Morissette, J., dissenting

A 5-4 Court on Wednesday denied Yeshiva University's request for a stay of a state-court preliminary injunction requiring it to recognize an LGBTQ+ undergrad student group. The majority (the Chief, Sotomayor, Kagan, Kavanaugh, Jackson) pointed out that Yeshiva had not sought a stay or expedited review in the state courts. Unlike the typical shadow docket case, the Court cannot hear this case on the merits for several layers of review. Justice Alito dissented for Thomas, Gorsuch, and Barrett. Typical shadow-docket stuff--it is obvious how we will rule on the merits of this religious-liberty claim so do not waste time with procedural niceties such as multiple layers of review.

Here is the interesting piece. Alito cites National Socialist Party v. Skokie for the proposition that a state-court denial of a stay is a final order--ignoring that the Illinois Supreme Court had denied that stay and expedited review, whereas here the trial court denied the stay and Yeshiva never asked the state appellate court or the state high court for a stay or expedited appeal. He then says "It is ironic that the theory that supported a stay in that case is eschewed here."

In what way is this ironic? Is it because Jews are involved in both cases? Does it matter that Jews were not party to Skokie? Was that case inherently Jewish because it involved Nazis? Is it less ironic if the non-Jews of Skokie, hopefully, also were not thrilled to have Nazis marching there? Does it matter that the Jews were targeted in Skokie as an ethnic group rather than religious (since Nazism does not distinguish religious from non-religious Jews). And what if, like many Jews, one believes the Nazis should have been allowed to march and Yeshiva should be required to recognize the student group--does it cease to be ironic?