Each new entry on the Supreme Court's emergency docket brings twists and turns. The latest lesson comes in Yeshiva University v. YU Pride Alliance. On June 24, the New York Supreme Court (the trial court) entered a permanent injunction, requiring YU to recognize the LGBT club. On August 23, the New York Appellate Division (the intermediate court) denied a motion to stay the trial court's permanent injunction. On August 25, the New York Appellate Division denied an emergency motion for leave to appeal the denial of the stay. That same day, the New York Court of Appeals (the state court of last resort) denied an emergency motion for leave to appeal the denial of the stay. Four days later, on August 29, YU filed an emergency application for a stay with the Supreme Court. This move, as I noted earlier this month, should have come as no surprise. YU's counsel, the Becket Fund, pursued every possible path in the lower court before going upstairs–or did they? (Disclosure: I've collaborated with Becket on several matters over the years.)
On September 14, a five-member majority of the Supreme Court issued an unsigned order, suggesting that YU could make two more moves in the New York judiciary.
The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court's denial of a stay to the New York Court of Appeals, as the Appellate Division clerk's office directed applicants to do on August 25. Applicants may also ask theAppellate Division to expedite consideration of that motion.
