On Tuesday, Yeshiva University (YU) filed a motion for leave to appeal last month’s decision of the New York Appellate Division in its legal battle with the YU “Pride Alliance.”
As we reported in December, the appeals court affirmed the trial court’s order this past summer requiring YU to recognize an official “Pride Alliance” student club.
We’ve covered the ongoing conflict between YU and the student Pride Alliance here :
The motion is the latest step on YU’s path back to the United States Supreme Court following its September ruling denying the school’s request for emergency relief. The Court majority sent the university back to state court to finish out the appeals process, inviting it them to return if they “seek and receive neither expedited review nor interim relief from the New York courts.”
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….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.
If YU’s motion for leave is granted, its appeal will go to the New York Court of Appeals, the state’s highest court. And if YU loses there — or if leave is denied — it can return to the Supreme Court for a stay, as the Court ruled this past summer.
Once the school is back before the Supreme Court, the four dissenting justices predicted success: They are “likely to vote to grant certiorari,” and “Yeshiva would likely win if its case came before us.”
CLICK HERE FOR FULL VERSION OF THIS STORY