[This piece has been published in Restoring America to highlight how a recent decision could present the Supreme Court an opportunity to uphold the right to religious freedom.]
Another conflict is brewing between the constitutional right to freely exercise one’s religion and the civil right to be free from discrimination.
Like several cases of this kind in recent years, the Supreme Court is likely – at least we hope – to decide this one in favor in the end.
Yeshiva University, located in New York City, comprises the largest Jewish undergraduate institution in America. The yeshiva advocates living in accordance with “Torah values”, including opposition to same-sex sexual relations.
Yeshiva rejected the request of the YU Pride Alliance, a group opposed and hoping to change Yeshiva’s teaching on this issue, for recognition as an official student group. The alliance filed a lawsuit in state court, claiming Yeshiva’s decision violated New York City human rights law prohibiting discrimination based on sexual orientation and gender. gender identity.
There is conflict. Cases like this, especially when they begin in state court, must go through a particular process before arriving at a final resolution on the merits of the legal issue.
Yeshiva has asked that the trial court’s order requiring Yeshiva to grant full recognition to the Pride Alliance be stayed while the case is on appeal. Qualifying for such a “stay pending appeal” required Yeshiva to argue that it would likely win on the merits and suffer “irreparable harm” in the interim if the stay was not granted.
Unsurprisingly, the trial court refused to stay its own decision, and both levels of New York appeals courts agreed without so much as a word of explanation.
Yeshiva then took this “stay pending appeal” request to the US Supreme Court, which has its own process. Judge Sonia Sotomayor, who handles litigation claims within the 2nd Circuit, which includes New York, granted a stay on Sept. 9 and returned the case to the full Supreme Court for consideration of the way forward.
Yesterday, in an unsigned order, the court voted 5-4 to overturn Sotomayor’s original decision. Chief Justice John Roberts and Justice Brett Kavanaugh voted with all three liberal justices, which is certainly disappointing.
While a cursory glance makes this procedural decision seem like a blow to religious freedom, it is not. Here’s why. First, it was not a substantive decision as to whether the Yeshiva’s right to practice its religion should give way to the covenant’s right to be free from discrimination.
It was only a question of deciding whether, on the way to such a decision on the merits, the decision of the court of first instance should be provisionally suspended.
Second, the majority denied a stay because Yeshiva had not pursued all of its options in state court, not because Yeshiva would likely fail on the merits or suffer irreparable harm.
In fact, the majority has repeatedly said that if the Yeshiva strikes out completely in state court, it “may come back to that court” and renew its stay request. Moreover, Sotomayor – author of a few scathing dissents in cases where religious freedom was victorious – was within his authority to unilaterally deny Yeshiva’s emergency request, but instead chose to allow the full bench to speak. on what to do next.
The four dissenters — Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett — thought there was “no good reason” to jump Yeshiva through those hoops of state court. They would, Alito wrote for the group, have the four votes needed to accept a case for consideration, and “Yeshiva would likely win if his case came before us.”
They therefore considered it more important to avoid the irreparable harm Yeshiva would suffer by skipping an unnecessary return to state court.
Although this may seem to exalt form rather than substance, process is important. The alliance has asked state courts to decide whether Yeshiva violated a local human rights law. It is entirely reasonable to argue that these courts should complete their work before the case returns to the federal courts.
If the Yeshiva returns, the Supreme Court is likely to grant a stay, and dissenters have taken the opportunity to begin litigating this case, perhaps hoping that the lower courts in the state that will now consider this case will take a clue.
They argued that demanding official recognition from a group of students that advocates “an interpretation of Torah with which the University disagrees” would in effect force the Yeshiva to contradict itself on a matter of religious teaching.
If the First Amendment means anything, Alito wrote, “it prohibits a state from enforcing its own preferred interpretation of Holy Scripture.” It would be “a shocking development that calls for scrutiny”.
Additionally, “a broad class of secular groups” are exempt from New York City human rights law, being treated “more favorably than religious schools like the Yeshiva.”
The Supreme Court has repeatedly said that the First Amendment protects religious institutions’ decisions about who can pursue their religious mission and “the ability of religious schools to educate in accordance with their faith.” Even just last term, in a case similarly dealing with the intersection of religion, education, and government, the court clarified that the Constitution does not authorize — much less require — that the government discriminates against religion.
The conflict involving Yeshiva fits perfectly into this line of cases, and its end result will likely strengthen religious freedom, even if it takes a little longer to get there.
This article originally appeared in the Daily Signal and is reproduced by kind permission of the Heritage Foundation.