The Supreme Court on Wednesday gave a weird reprieve, but little hope of ultimate success, to New York officials who want to negate the religious freedom of Yeshiva University in New York City. Alas, it is just such reprieves that give lower courts and public officials, along with Democratic presidential administrations, encouragement to keep violating religious liberty and harassing believers.
In recent years, the high court has issued a long, long line of decisions or court orders favoring the free exercise of religion, as guaranteed by the First Amendment. Most observers expected that trend to continue when the full court considered a request for an emergency order to put on hold a New York judge’s ruling against Yeshiva. Instead, on narrow procedural grounds, a 5-4 court majority refused to grant the “hold” order, meaning Yeshiva for now must comply with the New York judge’s ruling.
Yeshiva, a Modern Orthodox Jewish institution citing clear, faith-based standards on sexual morality, had refused to grant formal recognition to the homosexual “pride” club while otherwise committing to “an environment that welcomes all students, including those of our L.G.B.T.Q. community.”
New York state court Judge Lynn Kotler ruled tolerance wasn’t enough and that Yeshiva must recognize the club. She did this by claiming, rather bizarrely, that Yeshiva is a largely secular institution that doesn’t qualify for the state’s religious exemption to its human rights law. The mind reels. Yeshiva is the most prominent Orthodox Jewish university in the country. Indeed, the very word “yeshiva” is defined as a traditional Jewish educational institution, with some definitions specifying that it’s a place where students specifically study religious texts.
Anyway, Yeshiva sought emergency relief from the Supreme Court, backed by supportive legal briefs by Catholic, Mormon, and Evangelical institutions. For now, Yeshiva sought merely a “hold” order, allowing its long-standing policy to stay in effect until it could work through the ordinary appeals process to have the merits of its case fully argued. In prior First Amendment cases, the court has recognized that the potential harms to First Amendment rights would be “irreparable” if those rights were forfeited during the long interim of a full appeals process. Again and again, it has issued injunctions against actions that would force institutions to violate their professed faith standards until the legal claims of those standards could be fully adjudicated.
Not here, though. With frequent “split the difference” Justices Brett Kavanaugh and John Roberts joining the high court’s three liberals, the 5-4 decision sent Yeshiva back to New York state courts yet again on the spurious pretext that those state courts might still grant them emergency relief. Amid all the procedural legerdemain, though, the reality is that Yeshiva must, in the meantime, comply with an order that obviously violates its religious character.
Without that procedural dodge, Kavanaugh’s and Roberts’s earlier rulings on First Amendment cases indicate Yeshiva will ultimately succeed — but only after losing its right to abide by its own religious practices for two or more years.
This habit of Roberts and Kavanaugh of punting decisions about people’s rights into the future muddies the waters. It gives legal succor to lower courts and officials to refuse to abide by the clear dictates of the First Amendment and of repeated ultimate rulings by the highest court in the land.
It doesn’t help when leftist administrations such as President Joe Biden’s signal that religious liberty is a nonissue and can be ignored. Biden is doing this in many ways, including with administrative rules changes that reinterpret Title IX of national education law prohibiting sex discrimination. The public comment period for the proposed change closed on Sept. 12. (Suspiciously, the administration says a “clerical error” caused hundreds of thousands of comments to vanish). Biden’s proposal would force schools to enshrine transgender ideology into their policies, against the wishes or even knowledge of parents, and “could raise religious liberty issues for students, faculty, staff, and employees at schools, colleges, and universities,” said Robert Eitel, president of the Defense of Freedom Institute.
Biden’s reinterpretation also would redefine pregnancy to include abortion and therefore coerce schools and their personnel, even those with religious objections, into providing abortion referrals or access.
It’s one thing for people to be free to seek their own options. In a free country, though, the government shouldn’t coerce third parties — institutions, businesses, individuals — to provide those options proactively, against their deepest beliefs. Every time the Supreme Court dodges these issues, government officials find more excuses to become coercive.
