The shocking June decision by a city judge, widely seen as a threat to the First Amendment, coalesced a multi-denominational pushback in support of both the nation’s oldest Jewish college and religious liberty
A major religious-freedom legal case has drawn the expedited attention of the United States Supreme Court, which has come to the defense—albeit temporarily—of New York City-based Yeshiva University. This summer, the historic Jewish college—the nation’s oldest—was rocked when a local judge deemed the school was actually secular, and therefore obligated to formally recognize a campus LGBTQ organization, “Pride Alliance,” in defiance of the University’s Torah-based religious beliefs.
But last week, Judge Lynn Kotler’s June ruling in Yeshiva University v. YU Pride Alliance et al was temporarily stayed by United States Supreme Court Justice Sonia Sotomayor, the “circuit justice” for the federal Second District, which includes New York.
Sotomayor’s “brief order”—issued in response to an emergency request by Yeshiva—was handed down on September 9th. It stated, “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.”
Yeshiva University, represented by Becket Fund for Religious Liberty, a non-denominational public-interest legal nonprofit, filed an Emergency Application with the Justice on August 29th, charging that the denial of the school’s First Amendment rights would prove of “irreparable harm” to the institution:
There is thus no question that Yeshiva will suffer an immediate and ongoing irreparable injury if this Court does not stay the permanent injunction ordering it to violate its sincere religious beliefs. But the irreparable harm here is also very tangible: Yeshiva has been ordered to “immediately” violate its sincere religious beliefs or suffer serious legal consequences. . . . Absent this Court’s intervention, a New York state court’s injunction will override the conscientious religious decision of Yeshiva University, informed by its Roshei Yeshiva, regarding its religious mission and core religious obligation to form its students in Torah values. Yeshiva’s rabbis opine on issues of Jewish law for Jews around the world, yet this injunction would bar their ability to do so within their own yeshiva. Forced compliance would immediately and irrevocably change the religious atmosphere at Yeshiva, permanently alter how Yeshiva understands its religious identity, and deny Yeshiva the final authority to make religious decisions core to how it fosters religious community and relates to its undergraduate students. Once Yeshiva is forced by court order to comply, this violation of its First Amendment rights cannot be undone. No later reversal by this Court could change that.
Eric Baxter, The Becket Fund’s vice president and the lead counsel on the case, said at the time of the filing “When secular authorities try to tell Yeshiva University that it is not religious, you know something has gone terribly wrong. The First Amendment protects Yeshiva’s right to practice its faith. We are asking the Supreme Court to correct this obvious error.”
The formal Pride Alliance response attacked the stay request, calling it an “extraordinarily premature application” that “blows past all prerequisites to this Court’s jurisdiction and its orderly review of state court orders,” and restated the organization’s contention that “while Yeshiva University can espouse its Torah values without interference, it may not deny certain students access to the non-religious resources it offers the entire student community on the basis of sexual orientation.”
While the school enjoyed active support from numerous organizations, especially from Jewish and rabbinical entities which requested the Court’s permission to file “friend of the court” briefs on behalf of Yeshiva; the potential ramifications of Kotler’s ruling energized a broad ecumenical coalition—which included the Roman Catholic Archdiocese of New York, Biola University, Brigham Young University, Cedarville University, The Church of Latter-day Saints, The Ethics and Religious Liberty Commission, Houston Baptist University, Liberty University, the United States Conference of Catholic Bishops, and Wheaton College—which sought to add a collective legal voice to the deliberations. Their request, which advocated a stay and an overturning of the ruling, claimed “without this protection of religious autonomy . . . many other religious institutions may soon be forced to face the same impossible choice as Yeshiva University: abandon your faith or risk contempt or other legal penalties.”
In addition to seeking a formal stay of the New York ruling, Yeshiva’s counsels also requested that the Court “should grant certiorari and set the appeal for expedited hearing and argument.”
Baxter said the school “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, and commended Justice Sotomayor, saying “We are grateful” that she “stepped in to protect Yeshiva’s religious liberty in this case.”
Prior to Justice Sotomayor’s ruling, Legal scholar Ed Whelan, author of National Review’s “Bench Memos” blog, defended Yeshiva’s emergency request and warned of the broader, and imminent, legal ramifications to the First Amendment were it not granted:
Yeshiva’s reply brief persuasively explains why it is both procedurally proper for the Court to address its emergency application and substantively necessary to grant it. If the Court denies Yeshiva’s request, it’s a safe bet that the adversaries of religious liberty will pivot quickly from opposing that request to using the Court’s denial as ammunition for their charge that the Court won’t protect the religious liberty of religious minorities.