By: Jonathan Levin  | 

Twelve Days of Debate: What Happened Between YU’s Supreme Court Filing and Justice Sotomayer’s Decision?

On Sept. 9, 12 days after Yeshiva University filed an emergency appeal to the U.S. Supreme Court, Justice Sonia Sotomayer gave YU the stay it sought, allowing it to not recognize the YU Pride Alliance pending further decisions.

But what happened during those 12 days?

Shortly after YU’s appeal to the court on Aug. 29, Sotomayer directed the YU Pride Alliance to respond later that week, giving a deadline of Sept. 2. Meanwhile, and continuing until shortly before Sotomayer’s decision, amicus briefs from many individuals and organizations of the Jewish and Christian faiths were filed in support of YU and its argument of religious liberty.

As directed by Sotomayer, the YU Pride Alliance and their lawyers, Emery Celli Brinckerhoff Abady Ward & Maazel LLP, submitted their reply in court documents on Sept. 2. Making their case for why Sotomayer should deny the university a stay, they criticized YU’s bypassing of the New York State appellate court system and pushed back at YU’s argument that the case concerned the First Amendment.

“Applicants’ extraordinarily premature application blows past all prerequisites to this Court’s jurisdiction and its orderly review of state court orders,” stated the alliance.

“It is a state law dispute at center stage in the ongoing state court proceedings: whether Yeshiva University qualifies as a public accommodation under the New York City Human Rights Law,” they added.

YU’s counter-response, filed the following day by their lawyers, the Becket Fund for Religious Liberty, pushed back at the alliance's arguments, asserting that under law, the court had jurisdiction and should intervene in YU’s favor.

“If this Court does not intervene, secular courts will force Yeshiva’s rabbis to yield to secular government on a religious decision,” read the response. “A New York state court has overruled the religious judgment of Yeshiva University and its rabbis about whether Yeshiva should have an official ‘Pride Alliance’ club for undergraduates. 

“Worse, the court ordered Yeshiva to comply ‘immediately.’ The state courts provide no available path for timely relief.”

As Yeshiva University and the YU Pride Alliance were making their case to the court, multiple amicus curiae — Latin for “friend of the court” — briefs were filed in favor of YU, mostly from organizations and leaders of the Christian and Jewish faiths. In total, 28 organizations, professors, schools and faith leaders filed 10 amicus curiae.

The filers included the Chief Rabbis of South Africa, Ukraine and the United Kingdom; the President of the Conference of European Rabbis; the Rabbinical Council of America; the Archdiocese of New York and the Council for Christain Colleges and Universities.

As of publishing, no amicus curiae backing the YU Pride Alliance have been filed.

One day after the last amicus brief was submitted, filed on behalf of Rabbi Ephraim Mirvis, Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Sotomayer issued her decision.

“Upon consideration of the application of counsel for the applicants and the response and reply field thereto,” an update on the case orders and procedures page stated, “it is ordered that the injunction of the New York trial court, case No. 154010/2021, is hereby stayed pending further order of Justice Sotomayor or of the Court.”

Based on the language of the statement, Sotomayer and the Court will likely revisit the matter at a future date.

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Photo Caption: U.S. Supreme Court

Photo Credit: Joshua Woods - Unsplash