WASHINGTON, DC - MARCH 07: U.S. Supreme Court Associate Justice Samuel Alito testifies about the court

U.S. Supreme Court Justice Samuel Alito.

The U.S. Supreme Court on Wednesday refused to grant emergency relief to Yeshiva University, an Othrodox Jewish college in New York City that refused to acknowledge an LGBTQ student group. The group sued using a theory that New York State’s anti-discrimination laws applied to the college; the college responded that it was a religious organization and that its First Amendment rights to adhere to its own religious doctrines trumped New York’s law.

The school lost during New York State court proceedings at all levels and requested a stay of an order to recognize the group; the Supreme Court declined to grant the stay as requested.

The 5-4 vote saw Associate Justice Brett Kavanaugh and Chief Justice John Roberts side with the Court’s liberals by denying emergency relief to the university.

Yeshiva University characterized the issues at play as follows:

1. Whether, under the First Amendment’s Religion Clauses, the New York City Human Rights Law can be applied to override Yeshiva University’s religious judgment about which student organizations to officially recognize on campus consistent with its Torah values.

2. Whether, under Employment Division v. Smith, the New York City Human Rights Law, which categorically exempts hundreds of organizations from its reach and allows individualized exceptions for “bona fide reasons of public policy,” is “neutral” and “generally applicable.”

3. Whether Employment Division v. Smith should be overruled.

The majority of justices responded by suggesting something akin to the legal doctrine of abstention (though that word does not appear in the court’s brief missive denying relief).  It is not uncommon for federal courts to abstain from hearing matters until state courts have a final say on them.

“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 majority wrote while denying the university’s request to step into the case at this point in time. “The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief.”

The Court then explained precisely what avenues of relief needed to exhausted before applying for relief at the U.S. Supreme Court:

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.

Abstention issues have at times been topics discussed during judicial confirmation hearings, as Law&Crime noted several years ago.

Justice Samuel Alito penned a dissent joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett.

Alito leapt at the opportunity to decide the issue immediately:

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.

Alito noted that the student group in question, the YU Pride Alliance, won at the trial court level after the university denied the group’s “request for formal recognition” but allowed students in the group to “socialize in gatherings [as] they see fit.”

Alito said the trial court win came after a judge “[p]erfunctorily” dismissed the school’s First Amendment concerns.  When appeals were lodged before the Appellate Division (New York’s intermediate appellate court) and the Court of Appeals (the state’s highest court) for interim relief, “those courts refused without providing a single word of explanation,” Alito wrote.

The strongly worded dissent may have been intended to caution the New York courts to proceed with the rationalization that they may be overturned if they do not grant relief to the university.

“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,” Alito continued.  “A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.”

“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,” Alito continued.  “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 [citations omitted] and the appellate process in the state courts could easily drag on for many months. And as for the interests of Alliance members and the general public, while a stay would deprive the Alliance of the statement it wishes to obtain, Alliance members would not be prevented from socializing and conducting activities that do not require official recognition.”

Addressing the abstention issue, Alito pointed to National Socialist Party of America v. Skokie (1977) as grounds to immediately jump into the case at bar. The case involved the right of Nazis to march in a Jewish community in Illinois, populated by numerous Holocaust survivors. The American Civil Liberties Union represented the Nazi group, while denouncing their beliefs, in support of the nation that even the most vile expressions of First Amendment activity deserve protection.

Alito also rubbished the majority’s suggestion that the university could seek “expedited” review from New York’s courts — a process the justice said “could take months” and would require the university to make “objectionable” statements about Torah during the interim delay.

“Of course, the Court of Appeals has already denied Yeshiva’s application for interim relief, but the majority interprets a case comment written by a court clerk employed by the Appellate Division to mean that the Court of Appeals may give Yeshiva a second bite at the apple notwithstanding its previous denial,” Alito wrote while firing back at the majority’s suggestions.  “That interpretation is dubious, yet the majority seizes upon it as dispositive. 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 full document is below:

[photo by Chip Somodevilla/Getty Images]

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