Must religious institutions abandon certain core tenets to operate in the public square? That question is at the heart of yet another lawsuit arising from the tensions between religious liberty and anti-discrimination laws.
This week, New York’s Yeshiva University — an Orthodox Jewish university — filed an emergency application to the U.S. Supreme Court after a state supreme court judge ordered the school to recognize an LGBT student group in violation of its religious beliefs regarding sexual morality. Yeshiva has asked for a stay of the lower court decision’s ruling pending their appeal. In the alternative, it has asked for a petition for writ of certiorari so the high court can order briefing and arguments and consider the full case on its merits.
Yeshiva maintains that the “message of Torah on [the LGBT] issue is nuanced, both accepting each individual with love and affirming its timeless prescriptions.” Accordingly, although Yeshiva admits LGBT students, as it is “wholly committed to and guided by Halacha and Torah values,” it cannot lend its “own name or seal of approval” to clubs that appear “[in]consistent with [its] Torah values.” Likewise, Yeshiva has declined to approve “proposed student clubs involving shooting, videogames, and gambling,” as well as a proposed chapter of the Jewish fraternity Alpha Epsilon Pi.
The case, YU Pride Alliance v. Yeshiva University centers not on whether Yeshiva’s decision to decline to recognize the student club was a religious one since all parties agree that it was but on whether Yeshiva itself is a religious corporation for purposes of the New York City Human Rights Law. That law prohibits any “place or provider of public accommodation” from discriminating based on, among other things, actual or perceived gender and sexual orientation.
The plaintiffs argued that Yeshiva had violated the law by refusing to recognize their student group, admitting that in the creation of the group, they sought to alter Yeshiva’s religious environment. Yeshiva countered that it was a “religious corporation incorporated under the education law” as defined in section 8-102 of the human rights law, making it exempt. YU Pride disagreed, and State Supreme Court Justice Lynn Kotler sided with the student group.
Yeshiva’s motto — “Torah Umadda” — reflects its core mission: the pursuit of rigorous religious and secular studies. All students engage in high-level study of Hebrew scripture, the Talmud, and the vast corpus of Jewish texts. The academic calendar is in harmony with the Jewish calendar, observing the Sabbath and all Jewish holy days. The campuses are sex-segregated in accordance with Jewish law, the food offered is strictly kosher, doorways have mezuzot affixed, and each student has a mashgiach ruchani (spiritual advisor).
Yet despite these facts, Kotler ruled in June that the Manhattan-based university was not organized as a “religious corporation” and was therefore subject to the New York City Human Rights Law. For her conclusion, she relied on amendments to Yeshiva’s 1967 charter declaring that it was “an educational corporation under the education law of the State of New York … organized and operated exclusively for educational purposes.” She added that, in addition to Yeshiva’s failure to organize for expressly “religious purposes” as required under New York Law, the university confers “many secular multi-disciplinary degrees,” making education Yeshiva’s primary purpose. In the judge’s view, it seems “educational purposes” include neither religious education nor the use of secular education for religious purposes.
Kotler issued a permanent injunction against the university, ordering it to immediately grant the YU Pride Alliance “full and equal accommodations, advantages, facilities, and privileges afforded to all other student groups at Yeshiva.” Yeshiva’s two motions to stay the injunction were denied by New York appellate courts.
A forthcoming law review article by Emory University Law Professor Michael J. Broyde explains how universities that incorporate under secular charters face challenges in claiming the religious status that might exempt them from otherwise generally applicable anti-discrimination laws.
These “secularly chartered but religiously motivated” universities are often caught in a pickle: discrimination against funding religious institutions leads to a financial need for a secular charter. But then a secular charter leads to difficulty in receiving a religious exemption from anti-discrimination laws.
There should be no pickle. As Chief Justice John Roberts opined in Espinoza v. Montana Department of Revenue (2020), “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.” To discriminate against them by requiring them to choose between their religion or access to public funding for which they would otherwise qualify as “odious to the Constitution.” The same standard should apply to religious universities.
But despite whatever ambiguity might currently exist in these scenarios, Yeshiva argues that it is a university’s religious status that ought to win the day.
In Yeshiva’s emergency petition to the Supreme Court, Eric Baxter of the Becket Fund for Religious Liberty argued that the state court “cursorily rejected” its First Amendment Free Exercise Clause claim. He argued that the school is quintessentially religious, writing that the entire Yeshiva undergraduate experience is designed to form students in the Jewish faith.
[W]hen the secular authorities of New York purport to overrule the religious authorities at Yeshiva — and when the civil courts insist the First Amendment has nothing to say about the matter — something has gone terribly wrong. And when those courts also insist upon ‘immediate’ obedience by religious authorities to civil ones, this Court’s intervention is urgently needed to preserve the status quo and protect Applicants’ religious character, at least until such time as this Court can consider the case on its merits.
Among the questions presented to the Supreme Court, Yeshiva asks whether the New York law can override Yeshiva’s religious judgment on what groups to recognize. It also queries whether the New York law is “neutral” and “generally applicable” as required by Employment Division v. Smith (1990), and alternatively, whether Smith ought to be overruled.
This is the second time Employment Division v. Smith has made an appearance at the Supreme Court in as many years. In 2021’s Fulton v. City of Philadelphia, the court clarified that under Smith, a law may burden religion if it is neutral and generally applicable, but if not, then the burden on religion must be justified by a compelling government interest. Ultimately, the Fulton Court held that the city’s refusal to contract with a Catholic foster service agency was not pursuant to a neutral and generally applicable law because its policy allowed for exceptions to the anti-discrimination requirement at the sole discretion of the Philadelphia Commissioner.
Yeshiva’s emergency application was filed with Justice Sonia Sotomayor, who handles emergency matters in the Second Circuit. She can rule on the application or refer it to the full court. Defenders of the free exercise of religion in public life should pay close attention to what the court does next.