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:
Bridal jumpsuit! New one on me. A quick Google Images search further enlightened me.
Pedantically speaking, wouldn't it be "her fianceé" rather than "her fiancé"?
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.
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.
On December 2, the Supreme Court will consider constitutional challenges to "assault weapon" bans in Connecticut and Cook County, Illinois, that cover widely owned rifles, including the AR-15. As the plaintiffs in those consolidated cases see it, such laws plainly violate the Second Amendment because they prohibit arms in common use for lawful purposes. In briefs filed on Wednesday, Connecticut and Cook County urge the justices to reject that test, saying a weapon's popularity is not dispositive. The relevant question, they say, is whether their rifle restrictions fit a historical tradition of banning "unusually dangerous weapons."
Cook County and Connecticut have the burden of showing that their laws are "consistent with this Nation's historical tradition of firearm regulation," the test established by the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen. On the face of it, that is a daunting challenge.
In the 2008 case District of Columbia v. Heller, the Supreme Court said the Second Amendment protects the right to own "bearable arms" that are "in common use" for "lawful purposes like self-defense." That description indisputably encompasses "AR-15 platform and similar semiautomatic rifles," the firearms at issue in these cases. But Heller also recognized "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Cook County and Connecticut argue that the rifles they have deemed intolerable fall into that category.
"There is a robust historical tradition of regulating unusually dangerous weapons that
compromise public safety," Cook County says. "Such regulations, which long
predate the founding, have included outright bans and other restrictions on exceptionally dangerous weapons like launcegays, trap guns, Bowie knives, and slung shots."
Cook County argues that its ordinance is "relevantly similar" to those historical restrictions because it targets "exceptionally lethal weapons that are disproportionate to the end of self-defense." AR-15s are "offensive weapons of war designed for maximum lethality and are not customarily used for self-defense," the brief says. "The purpose and operation of the ban is consistent with our Nation's historical tradition and accounts for the exceptional dangerousness of these technologically advanced weapons."
The ban is "an appropriate contemporary restriction implemented by the legislature in response to dramatic technological change and unprecedented societal concern," the brief says. "It is tailored to respond to the particular dangers presented in areas with mass casualty exposure and acute public safety risk."
Connecticut offers a similar argument. One problem with this defense is the premise that "assault weapon" bans focus on "exceptionally lethal weapons." As critics of such laws have been pointing out for decades, the features they target, such as folding stocks, pistol grips, and barrel shrouds, do not affect a rifle's basic operation. With or without them, a rifle fires the same ammunition at the same rate with the same muzzle velocity. And because AR-15s use intermediate-caliber ammunition, they are arguably less lethal than shotguns and many hunting rifles that are not classified as "assault weapons."
Cook County's emphasis on technological developments is also questionable. Constitutional guarantees establish principles that courts routinely apply to technologies that did not exist at the founding. Although the Framers did not have radio, television, or the internet, for example, the First Amendment nevertheless constrains government regulation of those media.
More specifically, Heller rejected the idea that modern weapons are not covered by the Second Amendment by recognizing a constitutional right to own semiautomatic pistols. The Supreme Court said "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." The Court confirmed that point in the 2016 case Caetano v. Massachusetts, which involved a state ban on stun guns.
Cook County also asserts that AR-15s are not suitable for self-defense, a claim that would be hotly contested by many owners of such rifles, who commonly report using them for that purpose. "Plaintiffs have shown that AR-15s are well-adapted for self-defense," U.S. District Judge Peter Sheridan wrote in 2024, when he reluctantly concluded that New Jersey's AR-15 ban was inconsistent with Heller while expressing his dismay at that result. "Evidence has been presented to the Court that the build of the AR-15 makes it well-suited to self-defense because it is 'light weight, [has] very mild recoil, and [has] good ergonomics'; it is a weapon which is 'well suited to younger shooters, female shooters, and other shooters of smaller stature.'"
Sheridan added that "the AR-15's design features—including the effectiveness of its cartridge for self-defense use and its better continuity of fire when used with available magazines—make the AR-15 a good choice for self-defense." And he noted that "the AR-15 has been used recently in several, relatively high-profile self-defense events in Florida, Illinois, Texas, Pennsylvania, and Oklahoma."
Cook County and Connecticut are also wrong in suggesting that self-defense is the only "lawful purpose" that matters. While Heller emphasized the use of handguns "in defense of hearth and home," it did not say that was the full extent of the Second Amendment right. To the contrary, the phrase "lawful purposes like self-defense" implies that the right extends to other uses, such as hunting, pest control, and target shooting. The decision explicitly mentioned hunting as a "reason Americans valued the ancient right."
The briefs are misleading in another way that may prove decisive. They conflate "dangerous and unusual" with "unusually dangerous," which is not the same thing.
During the 19th century, state legislators restricted (and sometimes banned) weapons such as Bowie knives, spears, sword canes, slungshots, and brass knuckles. But the historical evidence suggests those weapons were not targeted simply because they were "unusually dangerous." Legislators were also concerned about how the weapons were typically used.
Solicitor General D. John Sauer, who filed a brief supporting the challenges to the AR-15 bans, notes that the 19th-century laws targeted weapons associated with "duels, brawls, and other criminal activities." And in reviewing those laws, state courts distinguished between arms favored by criminals and arms commonly used for lawful purposes.
In 1871, for example, the Tennessee Supreme Court held that legislators could ban weapons that were "not usual" but could not ban "the usual arms of the citizen." The top courts of Texas, Arkansas, West Virginia, North Carolina, and Michigan concurred that the right to arms encompassed weapons commonly owned by law-abiding people, including rifles.
AR-15s and similar rifles readily pass that common-use test. In January, the National Shooting Sports Foundation, the gun industry's trade association, reported that Americans own more than 32 million "modern sporting rifles," its preferred term for the models covered by "assault weapon" bans. Survey data suggest that somewhere between 16 million and 25 million Americans have owned AR-15-style rifles. Last year, a unanimous Supreme Court described the AR-15 as "the most popular rifle in the country."
According to Cook County and Connecticut, however, none of that matters. "Once it is established that a regulation pursues a legitimate public safety objective in a permissible manner, raw ownership numbers cannot immunize a firearm from regulation," Cook County says. It argues that opponents of its ordinance have misconstrued the significance of the common-use test and misunderstood how it interacts with Bruen.
"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," the Supreme Court said in Bruen. "To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"
The common-use question, Cook County argues, figures only in the first Bruen step: "the inquiry whether the weapon at issue is one 'the Second Amendment protects.'" But even if ownership of AR-15s is covered by "the Second Amendment's plain text," it says, that does not resolve the question of whether they can be banned, which depends on the historical analysis required by the second step of the Bruen test.
"This Court's decision in Bruen confirms that the Second Amendment's step-two inquiry does not insulate popularly owned firearms from regulation," the brief says. In Bruen, it was "undisputed" that "handguns are weapons 'in common use' today for self-defense," including "outside the home." But "instead of being the end of this Court's inquiry, that observation was just the beginning." The decision also included an "extended analysis" of the historical laws that New York cited to justify its "proper cause" requirement for carry permits. "If lawful common use alone were enough to forbid regulation," Cook County argues, "there would have been no need to engage in that careful and prolonged analysis."
The question in Bruen was not whether the Second Amendment precludes "regulation." It was whether New York's specific approach, which required residents to demonstrate a "special need" before they were allowed to exercise the right to bear arms, was consistent with the historical tradition. That is why the Court considered (and rejected) the purported historical analogs that New York offered.
Cook County conflates requirements for carry permits, the issue in Bruen, with an outright ban on ownership, the policy it is defending. Connecticut likewise blurs the distinction between carry restrictions and complete prohibition.
"The Bowie knife was 'widely carried by Americans of all stripes,' including 'upstanding citizens and villains' alike," Connecticut's brief says. "The widespread use of Bowie knives and other weapons for lawful purposes did not prevent dozens of States from restricting those weapons." But those laws generally restricted or banned public carry. They rarely made it illegal to acquire or possess a Bowie knife, which is the approach that Connecticut and Cook County have taken with AR-15s.
That policy is hard to reconcile with Heller. I will quote Sheridan again, since his comments made it clear that he would have preferred to uphold New Jersey's AR-15 ban. Under Heller, he said, "a categorical ban on a class of weapons commonly used for self-defense is unlawful." Given "the Supreme Court's clear direction on this point," he concluded, New Jersey's law "is unconstitutional" as applied to "the Colt AR-15 for use for self-defense in the home."
Last July, the U.S. Court of Appeals for the 3rd Circuit agreed and went further, extending that conclusion to "the full class of semi-automatic rifles" banned in New Jersey. "Together, Heller and Bruen teach that bans or broad prohibitions on possessing or carrying of a class of weapons in common use for lawful purposes fail to find support in our Nation's tradition of firearm regulation," Judge Arianna Freeman, a Joe Biden appointee, wrote in the majority opinion. "That principle resolves our inquiry here."
To beat back the challenges to their laws, Connecticut and Cook County will have to persuade the justices that the 3rd Circuit's understanding of Heller and Bruen is wrong, meaning they are free to ban firearms in common use for lawful purposes. That seems like a tall order, and Cook County's position is especially puzzling. According to its brief, the fact that a weapon is covered by the Second Amendment does not mean Americans have a right to possess it. The more you think about that claim, the less sense it makes.
On November 3, the U.S. Supreme Court will hear oral arguments in a case that asks whether Colorado has unlawfully discriminated against a religious preschool because the school is barred from participating in the state's universal preschool program due to its refusal to accept LGBTQ families. In addition to involving multiple hot-button political and cultural issues, the case also has big implications for the future of federal antidiscrimination law.
St. Mary Catholic Parish v. Roy is not about a state law that directly prohibits a religious preschool from operating. Rather, at issue here is a government requirement that any preschool that wants to participate in the state's universal preschool program, and receive the public benefits that follow, must first satisfy various criteria, including that "each preschool provider provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability."
According to the Catholic preschools overseen by the Archdiocese of Denver, however, complying with that rule would force the schools to violate their religious beliefs. "It is undisputed that these preschools would otherwise be eligible [universal preschool] providers," the schools told the Supreme Court. "They are excluded solely because of their religious exercise—namely, their religious practices of ensuring that all enrolling families are supportive of the Catholic Church's teachings on sex and marriage and of treating enrolled four-year-olds in accordance with their biological sex."
These schools can point to a pair of recent Supreme Court precedents that will very likely count in their favor. In Espinoza v. Montana Department of Revenue (2020), the Court held that if a state provides educational subsidies that help parents send their children to private schools, the state "cannot disqualify some private schools solely because they are religious." Then, in Carson v. Makin (2022), the Court held that Maine's tuition assistance program violated the Constitution by excluding private schools that offered "sectarian" education. "A State's antiestablishment interest," the decision said, "does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise."
I would expect the outcome of St. Mary Catholic Parish v. Roy to follow in this same general pattern and hold something to the effect that when a state provides an educational public benefit, it must make some sort of accommodation for the religious views of the recipients.
In Other Legal News
Justice Elena Kagan made news a few months back when she defended her conservative colleagues on the Supreme Court from the oft-heard charge that they are totally in the tank for President Donald Trump. "I don't see this as a court that is just like, 'We're just going to rubber stamp what the current administration does.' You know, quite the opposite," Kagan said. "I think that that is a bad rap." In support of her argument, Kagan pointed to the fact that the Supreme Court had recently ruled against Trump on the two big issues that Trump himself valued the most: tariffs and birthright citizenship.
Kagan was in the news again on Tuesday, this time because she publicly blasted those same conservative colleagues for issuing decisions on voting rights and political gerrymandering that, in Kagan's words, have produced "a democracy that does not work as well as it should." According to Kagan, the Court's conservative majority "has kind of blinded itself to the very deleterious effects of their rulings on how the political system works."
Does this mean that Kagan has now stopped defending the conservative justices from the pro-Trump charge? Not at all. In fact, as The New York Timesput it, "she reiterated her defense of the conservative-dominated bench from a July appearance and said it was a 'bum rap' to suggest the court had been too deferential to Mr. Trump."
I don't know about you, but I find Kagan to be a refreshing public figure in these simplistic, partisan times. She is a staunch legal liberal with clearly stated objections to what the Supreme Court's conservative majority is getting up to, yet she refuses to be associated with the laziest progressive attacks on the Court. How many people of comparable public stature these days are willing to call out the shortcomings of their own side?
The battle to save the global court and its capacity to enforce accountability for the most heinous crimes is one struggle with many fronts, writes Marjorie Cohn.
A Russian ballistic missile fitted with a cluster warhead struck the historic Pecherskyi district of Kyiv overnight on 21–22 October 2026, damaging buildings near two of the Ukrainian capital’s principal religious complexes, President Volodymyr Zelenskyy has said.
The missile landed between the Kyiv-Pechersk Lavra, a UNESCO World Heritage site, and the Holy Presentation (Sviato-Vvedenskyi) Monastery. Monastery buildings, homes, shops, cafés and other civilian infrastructure sustained damage in the surrounding area.
Zelenskyy disclosed that Russian forces had used three cluster-equipped ballistic missiles during the assault. Ukrainian authorities described weapons designed to explode in the air as they approach their targets, distributing explosive submunitions over an area approximately 400 metres in diameter.
After receiving reports from officials overseeing emergency operations across Ukraine, the president accused Moscow of deliberately choosing a weapon capable of inflicting extensive civilian casualties in a densely populated district.
“This was a deliberate choice of weapon and area of deployment,” Zelenskyy said.
He maintained that there were no military installations in the vicinity and that the attack had been intended to inflict maximum damage on civilians and their property.
Religious Buildings and Civilian Properties Damaged
Pecherskyi is one of Kyiv’s oldest districts, containing religious institutions and architectural monuments associated with centuries of Ukrainian history.
Among them is the Kyiv-Pechersk Lavra, established in the 11th century and subsequently developed into an important centre of Eastern Orthodox Christianity.
The complex includes historic churches, monasteries and an extensive system of underground caves. Together with Saint Sophia Cathedral and its related buildings, it forms part of a UNESCO World Heritage property that has appeared on the List of World Heritage in Danger since 2023.
Thursday’s explosion occurred in the area separating the Lavra from the Holy Presentation Monastery. Ukrainian authorities identified damage to buildings belonging to the latter, alongside neighbouring residential and commercial premises. Assessments of the destruction across the historic district were continuing.
This was not the first occasion in 2026 on which Russian weapons had damaged the area’s religious heritage.
On 15 June, a Russian drone struck the Kyiv-Pechersk Lavra complex, causing severe damage to the Dormition Cathedral. Its roof and structural elements suffered extensive destruction, prompting UNESCO to undertake emergency stabilisation measures.
The October strike has again exposed the vulnerability of the capital’s historic religious buildings, as well as the civilian neighbourhoods surrounding them.
The Use of Cluster Weapons in Urban Areas
The reported choice of ammunition has particular implications for the investigation into the attack.
Whereas a conventional missile warhead delivers its explosive force around a principal impact point, cluster munitions release numerous smaller explosive devices capable of striking separate locations across a broad area.
In an urban environment, such weapons can cause casualties and destruction well beyond an intended target. Unexploded submunitions may remain dangerous after the initial attack, posing further risks to residents and emergency workers.
The International Committee of the Red Cross has warned that deploying cluster munitions in populated areas creates a high likelihood of indiscriminate effects.
Under international humanitarian law, military operations must distinguish between civilian persons and objects and legitimate military targets. Indiscriminate attacks are prohibited.
The reported deployment of cluster warheads in central Kyiv therefore raises questions about whether those requirements were observed. Zelenskyy’s account of the three missiles had not, at the time of reporting, been independently established through publicly available forensic evidence.
Russian Barrage Follows Diplomatic Contact with Washington
The Pecherskyi explosion was one incident in a much larger attack on the Ukrainian capital.
According to Zelenskyy, Russia launched 21 ballistic missiles against Kyiv in three successive waves overnight. Ukrainian authorities reported at least two people killed and more than 30 wounded, with strikes damaging apartment buildings, commercial premises, transport infrastructure and energy facilities.
The bombardment took place shortly after Russian President Vladimir Putin met US presidential envoy Steve Witkoff in St Petersburg on Wednesday, 21 October.
During their discussions, Putin indicated that Russia was prepared in principle to resume negotiations with Ukraine and the United States, potentially in November. However, no confirmed timetable emerged.
Witkoff’s visit followed consultations in Norway between American, Ukrainian and European representatives over possible arrangements to end the war.
The renewed diplomatic activity has done little to resolve the underlying disagreements. As EU Today has previously examined, Moscow continues to advance territorial demands while the parties remain divided over Ukraine’s future security guarantees.
Meanwhile, Kyiv faces an immediate requirement for additional air-defence ammunition.
Zelenskyy has repeatedly appealed for more Patriot interceptor missiles capable of engaging ballistic targets. Difficulties surrounding American military assistance and intelligence cooperation have increased tensions between Washington and Kyiv at a time when Russia is intensifying attacks against Ukrainian cities.
The latest strike also presents Ukrainian investigators with the task of establishing whether the reported use of cluster munitions against a historic civilian district constituted an unlawful attack.
For Zelenskyy, the bombardment following Putin’s latest diplomatic discussions demonstrates that Moscow’s military conduct remains unchanged. He has argued that Russia’s actions provide no evidence of a genuine intention to bring the war to an end.
The International Criminal Court (ICC) has received the EU’s Sakharov Prize for Freedom of Thought.
Reacting to EU Parliament president Roberta Metsola’s announcement of the prize winner on Thursday (22 October), the Hague-based court said it is “thankful” for the recognition of the court and its officials.
“This award comes at a time when the court and its officials face unprecedented challenges, including sanctions aimed at disrupting the court’s judicial mandate,” ICC president judge Tomoko Akane told EUobserver in a statement.
The parliament’s recognition “underscores the importance of […] support to enable the Court to carry out its mandate independently and impartially, in the service of justice and the victims of the gravest crimes,” said the Japanese judge.
The court’s win comes after US president Donald Trump put his weight behind Israeli efforts to discredit the international judicial body by extending sanctions against it.
The ICC investigates and tries individuals charged with war and human-rights related crimes. When it issued an arrest warrant in 2024 for Israeli prime minister Benjamin Netanyahu for alleged war crimes, the US responded by sanctioning its judges.
EU Commission president Ursula von der Leyen welcomed the win, saying: “For victims of the world’s gravest crimes, justice means a voice. The ICC must be free to pursue its mission, independently, and without pressure or intimidation. Europe stands firmly behind president Tomoko Akane, the Court’s judges and officials, and their vital work for a world governed by rules.”
New sanctions against the court were announced by the Trump administration this month after the Nobel Peace Prize went to Navi Pillay, a former ICC judge who concluded in a UN report that Israel is committing genocide in Gaza.
Tomoka said: “While this prize recognises the work of the court in combating impunity and ensuring fair trials, it is also an important recognition of the role of international justice as a cornerstone of lasting peace. In a world marked by rising conflicts, there is no peace without justice and no security without law.”
Strasbourg stands for justice
French MEP Chloé Ridel initiated the ICC’s nomination for the Sakharov Prize on behalf of the Socialists & Democrats parliament group.
This article continues, but the full version is available only to EUobserver.com subscribers. Visit account.euobserver.com/membership
England and Wales judges to be able to keep inmates in cells for longer or stop visits if they refuse to face victims’ families in court
Offenders who refuse to face their victims’ families in court for sentencing could be stripped of privileges or kept in cells for weeks under government changes granting wider powers to judges in England and Wales.
The imposition of new prison sanctions, coming into effect next year, builds on existing laws that order offenders to attend sentencing or face a fine or be jailed for a further two years for contempt of court.
CCTV footage shows the police officer buying fast food, attending hospital, and visiting three separate Bunnings stores in the days after the alleged murder
Beau Lamarre-Condon ordered food from a McDonald’s drive-thru in a van allegedly used to dispose of two bodies, footage released by the court has shown.
Lamarre-Condon, 31, is accused of fatally shooting Sydney couple, Jesse Baird and Luke Davies, with his police service weapon in Baird’s Paddington home on 19 February 2024.
A Dallas-area juvenile arrested by the FBI for planning a terrorist attack on behalf of ISIS may also have been planning to assassinate Rep. Keith Self (R-TX), the co-founder and co-chair of the Sharia-Free America Caucus, according to information reviewed by Breitbart News.
Login
