The Supreme Courts order in the Yeshiva University case reads like an implicit threat

The Supreme Court handed down a brief and highly unusual order Wednesday evening that set the stage for more legal wrangling over the line between religious freedom and anti-discrimination laws.

The order itself is very narrow, giving lawyers for an orthodox Jewish university specific instructions on which motions they must file to ask New Yorks appeals courts to reconsider a decision against the university.

A state trial court ordered the university to recognize an LGBTQ student group, something the school refused to do on religious grounds. The school sought relief on the Supreme Courts shadow docket, a process for obtaining expedited relief from the justices without invoking the Courts ordinary processes. And the university actually had a strong case that the state court was at least partly in the wrong, under longstanding Supreme Court precedents.

While the Supreme Courts decision in Yeshiva University v. YU Pride Alliance is technically a loss for the university, because it leaves the trial courts order in place, the decision reads like an implicit threat to New Yorks appeals courts. It is very likely that, if New Yorks appeals courts do not step in to permit Yeshiva University to deny recognition to the pride group, the Supreme Court will do so in the near future.

Meanwhile, the four most conservative members of the Court dissented. They also joined an opinion by Justice Samuel Alito which, if it became law, would seriously damage many civil rights litigants ability to bring an anti-discrimination lawsuit against someone who claims that their discrimination is motivated by their religious faith. And Alitos approach could quite easily pick up the fifth vote it needs to become a majority opinion if the Yeshiva University case does return to the justices.

The case arises out of a dispute between Yeshiva, an Orthodox Jewish university in New York City, and a campus Pride Alliance group that wishes to be recognized as an official student organization by the university. The university refuses to do so, claiming that it would violate its sincere religious beliefs about how to form its undergraduate students in Torah values.

After the student group sued, a state trial court ordered the university to recognize the group, and two New York appeals courts denied the universitys efforts to swiftly block that order. That seemingly left the Supreme Court as the universitys last possible source of relief.

But the five justices in the majority the three liberals plus Chief Justice John Roberts and Justice Brett Kavanaugh denied the universitys request to block the trial courts decision, noting that the university technically could have filed additional motions in New Yorks appeals courts. Applicants may ask the New York courts to expedite consideration of the merits of their appeal, the Court wrote. They also may file with the Appellate Division a corrected motion for permission to appeal that courts denial of a stay to the New York Court of Appeals.

Thats an unexpected development. The Supreme Court typically does not provide lawyers with such detailed instructions on how they can navigate a states appellate process. Its a sign that this Court, with its recent extraordinary deference to religious conservatives, expects the university should prevail in state courts.

Moreover, Yeshiva actually made a fairly strong argument that the trial courts order violates longstanding doctrines giving religious institutions power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.

Should New Yorks appeals courts continue to deny Yeshiva the relief it seeks, the Supreme Court sent a fairly loud signal in its Wednesday order that it will not stay its hand a second time. If Yeshivas lawyers seek and receive neither expedited review nor interim relief from the New York courts, the Courts order states in its final line, they may return to this Court.

The justices, in other words, appear to be delivering a thinly veiled threat to New Yorks appeals courts: Grant Yeshiva the relief it seeks, or else the Supreme Court will.

Its worth noting that this case arrived at the Supreme Court on its shadow docket, a mix of emergency orders and other expedited matters that the justices decide without full briefing or oral argument.

Historically, when the Court decided a case, it ordinarily did so after the case was fully considered by lower courts, and after the justices received full briefing, heard oral argument, and often spent months drafting an opinion. This lengthy process was intended to prevent the justices from making a careless error in their ultimate decision. Because the Supreme Court has the final word on questions of federal law, it makes sense for it to spend a considerable amount of time with each case because there is no easy way to reconsider a Supreme Court decision.

Beginning in the Trump administration, however, the Court started ignoring its normal practices to rule swiftly in Trumps favor when a lower court blocked one of his policies prompting Justice Sonia Sotomayor to warn that her Court was putting a thumb on the scale in favor of the Trump administration.

The data bears Sotomayors accusation out. During previous administrations, asking the Court to take up a case on its shadow docket was considered such an extraordinary act that even the federal government was reluctant to do it. According to a 2019 paper by University of Texas law professor Stephen Vladeck, during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications averaging one every other [Supreme Court] Term.

But Trumps Justice Department ignored this longstanding norm, filing at least twenty-one applications for stays in the Supreme Court over the course of less than three years, including 10 in just the year-long Supreme Court term that began in October of 2018. And the Courts Republican-appointed majority rewarded Trump for this behavior, handing his administration a full or partial victory in about two-thirds of cases, according to Vladeck.

One consequence of the Courts eagerness to decide cases quickly and without full deliberation is that conservative private litigants have also started bringing cases on the Courts shadow docket with increasing frequency. And that creates a ton of unnecessary work for the justices. The old norms, which discouraged lawyers from seeking shadow docket relief, didnt just help ensure that the justices fully considered a case before making a decision, they also protected the justices from a cascade of motions seeking their immediate attention.

The Courts order in the Yeshiva University case is consistent with its old practice of encouraging lawyers to seek every possible avenue of relief from lower courts before bringing a matter to the justices attention. But because the order seems designed to pressure lower courts into granting Yeshiva the relief that it seeks, it is unlikely to deter future litigants from bringing shadow docket cases in the future.

In a dissenting opinion joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, Alito claims that his Court should have granted immediate relief to Yeshiva. Thats unsurprising, as Alito frequently takes maximalist stances in favor of religious conservatives.

And, indeed, Alitos opinion takes a distinctly maximalist approach to this case, calling for a legal rule that would make it very difficult to enforce anti-discrimination laws against anyone who claims that their religion requires them to discriminate.

In Employment Division v. Smith (1990), the Supreme Court held that religious objectors typically must follow the same laws as everyone else. A state may not single out people of faith for inferior treatment that is not imposed on secular individuals or institutions, but religious objectors must follow all neutral law[s] of general applicability.

But Alito claims that New Yorks anti-discrimination law is not neutral or generally applicable because it does not apply to benevolent orders indeed, it does not apply to any club which proves that it is in its nature distinctly private.

These kinds of carveouts from civil rights laws for private clubs are exceedingly common. The federal law banning businesses that offer their services to the public from engaging in many forms of discrimination, for example, exempts a private club or other establishment not in fact open to the public. It is likely that the First Amendment, which grants rights of free association to membership organizations that do not apply to public businesses, forbids states from enacting anti-discrimination laws that require genuinely private clubs to accept members they do not want to accept.

Alito, in other words, is saying that, if a state enacts an anti-discrimination law that exempts private clubs which the Constitution most likely requires it to exempt, then it must also exempt religious objectors from that law. In practice, that means Alito would give all religious objectors fairly sweeping exemptions from huge swaths of anti-discrimination law.

In fairness, Alito did suggest in Burwell v. Hobby Lobby (2014) that bans on race discrimination, at least in the workplace, may still be applied to religious objectors. But the position he lays out in his Yeshiva University dissent would likely give religious conservatives a broad right to engage in discrimination against women, LGBTQ Americans, and other groups that are often protected by civil rights laws.

And, if New Yorks appellate courts do not rule in Yeshivas favor, Alito will get the chance to pick up the fifth vote he needs to turn his approach into the law, once this case returns to the Supreme Court.

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