As I discuss here, Yeshiva University was enjoined by a New York state court to recognize a gay group on its undergraduate campus, in violation of the school’s Torah-based religious conscience. Justice Sonia Sotomayor granted the school an interim stay of the injunction on Friday, but late today, the Supreme Court ruled 5–4 that Yeshiva must go back to state court to ask the same appeals courts for the same relief — and must labor under the injunction in the interim. Chief Justice John Roberts and Justice Brett Kavanaugh joined with the three liberals (including Justice Ketanji Brown Jackson) in this ruling. Justice Samuel Alito wrote for the four dissenters that Yeshiva should win on the merits and is being deprived of its religious liberty by having the case sent back, deeming it “ironic” that the Court denied to the nation’s most prominent religious Jewish university the same relief it once granted to Nazis:
Unless a stay is granted, Yeshiva will be required to recognize the [YU Pride] Alliance as an official student group and to grant it all the privileges extended to other such groups. As the Alliance has contended, this would force Yeshiva to make a “statement” in support of an interpretation of Torah with which the University disagrees. The loss of First Amendment rights for even a short period constitutes irreparable harm, and the appellate process in the state courts could easily drag on for many months. . . . The majority does not address our well-established standard for granting a stay but instead suggests that we cannot grant a stay because the New York courts have not entered a final order. But the state courts’ denial of interim relief constitutes a final order under National Socialist Party of America v. Skokie, 432 U. S. 43, 44 (1977) (per curiam). It is ironic that the theory that supported a stay in that case is eschewed here. . . .
The majority instructs Yeshiva to pursue two avenues of relief in state court before filing another application here. First, the University is told to seek “expedit[ed] consideration of the merits of [its] appeal.” . . . But even expedited review could take months, and during all that time, the University would be required to continue to make the statement about Torah that it finds objectionable. Thus, an expedited appeal in and of itself would not be sufficient to protect Yeshiva’s First Amendment rights. Second—and more to the point—the majority seems to think that it is still possible for the University to persuade the Court of Appeals to grant a stay. Of course, the Court of Appeals has already denied Yeshiva’s application for interim relief, but the majority interprets a case comment written by a court clerk employed by the Appellate Division to mean that the Court of Appeals may give Yeshiva a second bite at the apple notwithstanding its previous denial. That interpretation is dubious, yet the majority seizes upon it as dispositive. I doubt that Yeshiva’s return to state court will be fruitful, and I see no reason why we should not grant a stay at this time. It is our duty to stand up for the Constitution even when doing so is controversial.