Supreme Court Justice Sonia Sotomayor agreed Friday night to temporarily block a lower court order that required Yeshiva University to recognize a “Pride Alliance” LGBTQ student club.
The order from Sotomayor – who has jurisdiction over the lower court in the case – suggested that the full Supreme Court is still considering the issue and will issue a more permanent order at a later time.
For now, the university is temporarily shielded from having to recognize the group.
The case is complicated by threshold issues – such as the fact that New York State appeals courts have yet to rule on the merits of the dispute – which could be slowing down the court’s considerations.
Former and current students of the university brought the original challenge arguing that the school’s position violated a New York public accommodation law that bars discrimination based on sexual orientation.
The case is the latest religious liberty controversy to come before the Supreme Court.
Last term, the court’s conservative majority ruled in favor of religious conservatives in two separate disputes and in 2021, the court sided with a Catholic foster care agency that refused to consider same-sex couples as potential foster parents.
Justice Samuel Alito has repeatedly called for greater protections for the free exercise of religion including during a July speech in Rome. “Religious liberty is under attack in many places,” Alito said.
Yeshiva lost at the lower court level when a trial judge focused on whether the University qualified as a religious corporation within the meaning of the New York City Human Rights Law, a public accommodation regulation that bars discrimination based on sexual orientation. The law expressly excludes certain religious corporations and Yeshiva argued that it fell under the exception.
The court noted, however, that according to an amendment to the school’s charter that was adopted in 1967, the university is considered an “educational corporation.”
“Yeshiva’s organizing documents do not expressly indicate that Yeshiva has a religious purpose,” Judge Lynn R. Kotler said in holding that Yeshiva is not exempt from the law.
The court also rejected the school’s claims that the NYCHRL violates Yeshiva’s First Amendment Rights holding that the public accommodations law is a neutral law with general applicability to all parties.
“It does not target religious practice, its intent is to deter discrimination, only, and it applies equally to all places of public accommodation other than those expressly exempted as distinctly private or a religious corporation organized under the education or religious law,” Kotler wrote.
The judge said that the challengers sought “equal access” and that the school “need not make a statement endorsing a particular viewpoint.” Kotler also noted that some of Yeshiva’s graduate schools allow LGBTQ groups, undercutting the university’s arguments.
In court papers filed with the Supreme Court, the school argued that the lower court opinion represents an “unprecedented intrusion into Yeshiva’s church autonomy” and argues that as “a deeply religious Jewish university, Yeshiva cannot comply with that order because doing so would violate its sincere religious beliefs about how to form its undergraduate students in Torah values.”
Lawyers for the Becket Fund for Religious Liberty, representing Yeshiva, said that the lower court’s order is an “unprecedented” intrusion into the University’s religious beliefs and a clear violation of Yeshiva’s First Amendment rights.
A lawyer for the current and former students behind the challenge, who won in the lower court, argued that it was premature for the Supreme Court to step in because New York appellate courts have yet to rule on the merits and the state law issue has not been fully resolved.
“Not only do Applicants leapfrog the entire state appellate process, but they also press the Court to address both novel and weighty First Amendment questions on a rocket docket without the benefit of full briefing or oral argument,” lawyer Katherine Rosenfeld told the justices in court papers.
Rosenfeld said that the lower court ruling “simply requires” the University to grant the “Pride Alliance” access to the same facilities and benefits as its “87 other recognized student groups.”
“This ruling does not touch the University’s well-established right to express to all students its sincerely held beliefs about Torah values and sexual orientation,” Rosenfeld said.
Jillian Weinberg, a student at Yeshiva’s Ferkauf Graduate School of Psychology, told CNN in an interview that Ferkauf recognizes LGBTQ groups, even if Yeshiva’s undergraduate school does not.
She said that Ferkauf’s faculty and students “are concerned about the harm that President Ari Berman’s actions will cause to the mental health and well-being LGBTQIA+ students and faculty.”
The New York Court of Appeals has agreed to hear an appeal to the ruling this fall but refused to put the trial court’s ruling on hold prompting school officials to petition the high court.
This story has been updated with additional details.