Religious Liberty Must Prevail for Yeshiva University

When my son recently began his first year in college, I kept my advice simple: make friends, have fun, and study, but ignore the propaganda.

Originally founded as a religious college, the university he's attending is now secular and progressive. You would think that parents whose children, unlike my son, attend overtly religious colleges and universities shouldn't have to give the same advice I did. But they do. At least for now.

On Wednesday, the Supreme Court – which normally defends religious freedom – refused to lift an order forcing Yeshiva University, the nation's largest Orthodox Jewish university, to officially recognize LBGTQ student advocacy group YU Pride Alliance over Yeshiva's religious objections.

Formed in 1897, Yeshiva strives to promote the study of the Hebrew Bible and "to assist in educating and preparing students of the Hebrew faith for the Hebrew Orthodox ministry.” The school's motto, "Torah Umadda,” which means "Torah and secular knowledge," calls its students to uphold religious values as citizens of the secular world.

According to university officials, the message of Torah on the issue of sexual orientation "is nuanced.” The school admits LGBT students, but has concluded that it cannot lend its "own name or seal of approval” to clubs that appear inconsistent with its values.

The students involved in the lawsuit hope that getting the club officially recognized will lead to cultural changes on campus. They are also seeking money damages.

Earlier this summer, a New York state court judge concluded that denying official recognition to YU Pride Alliance violated the New York City Human Rights Law (NYCHRL), which includes a ban on discrimination based on gender and sexual orientation. The judge ordered Yeshiva to immediately recognize the student group.

That court is probably wrong in concluding that Yeshiva is not exempt from the NYCHRL. It is certainly wrong to ignore the affront to Yeshiva's religious freedom rights under the Constitution.  

So why didn't the Supreme Court step in? It's complicated. Recent Supreme Court decisions explain that courts are barred from resolving religious disputes and interfering in the internal decision-making of religious organizations. Becket Law, the religious freedom legal powerhouse representing Yeshiva in court, is right to assert that just as this legal doctrine of church autonomy exempts certain employment decisions from judicial review, it must also "protect the Nation's leading Jewish university from an order commanding it to recognize a student club promoting views that contradict its sincere religious beliefs and Torah values.” Becket also warns that the state court's ruling "extends far beyond club recognition at Yeshiva.”

Faced with either violating its understanding of religious teaching or the state court's order, Yeshiva asked that the order be stayed while it appealed. After the request was ignored by courts in New York, Yeshiva asked the Supreme Court for emergency relief. The Court's majority suggested Yeshiva seek expedited review of its appeal or refile for interim relief. If that fails, Yeshiva could return to our nation's highest court.

Wednesday's order looks reasonable. But looks can be deceiving. Justice Samuel Alito – joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett – wrote a scathing dissenting opinion. "I doubt that Yeshiva's return to state court will be fruitful, and I see no reason why we should not grant a stay at this time. It is our duty to stand up for the Constitution even when doing so is controversial," Alito wrote. "The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture. Yet that is exactly what New York has done in this case, and it is disappointing that a majority of this Court refuses to provide relief.”

On Friday afternoon, Yeshiva announced to students that it would "hold off on all undergraduate club activities while it immediately takes steps to follow the roadmap provided by the US Supreme Court to protect YU's religious freedom." That's a pretty creative and gutsy move by a courageous school unwilling to abandon its mission.

Like my son's school, many colleges and universities that were founded as religious institutions aren't as brave. They cut ties with religion, either formally or in practice. For those few colleges and universities in America that continue to embrace their religious identity and strive to operate in a manner consistent with traditional teaching, the Constitution guarantees their autonomy to form the next generation. Godspeed to Yeshiva as it struggles to secure it.

Andrea Picciotti-Bayer runs the Conscience Project and is Director of Strategy for the Institute for Human Ecology at The Catholic University of America – the only national university of the Catholic Church in America.