WASHINGTON, DC – Yeshiva University faces the dilemma of temporarily embracing LGBT policies that violate the school’s Jewish faith or risking contempt of court, after the U.S. Supreme Court voted 5-4 to lift a temporary stay that protected the school while administrators defend the religious institution against a discrimination lawsuit.
“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?” Justice Samuel Alito asked rhetorically in his dissent from the court’s order. “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.”
The New York City Human Rights Law (NYCHRL) created new classes of legally protected populations, codifying a SOGI (sexual orientation and gender identity) policy that requires businesses and organizations to regard LGBT individuals as protected on the same level as race and skin color.
Yeshiva University is the flagship Jewish university in the United States. It seeks to be faithful to Orthodox Jewish teachings from the Torah (i.e., the first five books of the Bible in the Old Testament) and the Talmud, as interpreted by rabbis. Orthodox Judaism teaches that marriage is between only a man and woman and promotes traditional values on sexuality and gender roles.
YU Pride Alliance is an LGBT group that seeks to require Yeshiva to provide official recognition to their group. The university declined to do so because it would violate the school’s religious beliefs.
YU Pride Alliance sued in New York Supreme Court for New York County, which is a misleading name because in New York’s judicial system, the supreme court is actually the trial court in each county, which is a low rung on the judicial ladder.
Despite the fact that NYCHRL includes an exemption for “religious organizations,” the county court issued a stunning ruling that Yeshiva is not religious enough to qualify for that exemption, noting secular majors for which the university will confer degrees. The court then ordered this Jewish school to recognize YU Pride Alliance, notwithstanding the fact that such an official recognition would violate Yeshiva’s religious faith.
Yeshiva appealed to the next higher court, the New York Supreme Court Appellate Division, for a stay (meaning a pause) of the county court’s order while the school is going through the appeals process, but the appellate court declined to issue a stay. Then the school asked the Empire State’s highest court, the New York Court of Appeals, to grant a stay, but the state high school refused to review the matter.
So Yeshiva’s lawyers at Becket Law asked the Supreme Court of the United States to grant a stay. Justice Sonia Sotomayor is the circuit justice supervising the U.S. Court of Appeals for the Second Circuit, a region which includes New York. Sotomayor granted a short multi-day stay while the justices reviewed the filings from both sides and the court record.
On Wednesday, the Supreme Court vacated (i.e., lifted) its stay by a 5-4 vote, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the three liberal justices. Those five justices wrote that Yeshiva should seek expedited review in the New York appellate courts, and that if the lower courts continue to refuse to grant relief, that the school can apply for another emergency stay.
Alito dissented, joined by fellow conservative Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, writing that what is happening to Yeshiva violates the Constitution.
“As a last resort, Yeshiva turned to this Court, but the majority—for no good reason—sends the University back to the state courts,” said Alito. “The upshot is that Yeshiva is almost certain to be compelled for at least some period of time (and perhaps for a lengthy spell) to instruct its students in accordance with what it regards as an incorrect interpretation of Torah and Jewish law.”
Alito added that enough justices would vote to grant review – called a writ of certiorari – to take up this case if Yeshiva continues to lose in the lower courts, “and Yeshiva would likely win if its case came before us.”
The four dissenting justices called it a “shocking development” that any branch of government would impose “its own mandatory interpretation of scripture” on any religious group or school.
The case application is Yeshiva University v. YU Pride Alliance, No. 22A184 in the Supreme Court of the United States.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department. Author’s disclosure: The author’s law firm filed an amicus brief supporting Yeshiva University’s application to the Supreme Court.
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