The Supreme Court issued a brief and highly unusual injunction Wednesday night that paved the way for more legal wrangling over the line between religious freedom and anti-discrimination laws.
The order itself is very narrow, which makes lawyers for an Orthodox Jewish university specific instructions on which motions to file to ask the New York courts of appeals to reconsider a decision against the university.
A state court ordered the university to recognize an LGBTQ student group, something the school refused to do for religious reasons. The school asked for relief from the Supreme Court’s “shadow complaint,” a process to get accelerated relief from the judges without relying on the Court’s regular procedures. And the university had a strong argument that the state court was at least partially wrong, under lengthy Supreme Court precedents.
While the Supreme Court’s decision in Yeshiva University v. YU Pride Alliance is technically a loss to the university, as it upholds the court’s ruling, reading the decision as an implied threat to the New York courts of appeals. It is highly likely that, if the New York courts of appeals do not intervene to allow Yeshiva University to deny the pride group recognition, the Supreme Court will do so in the near future.
Meanwhile, the four most conservative members of the Court disagreed. They also echoed an opinion from Judge Samuel Alito that, if passed into law, it would seriously damage the ability of many civil rights litigants to file an anti-discrimination lawsuit against someone who alleges their discrimination is motivated by their religious faith. . And Alito’s approach could quite easily get the fifth vote, it should become a majority position if the Yeshiva University case returns to the judges.
Supreme Court order reads like a roadmap for college to ultimately win
The case stems from a dispute between Yeshiva, an Orthodox Jewish university in New York City, and a campus Pride Alliance group seeking recognition by the university as an official student organization. The university refuses to do so, claiming it “would” violate his sincere religious beliefs on how to train her undergraduate students in Torah values.”
After the student group filed charges, a state court ordered the university to recognize the group, and two New York courts of appeals denied the university’s efforts to quickly block that order. That seemingly left the Supreme Court as the university’s last possible source of relief.
But the five majority judges — the three Liberals plus Chief Justice John Roberts and Judge Brett Kavanaugh — declined the university’s request to block the court’s decision, noting that the university was technically could have submitted additional motions in the New York courts of appeal. “Applicants may ask the New York courts to expedite the merits of their appeals,” the Court wrote. They may also “file with the Appeals Division for permission to appeal that court’s refusal of suspension to the New York Court of Appeals.”
That is an unexpected development. The Supreme Court does not typically give lawyers such detailed instructions on how to navigate a state’s appeals process. It is a sign that this Court, with its recent extraordinary deference to religious conservatives, expects the university to take precedence in state courts.
In addition, Yeshiva actually made a pretty strong argument that the court order violates time-honored doctrines that give religious institutions “the power to decide for themselves, free from state interference, on matters of church government as well as those of faith and doctrine. “
Should the New York courts of appeals continue to deny Yeshiva the relief he’s requested, the Supreme Court’s ruling on Wednesday sent a pretty loud signal that it won’t hold back a second time. If Yeshiva’s attorneys “seek and do not receive expedited review or injunctive relief from the New York courts,” the Court’s order in the final line states, “they may return to this Court.”
In other words, the judges appear to pose a thinly veiled threat to the New York courts of appeal: Give Yeshiva the relief it seeks, or else the Supreme Court will.
The Court is beginning to feel the pain of its own “shadow role”
It’s worth noting that this case arrived at the Supreme Court on its “shadow list,” a mix of emergency injunctions and other expedited cases that the judges decide without a full briefing or oral pleadings.
Historically, when the Court decided a case, it usually did so after the case had been fully considered by lower courts, and after the judges had received full briefings, heard oral pleadings, and often spent months drafting an opinion. This lengthy process was designed to prevent the judges from making a careless mistake in their final decision. Since the Supreme Court has the final say on issues of federal law, it makes sense that it spends a significant amount of time on each case because there is no easy way to reconsider a Supreme Court decision.
Beginning in the Trump administration, the Court began ignoring its normal practice of quickly ruling in Trump’s favor when a lower court blocked one of his policies — prompting Judge Sonia Sotomayor to warn that her Court is “a thumbs up put in favor of” the Trump administration.
The data supports Sotomayor’s accusation. During previous administrations, asking the Court to hear a case over its shadow file was considered such an extraordinary act that even the federal government was reluctant to do it. According to a paper from 2019 by Stephen Vladeck, University of Texas law professor, “During the sixteen years of the George W. Bush and Obama administrations, the Solicitor General has filed a total of eight such applications — an average of one per other [Supreme Court] Term.”
But Trump’s Justice Department ignored this long-standing norm, filing “at least twenty-one Supreme Court residency applications” over the course of less than three years, including 10 in just the Supreme Court’s year-long term due in October 2018. began. And the Republican-appointed majority of the Court rewarded Trump for this behavior, handing his administration a complete or partial victory in about two-thirds of the cases, Vladeck said.
As a result of the Court’s eagerness to decide cases quickly and without full deliberation, conservative private litigants are also increasingly bringing cases to the Court’s shadow bench. And that creates a lot of unnecessary work for the judges. The old standards, which discouraged lawyers from seeking help in the shadow indictment, not only ensured the judges fully consider a case before making a decision, they also protected the judges from a cascade of motions that demanded their immediate attention. .
The court’s decision in the Yeshiva University The case is in line with the old practice of encouraging lawyers to seek all possible remedies in lower courts before bringing a case to the attention of the judges. But because the injunction appears to be intended to pressure lower courts into giving Yeshiva the relief it seeks, it is unlikely to deter prospective litigants from pursuing shadow files in the future.
Alito wants to make major cuts in anti-discrimination law
In a dissenting opinion, joined by Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett, Alito argues that his court should have granted Yeshiva immediate relief. This is not surprising, given that Alito often takes maximalist stances in favor of religious conservatives.
And indeed, Alito’s view takes a distinctly maximalist approach to this matter, calling for a legal rule that would make it very difficult to enforce anti-discrimination laws against anyone who claims their religion requires them to discriminate.
In Employment Division v. Smith (1990), the Supreme Court ruled that religious opponents must generally follow the same laws as everyone else. A state may not single out believers for inferior treatment not imposed on secular individuals or institutions, but religious objectors must follow all “neutral laws.”[s] of general applicability.”
But Alito argues that New York’s anti-discrimination law is not neutral or universally applicable because it… does not apply to “benevolent orders” — indeed, it does not apply to “any club that proves it’s obviously private by nature.”
These kinds of exclusions from civil rights laws for private clubs are extremely common. The federal law prohibiting companies that offer their services to the public from engaging in many forms of discrimination, for example, defers exemptions”a private club or other establishment that is not in fact open to the public.” It is likely that the First Amendment, that grants rights of free association to membership organizations that don’t apply to public companies, prohibits states from enacting anti-discrimination laws that require real private clubs to accept members they don’t want to accept.
In other words, Alito says that if a state passes an anti-discrimination law that exempts private clubs that the Constitution most likely requires it to exempt, it must also exempt religious opponents from that law. In practice, this means that Alito would give all religious opponents quite sweeping exemptions from huge parts of the anti-discrimination law.
In fairness, Alito suggested in Burwell v. Hobby Lobby (2014) that a ban on racial discrimination, at least in the workplace, can still be applied to religious objectors. But the position he’s in his… Yeshiva University dissent would likely give religious conservatives a broad right to participate in discrimination against women, LGBTQ Americans, and other groups often protected by civil rights laws.
And if the New York courts of appeals don’t rule in Yeshiva’s favor, Alito will have a chance to pick up the fifth vote he needs to turn his approach into law, once this case returns to the Supreme Court.