Justice Sotomayor Stays NY State Court Order Forcing Yeshiva University To Recognize “Pride Alliance” Club

Justice Sotomayor Stays NY State Court Order Forcing Yeshiva University To Recognize “Pride Alliance” Club

Yeshiva University is an institution clearly identified with religious Judaism, although it does not exclude others:

For more than 135 years, Yeshiva University has been a place where students can immerse themselves in Jewish culture to study the Torah, learn Hebrew, and receive an education steeped in the Modern Orthodox tradition. The school gets its name from the word “yeshiva,” referring to a Jewish religious school dedicated to study of the Talmud. True to its name, all undergraduate men spend two to six hours each day intensely studying Torah. Undergraduate women take at least two Jewish studies courses every semester. Shabbat (the Jewish sabbath) is observed campus wide, as are the laws of kashrut (kosher food).  

As at most yeshivas and Jewish seminaries, there are sex-segregated classes, dorms, and even campuses. Students are strongly encouraged to dress and conduct themselves consistent with Torah values. Yeshiva’s strong religious environment pervades its campuses, accommodating and supporting the school’s reason for existing and the faith of its students.  

A student group calling itself “Pride Alliance” sought offical recognition and was turned down based on the institution’s Orthodox Jewish character. The students sued, and won in a New York State trial court, which ordered the university to install the group.

NY State appellate courts refused to issue a stay.

Represented by The Becket Fund for Religious Liberty, Yeshiva U. submitted an Emergency Stay Application to the U.S. Supreme Court (docket page), where Justice Sonia Sotomayor covers the Second Circuit (including New York):

Applicants Yeshiva University and its president, Rabbi Ari Berman, seek an emergency stay pending appeal of a permanent injunction ordering them to “immediately” approve an official Yeshiva “Pride Alliance” student club. As a deeply religious Jewish university, Yeshiva cannot comply with that order because doing so would violate its sincere religious beliefs about how to form its undergraduate students in Torah values. The club application process opened on August 26 and runs through September 12. To avoid the irreparable harm that would come to Yeshiva, its students, and its community from the government-enforced establishment of a Yeshiva Pride Alliance club, Applicants respectfully request an immediate stay pending appeal.

This extraordinary situation arises from what all parties—and the trial court—acknowledge was a religious decision not to approve a Yeshiva Pride Alliance club. All parties agree that Yeshiva made this decision in consultation with its Roshei Yeshiva, or senior rabbis. And all parties agree that Yeshiva has a deeply religious character as a Jewish university. In fact, Plaintiffs admit that they want to force the creation of a Yeshiva Pride Alliance precisely to alter Yeshiva’s religious environment—for example, by distributing school-sponsored “Pride Pesach” packages for Passover—and to upend Yeshiva’s understanding of Torah, with which Plaintiffs disagree.

The trial court held that the decision whether to have an official Pride Alliance organization on campus can be made by the government rather than Yeshiva itself in consultation with its rabbis. Relying on the New York City Human Rights Law (NYCHRL), the court concluded that the government can force Yeshiva to recognize an official Pride Alliance club because Yeshiva purportedly offers too many secular degrees to qualify for the law’s express exemptions for religious organizations. Worse, the court ignored Yeshiva’s First Amendment church autonomy arguments entirely and cursorily rejected its Free Exercise arguments.1 In essence, the court found that Yeshiva is not a religious entity and has no right to control how its religious beliefs and values are interpreted or applied on its campuses….

Yet because of the permanent injunction below, Yeshiva and its President are now being ordered to violate their religious beliefs or face contempt. That ruling is an unprecedented intrusion into Yeshiva’s religious beliefs and the religious formation of its students in the Jewish faith. It is also an indisputably clear violation of Yeshiva’s First Amendment rights….

The full force of the permanent injunction is thus pressing on Yeshiva now. Yeshiva’s claim that the First Amendment protects its right to uphold its religious values pending appeal has been finally rejected by the state courts. Outside of this Court, there is now no further avenue for interim relief. If Yeshiva is forced to comply, the infringement of its religious liberty, and injury to its reputation as a bastion of Torah values and flagship Jewish university, will be irreparable. A stay to maintain the status quo is thus essential in aid of the Court’s jurisdiction.

The Pride Alliance argued against a stay:

No “emergency” exists that justifies the University’s grossly irregular procedural maneuvers around the normal state court appellate process. The state trial court’s decision that Yeshiva University is a public accommodation under the Human Rights Law simply requires the University, a large educational institution that educates 5,000 students of all religious faiths every year, to grant the YU Pride Alliance access to the same facilities and benefits as its 87 other recognized student groups. This ruling does not touch the University’s well-established right to express to all students its sincerely held beliefs about Torah values and sexual orientation. Pending appeal, the University and its counsel can continue to explain, as they have this week in press releases, online “FAQs” about this case, and television interviews, that it is required to provide the student club with access to a classroom, bulletin board, or club fair booth as one step in a legal process, not because it endorses the club’s mission of support and acceptance for LGBTQ students.

Earlier today, without apparently referring the application to the full court, Justice Sotomayor granted the stay:

Upon consideration of the application of counsel for the applicants and the response and reply field thereto, it is ordered that the injunction of the New York trial court, case No. 154010/2021, is hereby stayed pending further order of Justice Sotomayor or of the Court.

Becket sent the following statement:

“Yeshiva shouldn’t have been forced to go all the way to the Supreme Court to receive such a commonsense ruling in favor of its First Amendment rights.” Eric Baxter, Vice President and Senior Counsel at Becket, said, “We are grateful that Justice Sotomayor stepped in to protect Yeshiva’s religious liberty in this case.”

It’s interesting that Justice Sotomayor didn’t refer it to the full court. That could still happen as to the stay, but given prior religious liberty cases, it seems likely that a majority would grant a stay as well.

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