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The Supreme Court has responded to a stay request in Yeshiva University v. YU Pride Alliance. The cases revolves around New York's Yeshiva University, a long-standing and very Orthodox Jewish university, which is facing civil suit under New York City's Human Rights Act, for refusing to recognize an internal LGBT alliance. After a summary judgement stage, the judge found in favor of Yu Pride Alliance, and ordered an injunction against Yeshiva to immediately recognize the Alliance and provide all support given to other clubs. Yeshiva appealed to the case to New York's confusingly-named Appellate Division, and requested a stay during appeal. This was denied, without explanation on August 23rd. Yeshiva then requested leave to appeal that denial of stay from both the Appellate Division and the even-more-confusing separate Court of Appeals; this was denied, again without explanation, on August 26th. Yeshiva filed an emergency appeal to SCOTUS on August 29th, arguing that with its time for club applications running from August 26th to September 12th, the likely timeline for state appeals -- October or November before trial, likely past the end of the school year for a decision -- make for irreparable harm.
While Justice Sotomayor issued a short administrative stay from the 9th to the 13th, SCOTUS ultimately punted, holding that Yeshiva could request an expedited appeal from the state, or try again after completion of all state-level appeals, if rejected. Of course, by that point, Yeshiva's then-established-and-recognized Pride Alliance will have a lot of extra weight on arguments regarding future stays. As YU Pride Alliance explicitly declares it purpose is to change hearts and minds, it is difficult to see that period not reflecting any compelled speech.
There are a number of more subtle issues.
Some of these are just obnoxious. There's a rather impressive silence from those who worried about the Texas Bounty Hunters bringing lawsuits with statutes putting every thumb possible on the scales, obviously. SlightlyLessHairyApe has suggested in the past (in supposedly less favorable circumstances!) that "Martinez is the decision in most danger of backsliding"; this refusal isn't any stronger evidence CLS v. Martinez is here to stay than the Texas Bounty Hunters legal cases evidence that Roe wasn't... but faint damns. The state judge ordering the stay is or was a member of the Lesbian and Gay Law Association for Greater New York, which is not the sort of thing that requires or even counsels recusal, anymore than a judge being an observant Jew might, but at least the sort of thing that would raise elevated interest in making the impartial read of the law as clear as possible.
((There's also some boring debates about the definition of 'irony'.))
One more usefully interesting matter reflects the text of the court's decision. The state law actually does contain an exemption for some religious educational organizations, specifically those "religious corporations incorporated under the education law"; Yeshiva is, however, incorporated as an "educational" corporation under the education law, likely in no small part so it can issue secular degrees:
Those of you following other conversations here this week might have noticed that a city -- conveniently the same city! -- is in the middle of investigating whether Hasidic grade schools are providing sufficient education. Which wouldn't necessarily be covered by the current text of Administrative Code 8-102, which only mandates that organizations with over 400 members and taking in money be considered not-private unless proven otherwise. But the remaining exceptions are not just statutory but affected by a morass of regulatory and administrative decisions. And the statute has changed rapidly in the past: while Yeshiva changed its incorporation to the education law in 1967, an exception present at the time for "colleges and universities" was stripped by a 1991 City Council decision
A month ago I'd have called Hasidic fears of the corruptive nature of secular education paranoid. I still don't think NYC would, any time soon. I'm a good deal more limited in what foundation I can argue that. Hope that won't have negative ramifications!
Another is a continuing willingness by the courts to ignore what are, charitably, misleading filings. In this case, the YU Pride Alliance Opposition filing says, among other claims, that :
The paragraph that is pulled from reads :
That is, Yeshiva conceded that it was subject to a specific different prong of the Human Rights Law, which Yeshiva did not claim to have religious objections to despite a (admittedly-limited) religious exemption where:
This isn't quite as bad as a certain state (New York again!) excising important words from referenced statutes, and then doing it again, or the CDC's famous "absent an
unexpected change". But where lawyers are obligated to make the best arguments for their clients, they are also obligated to be fully honest in court filings, not merely in not-lying, but in representing the whole truth. I doubt this section had serious impact (or, frankly, that all of the justices even read it), but an inability to respond to or recognize these sort of tendentious filings do not encourage faith in even-handed access to the courts.There is a phrase -- sometimes attributed, coincidentally, to Rabbis, elsewhere to Gladstone or Francis Bacon -- that 'justice delayed is justice denied'. It's possible that this decision is overturned at the state level, for the sort of reasons I and Alito both were too pessimistic in the aftermath of Fulton. Of course, if not resolved at the state level, SCOTUS review of the stay is unlikely before the end of the school semester; of the case, likely into 2026 or 2027. It's not hard to come up with examples of the costs of punting at such length. This case can, in many ways, be seen as the aftermath of Fulton's punt.
It's not quite up there with Young v. Hawaii's decade-long wait. I doubt it will be. I expect a long-standing yeshiva will be stubborn at the end of a case, where other religious orgs struggle to revert changes. And probably a coincidence that this falls at the same time the federal gay marriage bill is struggling in the Senate, over conflicts related to
Separately (both for character limit reasons and because it's another less interesting matter), I'm going to point to the posts here and here.
Yes, Demkovich was overturned and dismissed, albeit while the dissent points out the 9th Circuit found otherwise, and the grounds for that dismissal do not apply to broader speech outside of religious organizations. Yes, more broadly, these are not my positions: I have actually joined Pride organizations, where no Orthodox Jewish group would be interested in my views on the Talmud. Yes, this is compelled speech rather than prohibited speech, although the law does cover both. Yes, this is not a Rhode Island RFRA or an HR.
But I'm skeptical a perspective on a legal environment that excludes this sort of problem is a relevant one, when it comes to the health of the republic.
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