order, reasoning that Lipscy's actions could indeed be found to be harassment, defined by the Minnesota HRO statute as "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another":

The district court determined that Lipscy "engaged in harassment," reasoning that Lipscy had: followed, monitored, or pursued Butler and her children; frightened Butler and her children; taken pictures of Butler's children without permission; and used social media to harass Butler on multiple occasions. In making this determination, the district court relied on evidence in the record that Lipscy had reposted pictures of Butler's children from the Itasca Pride webpage to the Grand Rapids Rant internet site with her own captions including: "Sickening," "Poor children," and "Those poor poor kids."

The district court also based its decision on evidence that Lipscy had reposted pictures from the Itasca Pride event while referring to Butler in a manner that questioned Butler's credentials as a therapist and had shared a video of Butler's husband while referring to Butler by name. And the district court made specific findings about how Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." …

And the court held that this doesn't violate Lipscy's free speech or religious freedom rights, because it is directed only at "speech or conduct that … is in violation of one's right to privacy," which Minnesota courts had held is constitutionally unprotected.

I think such an injunction is unconstitutional, at least as to the prohibition on repeatedly naming Butler in posts; for more on such orders, and the appellate decisions that mostly set them aside, see my Overbroad Injunctions Against Speech (Especially in Libel and Harassment and Cases) article. And while I'm sympathetic to the argument that adults should keep the children out of this, I'm not sure it's constitutional even as to that. But in any event, the Minnesota Court of Appeals thought the injunction was permissible, and I thought it worthwhile to note that.

Sara Jane Baldwin (Gender Justice) represents plaintiff.

The post Anti-Transgenderism/Anti-Homosexuality Activist Ordered to Stop Talking About Local Therapist/Pride Activist appeared first on Reason Magazine.