Helfand: Illegal Discrimination Or Religious Freedom? Understanding Yeshiva University’s Case Against The YU Pride Alliance

Following up on my previous posts:

• 48 Cardozo Law Professors Urge Parent Yeshiva University To Reverse Its 'Wrong And Unlawful' Ban On LGBTQ+ Student Group (May 2, 2021)
• NY Times: State Judge Rules Yeshiva University Must Recognize LGBTQ Student Club (June 19, 2022)

CNN, Yeshiva University Asks Supreme Court to Let It Block LGBTQ Student Club:

Yeshiva University filed an emergency request with the Supreme Court on Monday, seeking to block a court order requiring the New York university to recognize a "Pride Alliance" LGBTQ student club.

In court papers, the school says that "As a deeply religious Jewish university, Yeshiva cannot comply with that order because doing so would violate its sincere religious beliefs about how to form its undergraduate students in Torah values."

Lawyers for the Becket Fund for Religious Liberty, representing Yeshiva, argued that the lower court's order is an "unprecedented" intrusion into the University's religious beliefs and a clear violation of Yeshiva's First Amendment rights.

The Supreme Court has asked for a response to the school's petition by Friday.

Forward, Yeshiva University LGBTQ Group Responds to School’s Emergency SCOTUS Petition:

The school wants to turn a case it lost in June into a First Amendment showdown

The Yeshiva University Pride Alliance responded Friday afternoon to the school’s petition to the U.S. Supreme Court to allow it to block the LGBTQ student group.

The group’s response challenges the university’s escalation of the dispute from a Manhattan courtroom to the U.S. Supreme Court largely on procedural grounds. It mostly does not address YU’s framing of the case as a First Amendment question in the emergency petition it filed to Justice Sonia Sotomayor on Monday.

“Applicants’ extraordinarily premature application blows past all prerequisites to this Court’s jurisdiction and its orderly review of state court orders,” the Pride Alliance wrote in its 48-page response, which Sotomayor had requested by end of day Friday.

Forward Op-Ed:  Illegal Discrimination or Religious Freedom? Understanding Yeshiva University’s Case Against the YU Pride Alliance:, by Michael Helfand (Pepperdine; Google Scholar):

YU’s constitutional claims in its case against the undergraduate LGBTQ club are strong, but it’s not clear that SCOTUS will choose to intervene

In a shot heard round the Jewish communal world, Yeshiva University has asked the Supreme Court to intervene in its litigation against the YU Pride Alliance, an LGBTQ student organization.

The lawsuit, which has been ongoing for over a year, revolves around Yeshiva University’s refusal to recognize the undergraduate YU Pride Alliance as an official student organization. YU argues that doing so runs counter to its Jewish values — and that to force it to act contrary to those values violates its First Amendment right to religious liberty.

The university’s constitutional claims are strong. But whether or not the Supreme Court will intervene is far less certain.

The basis for the current lawsuit is a New York City law that prohibits most, but not all, businesses open to the public from discriminating in the provision of services on the basis of sexual orientation.

Exempted from the anti-discrimination requirements are “distinctively private clubs,” “benevolent orders,” and religious corporations. Translated to the university context, this rule would prohibit any university from refusing to recognize an LGBTQ student organization.

But Yeshiva University is not your typical university. It is a university committed to the values and ideals of Orthodox Judaism, and its administration believes complying with New York City’s anti-discrimination law (by recognizing the YU Pride Alliance club) would require violating those religious commitments. The university’s brief to the Supreme Court is chock-full of images capturing how Jewish values and observances are woven into all facets of life on campus, from mezuzahs on doors to administrators studying Torah during halftime of school basketball games. ...

Because the Supreme Court has limited authority to review state and local law, Yeshiva University’s claims focus exclusively on the First Amendment question. And its argument comes in two forms.

Its first argument is a bold one: the First Amendment provides religious institutions the right to engage in internal religious decision-making free from governmental interference. ...

The more tried-and-true argument advanced by Yeshiva University is that it is entitled to an exception to New York City’s law because the law provides other exceptions — in fact, quite a lot of exceptions. ... [T]he First Amendment typically requires extending those exceptions to also permit religious exercise. While the argument is no slam dunk, the fact that New York City law has exceptions — such as for “distinctively private” institutions and “benevolent orders” — but fails provide a comparable exception that applies to YU generates a strong argument that New York City’s law, as applied to the university, violates the First Amendment.

Does this mean that the Supreme Court is likely to grant Yeshiva University’s request? Not necessarily. The court rarely grants applications for emergency relief. Instead, it typically allows cases to percolate up through the legal system and then decides the cases on the merits. In this case, that would mean waiting for the litigation to work its way through the New York state courts before rendering an opinion. ...

At the same time, a request of the Supreme Court to delay the implementation of a lower court order has been most common in First Amendment cases. And government rules that require a religious institution to act in a manner contrary to its religious beliefs is the kind of consideration that has, in recent years, gotten the court to grant this very kind of emergency relief.

The court’s increased willingness to jump into the fray in such circumstances has also garnered significant criticism. But the potential violation of a petitioner’s religious conscience is precisely the kind of irreparable harm that the Supreme Court weighs in favor of intervening now as opposed to later — and with good reason.

The next time the court will be able to intervene is likely a few years off. Will this be a case where the court, given the strength of the underlying merits, grants Yeshiva University an emergency stay, delaying the enforcement of the trial court’s order? Or will the court ultimately conclude that it is still too premature to intervene?

We’ll all know soon enough.

Deseret News, Why the ‘BYU for Orthodox Jews’ is Asking the Supreme Court For Help:

The Supreme Court is once again weighing how to balance religious freedom and LGBTQ rights in a case that could hold ramifications for faith-based schools across the country.

The case, Yeshiva University v. YU Pride Alliance, pits Orthodox Jewish leaders against students seeking official recognition for a gay rights club. Yeshiva, which is in New York City, has asked the Supreme Court to intervene after a lower court said it must recognize the Pride Alliance club as the lawsuit plays out.

“It is a highly unusual situation,” said Eric Baxter, vice president and senior counsel for the Becket Fund for Religious Liberty, the law firm that represents Yeshiva. “I’m not aware of any other case where a religious school like this has been told what to do on its own campus.” ...

Yeshiva is arguing that the lower court decision puts faith-based schools across the country at risk. The Supreme Court has repeatedly said that religious freedom protections don’t end when a school starts offering some secular degrees, Baxter said.

“It’s really an absurd decision to say an organization as intensely religious as Yeshiva is not religious. It shows that something has clearly gone wrong,” he said.

Meanwhile, the students’ supporters argue that school officials are overreacting, and that Yeshiva can accept the Pride Alliance club without adopting new policies on LGBTQ rights.

“In framing this as a religious emergency that has to be stopped, to me, (Yeshiva is) demonstrating the very homophobia that they claim doesn’t exist on campus,” said Rachael Fried, executive director of JQY (Jewish Queer Youth), a nonprofit that supports Orthodox Jewish queer youth, to Religion News Service.

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