Yeshiva University Asks Supreme Court to Block Order Forcing It to Recognize LGBT Club on Campus

Lower court order is 'an unprecedented intrusion into the autonomy of a religious organization,' the school argues

A Yeshiva University student wears a mask on the grounds of the university in New York on March 4, 2020. David Dee Delgado/Getty Images

New York City-based Yeshiva University filed an emergency application with the U.S. Supreme Court on Aug. 29 asking the court to stay a lower court order forcing it to recognize an LGBT student club.

The application comes as the high court has become increasingly protective of constitutionally protected religious rights in recent years.

Last year, the court ruled that Philadelphia violated the First Amendment when it refused to contract with a Catholic agency for foster care services because the organization doesn’t place children with same-sex couples. In 2018, the court found for a baker in Colorado who declined on religious grounds to make cakes for same-sex weddings.

In its new term beginning in October, the court will hear 303 Creative LLC v. Elenis, which deals with a Christian web designer in Colorado who refuses to create wedding websites for same-sex couples because of her religious beliefs.

Founded in 1897, the Orthodox Jewish university describes itself in court documents as “the world’s premier Torah-based institution of higher education.” The word “yeshiva” itself refers to a traditional Jewish religious school. Recognizing the LGBT student organization would violate its religious teachings, the school argues.

The university asked the U.S. Supreme Court to pause a lower court ruling that determined its refusal to recognize the YU Pride Alliance violated the New York City Human Rights Law (NYCHRL), which forbids discrimination based on sexual orientation and gender identity. In the alternative, the school asked the high court to take up the case and fast-track it.

The application (pdf) was filed on Aug. 29 in Yeshiva University v. YU Pride Alliance, court file 22A184. Justice Sonia Sotomayor ordered the YU Pride Alliance to respond by 5 p.m. on Sept. 2.

Not Exempt

In June, Judge Lynn Kotler of the 1st Judicial District of the New York Supreme Court, ruled that the university was not a bona fide religious corporation so, therefore, it was not exempt from the public accommodation provisions of the NYCHRL.

Kotler, a Democrat, ruled that even though the university is “religious” and “at first blush” appeared to be exempt from the law, its “organizing documents” do not “expressly indicate that Yeshiva has a religious purpose.”

Kotler stated that Yeshiva amended its charter in 1967 to become, in the words of the amending document, “an educational corporation under the Education Law of the State of New York.” The document states that “Yeshiva University is and continues to be organized and operated exclusively for educational purposes.”

Although in 1965, the NYCHRL “excluded ‘colleges and universities’ from classification as a place of public accommodation, in 1991, the City Council removed this exemption from the NYCHRL.” That means, the judge wrote, that the court’s finding that “Yeshiva is not exempt from the NYCHRL is wholly consistent with the legislative intent of the NYCHRL, which requires that exemption from it be narrowly construed in order to minimize discriminatory conduct.”

Kotler noted that at oral argument that Yeshiva offered to add “a more direct statement of religious purpose in its charter if plaintiffs would agree to dismiss the case.” This assertion “concedes the point,” she added.

Permanent Injunction

Yeshiva’s director of tax and compliance, Alan Kruger, “testified that Yeshiva registered as an educational corporation and not a religious corporation because ‘it would be difficult’ to produce documents showing entitlement to the latter exemption,” Kotler wrote.

Kotler issued a permanent injunction directing Yeshiva to “immediately grant Plaintiff YU Pride Alliance” official approval as a club. State appellate courts have so far failed to set aside the order.

The university’s attorney, Eric S. Baxter of the Becket Fund for Religious Liberty, argued in the U.S. Supreme Court application that if the court fails to stay the injunction “the nation’s leading Jewish university will be forced to give official recognition to a student organization in violation of its sincere religious beliefs and Torah values.”

“This is an unprecedented intrusion into the autonomy of a religious organization and a gross violation of the First Amendment,” Baxter wrote.

Forcing Yeshiva to recognize YU Pride Alliance violates both the principles of church autonomy and the Religion Clauses of the U.S. Constitution, he wrote.

The Becket Fund describes itself as “a non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.”

YU Pride Alliance attorney Katherine Rosenfeld of Emery Celli Brinckerhoff Abady Ward and Maazel LLP didn’t respond by press time to a request by The Epoch Times for comment.