U.S. Supreme Court Justice Sonia Sotomayor’s 11th-hour order on behalf of the Supreme Court, allowing Yeshiva University to disregard New York Supreme Court Judge Lynn Kotler’s ruling that it had to immediately recognize an LGBTQ student club, was certainly welcome. But it was alarming that it came after Judge Kotler and two New York state appeal courts refused to stay the order pending YU’s appeal of the original ruling.
After all, there is no question that granting recognition would be contrary to Yeshiva’s religious principles. It is one of the most venerable Orthodox Jewish institutions of higher learning, and it has strong constitutional religious freedom and free speech arguments on its behalf. Moreover, given the current make-up of the Supreme Court and its recent decisions in religious freedom cases, chances are YU would ultimately prevail – since Justice Amy Comey Barrett joined the court in 2020, religious petitioners almost always prevail.
So, the issue broke down to a question as to whether interim irreparable harm to YU would outweigh the minimal impact any delay would have on the LGBT group, which had no demonstrable need for immediate recognition.
The case will now go back to New York’s Appellate Division in Manhattan for the appellate proceedings and then likely to the New York State Court of Appeals before a possible return to the U.S. Supreme Court.
The National Jewish Commission on Law and Public Affairs, or COPLA, which filed a brief on behalf of national Orthodox organizations in support of YU’s emergency application to Justice Sotomayor, will now reportedly be filing a brief in the appellate division.
Justice Sotomayor’s stay was critical and the case now goes back to the state courts; but the U.S. Supreme Court could choose independently to add the case to its own docket, which already contains similar cases to be considered in the upcoming term. In the long run, this might be the better route, because the YU case is but the latest to test the right of religious institutions to refuse to compromise their beliefs, free from state interference.
