The Left has falsely accused the Supreme Court of selectively promoting the religious-liberty interests of Christian conservatives. But it’s YU Pride Alliance’s opposition to Yeshiva’s emergency application that invites the Court to denigrate Yeshiva’s Orthodox Jewish beliefs.
YU Pride Alliance contends that Yeshiva would not face irreparable harm in being forced to recognize YU Pride Alliance as an undergraduate club because—get this!—various Christian (including Catholic) universities that it lists “all have LGBTQ clubs on their campuses.” How bizarre to think that the voluntary choices of these Christian universities would define or limit Yeshiva’s religious liberty.
YU Pride Alliance also contends that Yeshiva would not be irreparably harmed because it can publicly explain that its “recognition of the YU Pride Alliance will be due to legal mandate, not due to [Yeshiva’s] endorsement of the club.” That is a standard that has never been applied to other religious entities. By that unprecedented standard, no religious speaker would ever be irreparably harmed by being forced to deliver a message that it objected to, as it could always publicly explain that it is simply being compelled to deliver that message. What a preposterous misunderstanding of religious liberty.
Perhaps most strikingly, on the threshold question of the Court’s jurisdiction YU Pride Alliance contends that Yeshiva cannot avail itself of the Court’s precedent that benefited a neo-Nazi group seeking to parade through the predominantly Jewish town of Skokie, Illinois. Why not? Because, YU Pride Alliance says, Yeshiva’s effort to defend its fundamental institutional autonomy is somehow instead an “effort to break new ground in the Court’s First Amendment jurisprudence” and thus “does not enjoy [the] same presumption” of constitutionality that the neo-Nazi paraders did.
At the same time, YU Pride Alliance completely fails to address, much less dispute the existence of, the clear Free Exercise circuit split that Yeshiva’s brief highlights. That omission is especially odd given that three justices have already stated that they want to review that split: last Term, in Roman Catholic Diocese of Albany v. Emami, Justices Thomas, Alito, and Gorsuch would have granted cert to review New York’s insurance-coverage abortion mandate, which invoked the same split Yeshiva raises in its emergency application.
Yeshiva’s reply brief persuasively explains why it is both procedurally proper for the Court to address its emergency application and substantively necessary to grant it. If the Court denies Yeshiva’s request, it’s a safe bet that the adversaries of religious liberty will pivot quickly from opposing that request to using the Court’s denial as ammunition for their charge that the Court won’t protect the religious liberty of religious minorities.






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