By: Jonathan Levin  | 

Supreme Court Denies Stay in 5-4 Decision, Vacating Sotomayor’s Order

Reversing last week’s decision by Justice Sonia Sotomayor, the U.S. Supreme Court rejected Yeshiva University’s emergency request for a stay on a lower court’s order directing it to recognize an LGBTQ+ club in a 5-4 decision Wednesday. 

The majority opinion denied YU’s stay, saying the university should have filed with New York State courts to have their appeal of June’s decision expedited and to have the Aug. 23 reversal of YU’s stay by the New York Appellate court corrected, which they did not do.

“The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief,” stated the unsigned order.

Justices Sotomayor, Kagan, Roberts, Kavanaugh and Brown Jackson sided with the majority opinion, which was unsigned.

Justice Alito, joined by Justices Thomas, Gorsuch and Barett, dissented.

“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,” wrote Alito. “Yet that is exactly what New York has done in this case, and it is disappointing that a majority of this Court refuses to provide relief.”

The dissenting opinion argued that YU was entitled to a stay under the law since the university showed the court that it would likely win the case if the court reviewed it, that it would “suffer irreparable harm” during the lengthy appellate process and that “neither the interests of other parties nor those of the public militate in favor of denial.” 

The YU Pride Alliance claimed a victory. “This Supreme Court decision is a victory for Yeshiva University students who are simply seeking basic rights that are uncontested at peer universities,” they told The Commentator. “A majority of the Supreme Court has ruled that this case must go through the normal state process, rejecting the university administration's unprecedented, premature, and harmful rush to the highest federal court in the country.

“We are confident that we will continue to overcome the administration's aggressive litigation strategies against its own LGBTQ+ students, who choose to attend Yeshiva University because they are committed to the school's mission.”

Eric Baxter, senior council and vice president at the Becket Fund for Religous Liberty, the firm representing YU, told The Commentator that Yeshiva University would comply with the  decision and would return to the court if needed. 

"Today the Supreme Court instructed Yeshiva University to make an additional effort to get the New York courts to grant them emergency relief and made clear that if that protection is not provided, they can return to the Supreme Court to seek its protection again,” Baxter said. “We will follow the Court's instruction."

In June, a New York State judge ordered YU to recognize the YU Pride Alliance. The university's appeal was rejected by the New York Appellate Court on Aug. 23, prompting them to ask the U.S. Supreme Court for an emergency stay.

As both sides presented their case in court, multiple amicus briefs were filed in favor of YU from multiple organizations and leaders of the Jewish and Christian faiths. A day after the last brief was filed, Sotomayor, who had the authority to approve, deny or refer the case to the court, gave YU a temporary stay, which Wednesday’s ruling vacated.

Suggesting that the court would review and rule in favor of Yeshiva University's case in the event its appeal to New York State appellate courts is denied, Alito wrote “At least four of us are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before ​​us.” 

Chaim Book, Ariel Kahan and Zachary Notkin contributed to this article

This article was updated to include a quote from Eric Baxter, senior council and vice president at the Becket Fund for Religious Liberty

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Photo Caption: The U.S. Supreme Court rejected Yeshiva University’s request for a stay

Photo Credit: Mark Thomas - Unsplash