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Yeshiva University Must Recognize LGBTQ Student Group For Now, After SCOTUS Vacates Stay As Premature

Yeshiva University Must Recognize LGBTQ Student Group For Now, After SCOTUS Vacates Stay As Premature

Majority: “The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief.” Alito Dissent: “As the [Pride] Alliance has contended, this would force Yeshiva to make a ‘statement’ in support of an interpretation of Torah with which the University disagrees. The loss of First Amendment rights for even a short period constitutes irreparable harm….”

We covered last Friday how Justice Sotomayor Stays NY State Court Order Forcing Yeshiva University To Recognize “Pride Alliance” Club.

See that post for more background. The short version is that Yeshiva University, on religious grounds, refused to grant official recognition to a “Pride Alliance” group, although it didn’t prevent the group from operating. Justice Sotomayor issued a temporary stay, despite the Pride Alliance members asserting it was premature, and that the university needed to pursue state appeals court stays first.

I expected the full court to grant a stay, but alas, Roberts and Kavanaugh joined with the three liberals to vacate the stay on procedural grounds. The SCOTUS Order provides:

The application for stay pending appeal of a permanent injunction entered by the New York trial court, presented to JUSTICE SOTOMAYOR and by her referred to the Court, is denied without prejudice to applicants again seeking relief from this Court if, upon properly seeking expedited review and interim relief from the New York courts, applicants receive neither. The order heretofore entered by JUSTICE SOTOMAYOR is vacated.

Applicants Yeshiva University and its president seek emergency relief from a non-final order of the New York trial court requiring the University to treat an LGBTQ student group similarly to other student groups in its student club recognition process. The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court’s denial of a stay to the New York Court of Appeals, as the Appellate Division clerk’s office directed applicants to do on August 25. Applicants may also ask the Appellate Division to expedite consideration of that motion.

If applicants seek and receive neither expedited review nor interim relief from the New York courts, they may return to this Court.

Alito, joined by Thomas, Gorsuch, and Barret dissented:

Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely “no.” The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture. Yet that is exactly what New York has done in this case, and it is disappointing that a majority of this Court refuses to provide relief.

The court denied Yeshiva’s request for a stay pending appeal, and when the University applied to the Appellate Division and the Court of Appeals for interim relief, those courts refused without providing a single word of explanation. As a last resort, Yeshiva turned to this Court, but the majority—for no good reason—sends the University back to the state courts. The upshot is that Yeshiva is almost certain to be compelled for at least some period of time (and perhaps for a lengthy spell) to instruct its students in accordance with what it regards as an incorrect interpretation of Torah and Jewish law.

An applicant may obtain a stay pending appeal if it makes a strong showing (1) that it would likely prevail if review is granted, (2) that it will suffer irreparable harm during the time it takes for the completion of the appellate process, and (3) that neither the interests of other parties nor those of the public militate in favor of denial. Nken v. Holder, 556 U. S. 418, 434 (2009). Yeshiva easily satisfies all these requirements. At least four of us are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before us….

Unless a stay is granted, Yeshiva will be required to recognize the Alliance as an official student group and to grant it all the privileges extended to other such groups. As the Alliance has contended, this would force Yeshiva to make a “statement” in support of an interpretation of Torah with which the University disagrees. The loss of First Amendment rights for even a short period constitutes irreparable harm….

The majority does not address our well-established standard for granting a stay but instead suggests that we cannot grant a stay because the New York courts have not entered a final order. But the state courts’ denial of interim relief constitutes a final order under National Socialist Party of America v. Skokie, 432 U. S. 43, 44 (1977) (per curiam)….

I doubt that Yeshiva’s return to state court will be fruitful, and I see no reason why we should not grant a stay at this time. It is our duty to stand up for the Constitution even when doing so is controversial.

The Becket Fund for Religious Liberty, which represents Yeshiva U., says they will be back in SCOTUS:

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Comments

On the positive the chances they won’t exhaust their state level avenues of relief to be back in the SC is about zero and this ruling is just procedural.

Why is this even a court issue?

    The Gentle Grizzly in reply to geronl. | September 14, 2022 at 8:36 pm

    Title Something or another of some “civil rights act”.

      Nope. It’s the NY Human Rights Law. Which has a explicit exemption for religious institutions, but the trial court found that YU isn’t one. Which the evidence supports.

        George_Kaplan in reply to Milhouse. | September 14, 2022 at 10:02 pm

        From memory the court found that anything not fully and exclusively religion focused e.g. a religion or denomination based education facility, is not a religious institution.

        That a Jewish university would be a religious institution seems a no brainer, but apparently the NY court couldn’t work even that out.

          That a Jewish university would be a religious institution seems a no brainer,

          That’s completely wrong, because “Jewish” is not a religion. Most Jews are not religious, or follow religions other than Judaism (especially if you include “Reform Judaism” as a religion other than Judaism, which you should, since it has less in common with Judaism than do many forms of Christianity).

          Many Jewish institutions are explicitly non-religious or even anti-religious; they are no less Jewish for that. Brandeis is a Jewish university, but it is not and has never claimed to be religious. And in 1967 YU decided to go that way, to become a university that was Jewish in character but not religious. Now it is reaping the results of that decision. It’s Elul now; let it reverse itself and return to its origin, and be forgiven.

        Milhouse, when you refer to “the evidence” supporting the trial courts conclusion that issue is not a Jewish Institution or a religious institution, I presume you are referring to the charter documents that characterize the university as an educational institution. Anyone who has spent as much as 1 day on the campuses of the undergraduate schools would realize that in fact, the undergraduate schools are a religious Jewish institution, based on student population, significant faculty population, attitudes and the fact that many hours of religious study are a requirement. There simply is no getting around that in fact. Relying on the charter and documents alone is like saying that the Soviet Union was a model of enlightened social democracy based only on what one read in the Soviet constitution. I am not sure how to resolve a clash directly between a civil rights law and the First Amendment, but when the New York Human Rights Law has an explicit exemption for religious institutions, I don’t see any way how the undergraduate schools of Yeshiva University are not entitled to claim that.

          Milhouse in reply to RRRR. | September 15, 2022 at 10:34 am

          A corporation is what its charter says it is. YU is not a religious institution. None of the factors you point to (and the university points to) make it a religious institution; they merely make it an institution with a large religious population.

          You cannot escape the fact that in 1967 YU made a deliberate decision to separate itself from RIETS and renounce its religious character. That was the equivalent of “writing on a bull’s horn that it has no share in the G-d of Israel”. It did so for the sake of money, and over the last 55 years it has repeatedly filed documents declaring that it is secular and not religious.

          Judge Kotler reasonably ruled that it can’t do that and at the same time turn around and claim to be religious when it’s convenient. If it wants the benefits of being a religious institution it must amend its charter to say so, and it must cease making any declarations that it is not so.

        M Poppins in reply to Milhouse. | September 15, 2022 at 12:38 pm

        Ridiculous – of course it’s a religious institution

      Barry Goldwater was correct, wasn’t he?

The transgender spectrum (e.g. homosexual), and, presumably, other groups with disparate and divergent identities. Perhaps a pride parade to celebrate lions, lionesses, and their unPlanned cubs playing in gay detachment.

Suspend operations, cancel classes and shut the campus down until SCotUS can get lined up with a fresh pivot man.

It is anathema for such a place to tolerate such degradation.

    Milhouse in reply to NotKennedy. | September 14, 2022 at 9:10 pm

    No, it isn’t. The YU grad schools have been tolerating it for years without suffering any damage. And the institution has been insisting for over 50 years that it’s secular; it can’t have it both ways. Let it reverse that move and once again declare itself an institution dedicated to G-d and the Torah, and it won’t be in this pickle.

      Massinsanity in reply to Milhouse. | September 15, 2022 at 8:20 am

      I don’t know much about Yeshiva except that they have had a really good D3 men’s basketball team the past few years. Why has this clearly religious school “been insisting for over 50 years that it’s secular?”

      Just looking for more background here as this case seemed like a slam dunk for me until reading your posts on the topic.

        The usual. For money. There were government grants that weren’t available to religious schools, so YU made a decision to dump its religious charter and become an officially secular institution. It thought this would not affect its true nature, but inevitably it did, and now the law has taken note of that.

Roberts… *spit*

Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely “no.”

Of course it’s “no”. But that is not the question being posed here.

Unless a stay is granted, Yeshiva will be required to recognize the Alliance as an official student group and to grant it all the privileges extended to other such groups. As the Alliance has contended, this would force Yeshiva to make a “statement” in support of an interpretation of Torah with which the University disagrees.

I don’t know what the plaintiffs have contended, but on the face of it that is simply not true. Recognizing the student group would not require YU to make any statement at all. It would simply be treating a student group the same way it does all student groups. That’s not a statement of any kind, and it’s certainly not a statement of support for the group. Nothing prevents YU from making an explicit statement that it doesn’t support the group, just as it has done for years regarding the gay groups in its graduate schools. In fact it’s already made such a statement just by fighting this.

YU is certainly not being required to teach anything contrary to its opinions. Recognizing a group does not affect its curriculum at all. It’s free to state its opinions loudly, and to teach them in all classes. As a private employer it can order all professors to begin each class with a statement that “This university believes homosexual activity is a crime against God”.

And the key point is that YU is not a religious institution. If it were one this case wouldn’t begin, because it would have qualified for an exemption that is explicitly in the relevant law. The lower court decision was based entirely on the fact that YU has for over 50 years insisted that it is a secular institution and has no portion in the G-d of Israel. All it has to do is change that. It can amend its charter and bylaws to proclaim itself once more a religious institution, reunite with the rabbinical school it spun off as a separate entity because it wanted to be secular, and it will immediately qualify for the exemption.

    jakebizlaw in reply to Milhouse. | September 14, 2022 at 9:33 pm

    Millhouse – why cater to the crabbed interpretations of the first amendment that limit free exercise protections to churches and “establishments of religion” rather than the exercise of belief? (Particularly because IIRC, you are frum).

      Your comment reminds me that there are at least two groups opposing YU here. First, and obviously, progressives who want to eviscerate the First Amendment. Second, more “right-wing” elements of the Orthodox Jewish community who oppose the more modern attitudes and interpretations at YU and seek to embarrass YU within the Orthodox community, although the right-wing Jewish establishment such as Agudah and many non-Jewish organizations are on YU’s side on this because they realize that the dispute is about a lot more than one club at YU, including but not limited to whether the NY education department can tell Hasidic schools what they must teach.

      Milhouse in reply to jakebizlaw. | September 15, 2022 at 11:05 am

      Millhouse – why cater to the crabbed interpretations of the first amendment that limit free exercise protections to churches and “establishments of religion” rather than the exercise of belief?

      First of all, at the level of the original court that made this decision, because the exemption in the NY law is limited to religious institutions.

      Second, for a corporation to exercise its belief it must first have a belief. That was the issue in Hobby Lobby. The government claimed that corporations, by their very nature, can’t have religious beliefs, and therefore can’t claim free exercise rights. Hobby Lobby is a business corporation just like IBM or Exxon, it claimed, and it’s absurd to speak of it has having a religion. The Supreme Court held that in the case of small, tightly-held corporations, where all the shareholders share a religion and founded the company with the intention of running it according to their religion, and have consistently done so since then, it is not absurd to speak of it as having a religion, and therefore the right to exercise it. But suppose Hobby Lobby had included in its charter an explicit denial of any religious purpose. Would it have prevailed in its case anyway? I doubt it.

        jakebizlaw in reply to Milhouse. | September 15, 2022 at 11:49 am

        The Supreme Court’s interpretation of the First Amendment prevails over a state statute; Hobby Lobby seems to support the religious rights of YU regardless of its corporate status. Is the only course of action you propose that YU revert to its previous religious identification at the risk of losing government monies?

          Milhouse in reply to jakebizlaw. | September 15, 2022 at 3:24 pm

          I just explained why Hobby Lobby doesn’t apply, though it is the closest thing YU has to an argument. If Hobby Lobby had included in its charter an express denial of any religious purpose, would it still have prevailed? I doubt it.

          And yes, I think to benefit from a religious character YU must officially and permanently adopt one, and renounce any benefit it may have from having denied one for all these years. It can’t have it both ways. And it should re-merge with RIETS, giving its authorities on Jewish law veto authority over any board decision that they believe violates that law.

          Ideally I would like to see it do that and still recognize the gay club, because I see nothing in halacha that would prevent such recognition, provided the club adheres strictly to halacha, including the laws of modesty. If it does not then that will be its fault, not the school’s. But that is a matter for the RIETS authorities to decide, not for me; if they say it’s forbidden then I believe the institution must comply. That would include the existing gay clubs at the grad schools; if the rabbis say they may not continue then they should be shut down.

    George_Kaplan in reply to Milhouse. | September 14, 2022 at 10:12 pm

    Millhouse, certain secular universities refuse to tolerate conservative groups, why should Yeshiva be forced to do what secular universities aren’t? Yeshiva is clearly a religious institution. Yes they offer secular subjects, and yes they accept non Orthodox Jewish students, but the motto of the school is ‘Torah and secular knowledge’ and their website makes clear they are not just another secular institution.

      Because the NY Human Rights Law specifically bans discrimination on the grounds of sexual orientation, except by religious institutions.

      It’s not a matter of what subjects it offers, or whom it admits as students. Before 1967 YU taught many secular subjects; that was the whole point of its existence in the first place! That’s why it’s called, not “Yeshivah”, but “Yeshivah University“. But it was avowedly a religious institution, whose official purpose was to promote the learning and practice of the Jewish religion. Just as in Catholic universities, secular subjects were taught for a religious purpose. And just like Catholic universities, admission was open to all who desired it, even if they didn’t subscribe to the school’s religion. Many Jewish schools will admit non-Jewish students, if the parents understand what they’re doing and insist that they really want it.

      So it’s not the curriculum or the admission policy that makes YU secular, it’s its charter and its declarations over the years. It can change all that, but so far it has refused to do so.

    In theory, it is true that YU can go out of its way to make sure that at every turn everybody realizes that it actively opposes the Pride Alliance and would not have allowed it but for the fact that the courts have forced it to, but in practice, YU cannot do this for two reasons. First, the opposition to recognition of a Pride Alliance as an official club does not extend to singling out and embarrassing individuals on a day to day basis. Second, if a premise of the court decision is that the Pride Alliance has to be treated like every other club, the members would be back in court in 5 minutes alleging massive violations of the Human Rights Law, creating a hostile environment etc.

Maybe the conservative groups should be going to court demanding to accepted and have their agenda affirmed by the colleges.
And hochul is a straight up fascist. Like wHitler they’re both petty, vindictive *****. And wHitler should be facing criminal charges for her murder of all those elderly people when she put covid positive people into the rest homes.

That’s more like the Robert’s court we’ve come to know and not love.

The good news is two fold. First this was a procedural decision by the majority telling the Univ to exhaust State CT remedies. Second four Dissenting members, in essence, said ‘waiting is stupid because it allows the process to be gamed so let’s just settle it now’.

Kavanaugh and probably Roberts will move to join the other four Dissenting Justices when this inevitably comes back before the CT. IMO, Kavanaugh is eventually going to lose patience with gamesmanship and will, in time, be more willing to take the position offered by the dissent.

Not asking legally, but logically – unless there is actual harm occurring to people, how can a stay be premature? Seems weird from that angle.

    Milhouse in reply to GWB. | September 15, 2022 at 3:27 pm

    Because the federal rules say that you can’t go running to the federal courts to interfere in state proceedings until you’ve exhausted all avenues on the state level. That includes stays.

A good argument can be made that the charter is irrelevant and that the facts on the ground are that YU has serious demands as to adherence to Jewish law and mandatory Jewish studies that css as not be reconciled with the demands of the students Focusing on the charter is elevating form over substance I would note that Agudah filed an amicus brief on the side of YU and that the refusal to grant a stay by the woke NY courts left YU with no other avenue venue but to seek an interim stay which although vacated leaves YU with the options of amending it’s charters or defunding all clubs and seeking certiorari after the NY State courts have affirmed the order of the judge whjj on ruled against YU

Here is some background on the history of this controversy.

Here is an article about Rabbi Soloveitchik’s public disapproval of the decision.

Here is an article from 1970 discussing the split as it was happening.

    Steven Brizel in reply to Milhouse. | September 16, 2022 at 4:22 pm

    YU has just defunded all clubs indefinitely pending the outcome of the appeal on the merits I know all about the issues about the secularization of the governance of YU but the facts on the ground were completely ignored by a judge who is a partisan on the issue

This judge clearly elevated form over substance in her parsing of the charter and ignoring the facts on the ground