Roberts and Kavanaugh Issue a Surprise Warning Shot to Conservative Lawyers – By Mark Joseph Stern (Slate) / Sept 15, 2022
The Supreme Court divided 5–4 in a clash over religious liberty and LGBTQ equality on Wednesday, forcing Yeshiva University to stop discriminating against a gay rights group on campus. But the majority’s order had little to do with this culture-war skirmish. Instead, it was a rebuke of Yeshiva—and specifically, its overeager lawyers—for racing to SCOTUS after losing in the lower courts because of their own errors. Chief Justice John Roberts and Justice Brett Kavanaugh did not side with the three liberals against the university because they think gay students deserve equal treatment. They did so because Yeshiva brazenly abused the court’s shadow docket on the assumption that it would get special treatment. It was an understandable gamble. But it failed.
Yeshiva University v. YU Pride Alliance arose after the school denied official recognition to a student group that affirms the equal dignity of LGBTQ people. Yeshiva calls itself a Jewish university; however, it is incorporated as a secular institution in order to receive government funds, and fewer than 5 percent of students major in Jewish studies. The LGBTQ student group accused the school of violating the New York City Human Rights Law and sued for formal recognition. Yeshiva argued that it was exempt from the Human Rights Law because it is a “religious corporation”—and added that if the law did apply, it violated the First Amendment’s free exercise clause.
A state trial court sided against the university in June. The court held that New York City’s Human Rights Law does apply, noting that Yeshiva’s own charter says it operates “exclusively for educational purposes,” not religious training. The university sought relief from an intermediate appeals court called the First Department, which turned it down.
Yeshiva then tried to appeal the First Department’s order to New York’s highest court. In the process, it made a mistake, one that’s fairly technical but still important. State law requires a party to ask the First Department for permission to appeal an order; Yeshiva failed to do so properly, filing the wrong application. The First Department informed the university of its error and instructed it to refile the correct application. After that, it could appeal to the state’s highest court—then, if necessary, to SCOTUS.
CONTINUE > https://slate.com/news-and-politics/2022/09/roberts-kavanaugh-lgbtq-yeshiva-shadow-docket.html
