SCOTUS Misses Multiple Marks, Allows NY State To Force Jewish School To Accept LGBTQ Group

P. Gardner Goldsmith | September 19, 2022
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In a ruling that exhibits two major salient court features, and reveals a more important third feature emerging from a study of the two, the majority of Justices sitting on the Supreme Court of the United States decided on September 14 to force top administrators of the New York City-based, Orthodox Jewish Yeshiva University to return to state-level courts and reargue for their right to not include an LGBTQ club on the campus.

Meaning, in the interim, the university will have to allow the group to operate on school grounds.

It starts off appearing a bit complex, but becomes clearer and clear the more one digs.

First, a quick take on the most recent news, from the SCOTUS…

Deciding on an emergency request called Yeshiva University et al v. YU Pride Alliance et al, the leftists (Sotomayor, Kagan, Brown Jackson) and so-called “conservative” Chief Justice John Roberts and Brett Kavanaugh Wednesday denied the university’s August 22 emergency appeal for a stay in enforcement of the so-called “New York City Human Rights Law” (NYCHRL), enforcement that is set to begin thanks to the June 14 NY State Supreme Court single-judge ruling against Yeshiva in the original case, “YU Pride Alliance et al v Yeshiva University et al,”  that could be heard by the full SCOTUS on emergency appeal or go back to the full NY State Supremes.

Which takes us back to June, when NY State Supreme Court Judge Lynn Kotler decided that Yeshiva – which, as its legal team notes, has the distinction of being the oldest Jewish institution of higher education in America – must allow the LGBT group to use its campus facilities.

The judge’s reasoning was, of course, a matter of legal hair-splitting, in which Kotler found that Yeshiva was not distinctly a “religious institution,” but was an “educational institution,” and, as a result, was not privileged to use the First Amendment as a defense against the NYCHRL and the complaint brought under it by the YU Pride group.

As The Commentator (the official university student newspaper) noted at the time:

“YU amended its charter in 1967, which previously stated that its religious purpose was ‘to promote the study of Talmud.’ In the amended charter, YU wrote that it ‘is and continues to be organized and operated exclusively for educational purposes.’ Kotler rejected YU’s contention that the original charter’s ‘religious educational purpose carries through.’” 

Pending a hearing by the full NY State Supreme Court, YU brought an emergency appeal to the US Supremes, which, after an initial look by Justice Sotomayor, saw their decision Wednesday to NOT grant an emergency stay, thus forcing the university to allow the pride group to operate and be recognized on campus under the command of the city of New York.

Which offers us the first facet of this.

Whether the university in question calls itself “religious” or it’s a comedy club should make no difference. The principle of private property ownership being directly tied to control stands, regardless of the “kind” of place. It this were a comedy club and an improve troupe demanded time to take the stage, the owners should retain full control unless the parties already have signed a contract stating to the contrary. The state is not – and never can be – a party to private agreements.

The second big facet of this case appears in the fact that Roberts and Kavanaugh joined the leftists of the SCOTUS for what appear to be politically driven reasons, indicating that they seem to want the local law to force university acceptance of this group, thus causing even bigger public relations problems for the school administrators should they eventually win the case and shut down the club.

The third lesson can be seen in looking at the opinion of the SCOTUS minority, composed of Justices Gorsuch, Thomas, Alito, and Barrett.

In part, they wrote:

“Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely ‘no.’ The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture. Yet that is exactly what New York has done in this case, and it is disappointing that a majority of this Court refuses to provide relief.”

And, as powerfully right as that sounds, and as morally correct as it is, that actually is NOT what the U.S. Constitution says.

Related: SCOTUS Rules States Can't Bar Religious Schools From Tax-Based Tuition Funds | MRCTV

Despite many people believing that the First Amendment universally protects freedom of speech, religion, and assembly, it does not. It specifically prohibits Congress from interfering with those rights.

Sadly, for those of us who believe in freedom, the First Amendment allows states to interfere with and infringe upon things like speech and even religious practice. For example, there were speech codes in many states until after the Civil War, and many states (including Maine, through to 1981) offered funds to religious schools.

Many leftists (Democrat, Republican, and other) argue that the so-called “incorporation doctrine” promoted by judges after the adoption of the Fourteenth Amendment “folded in” the first ten Amendments. But that is not the case. State legislatures and populations didn’t suddenly re-write their state constitutions to include the Bill of Rights – even though many states already had aspects of those principles in those constitutions.

And, even if states had engaged in what proponents of the “Incorporation Doctrine” purport, states “incorporating” the text of the First Amendment would have incorporated an amendment that specifically states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

So, yeah, that still would allow states to infringe on the rights that are noted.

As much as one might admire the “originalists” on the SCOTUS bench for supporting the right to free speech and religion in this case, and as much as one might agree with them that the case should have been heard on its merits within the SCOTUS, not punted back to New York, the argument about religion and speech which lies at the heart of the “originalists’” argument here is unsound.

One hopes that Americans who admire original intent and judges who supposedly abide by it – or try to – will recognize the real original meaning of the First Amendment. To do otherwise and still call oneself an “originalist” is unwarranted and inappropriate, regardless of the desired outcome.

Related: Hateful CNN: Smerconish Argues for Religious Discrimination from Gov. | MRCTV