The YU Pride Alliance at Yeshiva University announced on September 21st that they would agree to a “stay” of the June New York Supreme Court decision by Justice Kotler requiring the historically Jewish institution to officially recognize the LGTBQ club, including granting access to resources and equal treatment as other clubs.
The YU Pride Alliance agreed to a stay after Yeshiva University put all club activities on hold following the Supreme Court 5-4 decision to lift the September 9th hold placed by Justice Sotomayor on the New York court. The Supreme Court said YU had at “least two further avenues for expedited or interim state court relief” and could seek relief from the court only after “applicants seek and receive neither expedited review nor interim relief from the New York courts.”
Justice Alito wrote the dissenting opinion to lifting the hold in which he warned, “Yeshiva is almost certain to be compelled for at least some period (and perhaps for a lengthy spell) to instruct its students in accordance with what it regards as an incorrect interpretation of Torah and Jewish law.” He said this “loss of First Amendment rights for even a short period of time would constitute irreparable harm.”
The response by YU was to put on hold all clubs: “Considering the upcoming Chagim,” the university will hold off on all undergraduate club activities. At the same time, it immediately takes steps to follow the roadmap provided by the US Supreme Court to protect YU’s religious freedom.”
According to the YU student newspaper, “Sources close to the [university] administration told The Commentator that university officials [were] considering dissolving all clubs and student organizations to avoid recognizing the YU Pride Alliance as an official campus club.”
The YU Pride Alliance said they agreed to a stay “because we do not want YU to punish our fellow students by ending all student activities while it circumvents its responsibilities.”
In a statement to the student newspaper, YU said they “appreciate the gesture…and we look forward to it as an opportunity to resume the discussions we had begun, and which were halted by the lawsuit.” They also noted that clubs would resume after the holidays, saying, “it has been our plan to resume these activities very soon after the Jewish holidays and, with those holidays beginning in just a few days, we continue to expect to do so at that time.”
Yeshiva University and the YU Pride Alliance were set to appear on September 26 to stay the original June order requiring YU to recognize the club officially.
The legal issue is whether Yeshiva University is a religious corporation or a secular educational institution. If secular, it must comply with the New York City Human Rights Law (NYCHRL) and may not receive religious exemptions granted by the law. In the June decision requiring Yeshiva to acknowledge the LGTBQ club, Justice Kotler said YU is not a religious corporation.
Justice Kotler based the decision on YU’s organizational documents, which say in part that YU “is hereby continued as an educational corporation under the Education Law of the state of New York…Yeshiva University is and continues to be organized and operated exclusively for educational purposes” (emphasis added). Justice Kotler said, “Yeshiva’s organizing documents do not expressly indicate that Yeshiva has a religious purpose. Rather, Yeshiva organized…for educational purposes, exclusively.” The Justice said that the defendants would “have this court look beyond its own organizing documents and examine its functions and attributes to determine that it is a “religious” corporation as that term is used in the [NYCHRL exemption].”
According to the Justice’s decision, the defendants conceded that Yeshiva amended the charter from the original exclusively religious purpose. It seems this was done to broaden the scope of the degrees the university could confer. Justice Kotler concluded that “the court finds that Yeshiva’s educational function, evidenced by its ability to now confer many secular multi-disciplinary degrees, thus became Yeshiva’s primary purpose.”
Yeshiva has no religious affiliation, according to The Institute of Education Sciences (IES). The IES “is the statistics, research, and evaluation arm of the U.S. Department of Education. We are independent and non-partisan.”
But does this affect other universities that offer secular degrees and hold to a faith?
The Justice argued that “every school with a religious affiliation or association is not necessarily affected by this court’s determination that Yeshiva is not exempt from the NYCHRL. Rather, the inquiry must focus on the institution’s purpose, typically expressed in a corporation’s organizing documents. There may be schools organized under the education law that have a religious purpose, so they are exempt from the NYCHRL under Section 8-102 [religious liberty exemption]. Since Yeshiva has not done so, the court does not need to reach this issue.”
The other central issue is whether YU’s First Amendment rights are being violated. Justice Kotler argued that “the NYCHRL and the First Amendment are not incompatible” because “the First Amendment does not protect an individual from valid and neutral laws of general applicability, even when those laws forbid or compel conduct which goes against the grain of a religion.” Because the NYCHRL is a “neutral law of general applicability…it does not target religious practice, its intent is to deter discrimination, and it applies equally…other than those exempted as distinctly private or a religious corporation.” The Justice argued that because the NYCHRL had the religious carve-out and Yeshiva failed to meet the standard of the carve-out, their Free Exercise argument was rejected.
Justice Alito, in his Supreme Court dissent to removing the hold on New York Justice Kotler’s decision, seemed to disagree with Justice Kotler: “There has been no showing that granting an exemption to Yeshiva would undermine the policy goals of the NYCHRL to a greater extent than the exemptions afforded to hundreds of diverse secular groups.” And “A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.”
The lesson for universities might be that those who wish to have religious universities should specifically spell out a religious intent in their organizational documents. Otherwise, they may find themselves caught on shaky ground.
Caden Benedict is a Senior at Pepperdine University majoring in Economics and minoring in Great Books. He is the Founder and Editor-in-Chief Emeritus of the The Pepperdine Beacon, a media and news organization preserving and promoting the values and mission of the university through a relentless pursuit of truth. He plans to attend law school and enter the film industry after his education.
Photo: CC BY-SA 4.0 – File:Yeshiva University Stern College for Women 253 Lexington Avenue.jpg (Created 2012) by “Beyond My Ken”