An Orthodox Jewish university in New York City is the latest to join the war over when religious belief provides an exemption from anti-discrimination laws — especially when those laws benefit LGBTQ people.
On Friday, Judge Sonia Sotomayor handed over a short and inexplicable orderallowing Yeshiva University to temporarily deny recognition to an LGBTQ student group.
While Sotomayor’s injunction was likely issued to give the Court more time to investigate the matter, it is known as: Yeshiva University v. YU Pride Alliance — the university says the process for recognizing sororities ends Monday and it would be forced to recognize the LGBTQ group if the Court didn’t act sooner — it almost certainly bodes well for how the full Court will rule in this case. Even if Sotomayor doesn’t end up siding with the university, Republican appointees hold six of the Court’s nine seats, and they have shown extraordinary concern for conservative religious litigants.
That said, this case raises unusually difficult questions about the First Amendment. The student group at the center of this case wants the university to recognize it as an official campus group — a status that, the university laments, would require it to “endorse” the group’s views.
If the Pride Alliance only sought access to conference rooms or other facilities of Yeshiva University, they would be in a stronger position under existing law. But the Pride Alliance campus is looking for more. They seek the imprimatur of the Orthodox Jewish university as the “Yeshiva University Pride Alliance.” And that is probably more than the student group is allowed to demand from a religious institution. Yeshiva University makes a strong case that requiring it to lend its name to an LGBTQ student group, even though a state court has ruled that New York’s anti-discrimination law requires it, violates its right to “internal management decisionsabout his own interpretation of the Jewish faith.
An open question is whether the Court will limit its ruling to similar disputes between religious universities and campus groups, or whether it will pronounce a bigger victory for religious conservatives. In other words, will this Court hear and use this case, in which a conservative religious organization makes a fairly strong legal claim, to cut back more than necessary on anti-discrimination efforts on campus?
What the current law says about discrimination on campus
The Yeshiva University case is at the intersection of two separate legal precedents. One states that the government has a fairly broad power to address discrimination on campus. The other gives religious institutions a lot of authority over questions about their own religious teachings.
Pursuant to the Supreme Court ruling in Bob Jones University v. United States (1983) the government can refuse to subsidize universities that deal with racial discrimination. And under Christian Legal Society v. Martinez (2010) a university (even a public university bound by the First Amendment) can prohibit campus groups from discriminating against students who want to join. These decisions should not be jeopardized by a decision in favor of Yeshiva University.
In Bob Jonesthe Court ruled that the IRS could deny tax-exempt status to a notoriously racist university in South Carolina. “The government has a fundamental, overriding interest in eradicating racial discrimination in education,” the Court explained. And that interest is strong enough to justify refusing a tax subsidy at a religious university because of its policies banning interracial dating.
More recently, in Christian Legal Associationthe Court ruled that a public university may require student organizations that receive certain benefits from the university to: accept all students who want to joineven if the organization has a religious objection to accepting certain students (in Christian Legal Associationwanted a sorority to exclude students who are guilty of “unrepentant homosexual behavior”).
Read together, these cases establish certain propositions. One is that the government itself may use its resources to combat discrimination. It can deny grants and other benefits to organizations that discriminate, and prevent those organizations from using a public university’s name and logo to promote its views. Universities may also have their own anti-discrimination policies and may reject sororities that violate these policies.
Meanwhile, a second line of business finds that religious institutions have absolute control over certain matters of internal religious governance, even if that religious governance leads to discrimination that would be illegal elsewhere. As the Court in Kedroff v. Saint Nicholas Cathedral (1952) religious organizations have the “power to decide for themselves, free from state interference, on matters of church government as well as those of faith and doctrine.”
In addition, when the courts determine that a particular issue is a “matter of church government,” that is an extremely strong decision. For example, the Court has held that anti-discrimination laws do not apply at all to the way religious institutions select their “ministers”, and it has broadly defined the term “minister” to include not only traditional clergy but also many teachers in religious schools. . That means a religious institution can fire a preacher — and possibly a math teacher — for objecting to this employee’s skin color.
Yeshiva University’s strongest legal argument is that its decision on whether or not to recognize an LGBTQ group on campus is a matter of internal governance within a belief that goes beyond government regulation.
Suppose, for example, that a dispute arises within a Jewish synagogue about whether congregation members show an orange on the traditional Seder plate that’s the centerpiece of Passover celebrations (many modern Jews place an orange on the Seder sign as an expression of sympathy for feminism or LGBTQ rights, but this is a relatively new practice). The question of whether an orange belongs on the Seder Plate is a fairly classic question of Jewish faith or doctrine. And so, under kedroffthe government should not try to solve this issue one way or another.
Yeshiva argues that whether it should recognize an LGBTQ student organization is similarly a matter of religious belief or doctrine, and they make a pretty strong case for this position in their briefing. It is noteworthy that the Pride Alliance does not only seek access to conference rooms on campus. It is trying to use the name of the university and declare itself as the Yeshiva University Pride Alliance. That would indicate that the university endorses, or at least approves, the views of the Pride Alliance.
But the university claims the Pride Alliance’s views are “inconsistent with its Torah values” — that is, inconsistent with Yeshiva’s understanding of what the Jewish faith teaches. Thus they make a strong argument under: kedroff. A state law, even a state anti-discrimination law, must not define the limits of what a particular faith is allowed to teach.
The Supreme Court could go far beyond what is necessary to rule in Yeshiva’s favor
As mentioned above, cases such as: Bob Jones and Christian Legal Association give the government and individual universities many powers to combat discrimination. But the current Supreme Court is very concerned about claims from religious conservatives. There is therefore a risk that this Court will yeshiva University case as an excuse to give the religious right a more sweeping victory than cases like kedroff require.
As the Court ruled in June: Carson v. Makin that the state of Maine should pay for education in religious primary and secondary schools — including those with anti-LGBTQ views — as long as it has a tuition voucher program that funds non-religious private education. carson relied on the extraordinary claim that the government’s neutrality towards religion itself may be “discrimination of religion”.
Then, a few days after it was handed over carsonthe Court has ruled in Kennedy v. Bremerton School District in which it deliberately misrepresented the facts of the case in order to place them in a light more favorable to religious law.
Likewise, less than a month after Judge Amy Comey Barrett’s confirmation gave Republican appointees a supermajority in the Supreme Court, that new majority made a transformative decision. Roman Catholic Diocese of Brooklyn v. Cuomo (2020), undermining three decades of precedent that religious organizations typically have to follow the same laws as everyone else.
In other words, the Court seems eager to act quickly and break through much of its long-standing religious jurisprudence in a way that hands historic victories to the religious right. So there is no guarantee that this court will… Yeshiva University to undermine previous precedents to protect against discrimination on campus.
But such an outcome is not necessary for Yeshiva to prevail in her lawsuit. According to existing legislation, as established by cases such as: kedroffthe university has a strong legal claim.