YU asks Supreme Court for stay on order to recognize LGBTQ+ student club

YU warned that recognizing an LGBTQ+ student club would cause "irreparable harm" to the Yeshiva, its students and its community.

Department of Communications and Public Affairs, Yeshiva University (photo credit: SCALIGERA/ENGLISH WIKIPEDIA)
Department of Communications and Public Affairs, Yeshiva University
(photo credit: SCALIGERA/ENGLISH WIKIPEDIA)

Yeshiva University filed an emergency application on Monday requesting a stay of an order issued by the New York County Supreme Court in June requiring the university to recognize an LGBTQ+ student club called the YU Pride Alliance.

In June, the New York County Supreme Court ruled that YU needed to recognize the Pride Alliance as an official campus club, as the university is not considered a "religious corporation" and therefore is subject to the New York City Human Rights Law (NYCHRL) which prohibits discrimination on the basis of sexual orientation.

The ruling that the university is not considered a religious corporation, despite it's combination of religious studies with secular studies, was based on a number of reasons, including that YU's own charter defines itself as an "educational corporation" and "exclusively for educational purposes" without mentioning a religious purpose for the institution.

Additionally, a fact sheet prepared by YU in 1995 acknowledged that the university is "subject to the human rights ordinance of the City of New York, which provides protected status to homosexuals. Under this law, YU cannot ban gay student clubs."

An appeal against the decision filed to Supreme Court of the State of New York was rejected on August 23, with the court ordering the university to "immediately recognize" the YU Pride Alliance as an official campus club.

One student told JTA that he witnessed Yeshiva University rabbis tearing down posters advertising an LGBTQ event on campus. (credit: (COURTESY OF YU STUDENT ORGANIZERS))One student told JTA that he witnessed Yeshiva University rabbis tearing down posters advertising an LGBTQ event on campus. (credit: (COURTESY OF YU STUDENT ORGANIZERS))

On Monday, YU filed an emergency request to the US Supreme Court for the order to be stayed pending an appeal, saying that the court decision violated the university's First Amendment rights.

The university asked the court to consider whether the New York City Human Rights Law can override YU's religious judgement, whether under Employment Division v. Smith the Human Rights Law is considered "neutral" and "generally applicable" and whether Employment Division v. Smith should be overruled.

What is Employment Division v. Smith and why is it relevant?

Employment Division v. Smith was a Supreme Court case in which the court considered the question of whether the state of Oregon could deny unemployment benefits to workers who had ingested the hallucinogen peyote as part of a religious ritual at the Native American Church.

The court ruled that while the government could not condition access to unemployment or other benefits on an individual's willingness to go against their religion, this principle did not apply when the conduct in question is justifiably prohibited by law and prohibiting the exercise of religion is not the object of the law, but merely an incidental effect of a generally applicable and otherwise valid law.

"To adopt a true 'compelling interest' requirement for laws that affect religious practice would lead towards anarchy."

Majority opinion in Employment Division v. Smith

"To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling'–permitting him, by virtue of his beliefs, 'to become a law unto himself,'–contradicts both constitutional tradition and common sense. To adopt a true 'compelling interest' requirement for laws that affect religious practice would lead towards anarchy," stated the majority opinion of the court at the time.

In the 2021 case Fulton v. City of Philadelphia, Supreme Court Justices Amy Coney Barrett, Brett Kavanaugh, Samuel Alito, Clarence Thomas and Neil Gorsuch all stated that they supported overturning Employment Division v. Smith.

YU says order to recognize LGBTQ+ student club would cause 'irreparable harm'

In YU's emergency request from the court, the university stressed that it could not comply with the order as it would "violate its sincere religious beliefs about how to form its undergraduate students in Torah values" and that recognizing such a club would cause "irreparable harm" to the Yeshiva, its students and its community.

YU argued that, despite not defining itself as a religious corporation in official documents, the fact that it teaches intense religious studies, focuses on the Jewish faith and has a "deeply religious character as a Jewish university" should allow it to be treated as a religious entity and its decision to reject the YU Pride Alliance should be protected by the First Amendment.

The university called the ruling an "unprecedented intrusion into Yeshiva’s religious beliefs and the religious formation of its students in the Jewish faith" as well as an "indisputably clear violation of Yeshiva’s First Amendment rights."

"If Yeshiva [University] is forced to comply, the infringement of its religious liberty, and injury to its reputation as a bastion of Torah values and flagship Jewish university, will be irreparable," wrote YU, adding that the NYCHRL could place the university to "ongoing, crippling litigation for any of its religious decisions" until it can complete litigation in efforts to gain a court order in its favor.

The YU request also quoted president George Washington's 1790 letter to the Jewish Community in Newport, Rhode Island telling them he hoped that they would continue to enjoy the goodwill of their fellow citizens, such that each could “sit in safety under his own vine and figtree, and there shall be none to make him afraid.”

"Yet when the secular authorities of New York purport to overrule the religious authorities at Yeshiva—and when the civil courts insist the First Amendment has nothing to say about the matter—something has gone terribly wrong. And when those courts also insist upon 'immediate' obedience by religious authorities to civil ones, this Court’s intervention is urgently needed to preserve the status quo and protect Applicants’ religious character, at least until such time as this Court can consider the case on its merits."

YU cites case protecting Nazis' First Amendment rights

The YU request also cited National Socialist Party of Am. v. Village of Skokie as proof that the Supreme Court has the jurisdiction to provide interim protection under the First Amendment. In that case, the court ruled that the complaint of a neo-Nazi group which had been prevented from holding a demonstration in Skokie, Illinois needed to be reviewed immediately by state courts or granted a stay.

The ruling in that case stressed that if a state seeks to impose an injunction on an issue related to First Amendment rights, it needs to provide strict procedural safeguards, including immediate appellate review, or grant a stay of the injunction.

YU stresses it cares deeply for LGBTQ+ students despite court case

"We only ask the government to allow us the freedom to apply the Torah in accordance with our values.”

Ari Berman, President of Yeshiva University

“The Torah guides everything that we do at Yeshiva—from how we educate students to how we run our dining halls to how we organize our campus,” said Ari Berman, president of Yeshiva University, in a press release. "We care deeply for and welcome all of our students, including our LGBTQ+ students, and continue to be engaged in a productive dialogue with our Rabbis, faculty and students on how we apply our Torah values to create an inclusive campus environment. We only ask the government to allow us the freedom to apply the Torah in accordance with our values.”

YU stressed that it welcomes its LGBTQ+ students and provides "extensive support services," as well as banning anti-LGBTQ+ bullying and discrimination.

“When secular authorities try to tell Yeshiva University that it is not religious, you know something has gone terribly wrong.” said Eric Baxter, VP and senior counsel at Becket, the law firm representing YU. “The First Amendment protects Yeshiva’s right to practice its faith. We are asking the Supreme Court to correct this obvious error.”

The Jewish Queer Youth (JQY) movement condemned the emergency request filed by YU, stressing that the university should listen to its students.

"In framing this as a religious emergency that has to be stopped, YU is demonstrating the very homophobia that they claim does not exist on campus," said JQY. "Instead of listening to what the students are actually asking for, a safe space where they can form friendships and community, YU is deliberately confusing queer youth’s need for self-esteem with a non-existent demand for sexual behavior. The long-term trauma proven to be associated with this kind of messaging can lead to an actual emergency."