A Religious License to Discriminate?

Last month, the US Supreme Court took up a case against Yeshiva University (YU) for its refusal to recognize a queer student group on campus. That lawsuit, first filed in New York state court, alleged that YU’s denial of the Pride Alliance amounted to a violation of New York’s state and city human rights ordinances. In response, the university argued that its status as a religious educational organization exempted it from such ordinances under the First Amendment.

As it stands, the case has been sent back to wind its way through the state appeals process. In all likelihood it will find its way back to the Supreme Court, where the ruling will have major implications for religious institutions’ ability to discriminate. In the meantime, the legal proceedings have provoked an outpouring of support for the university from right-wing Christian and Jewish religious freedom advocates, prompted a homophobic and transphobic backlash against students on campus, and renewed the debate about the inclusion of queer Jews in Orthodox spaces.

To answer your questions about the case, its legal implications for first amendment jurisprudence, and the larger context of LGBTQ+ student organizing on YU’s campus, we’ve put together the following explainer for this week’s Jewish Currents email newsletter (subscribe here!).

Why did students file a lawsuit against YU?

Queer students at Yeshiva University, a private Jewish college in New York City, formed a Pride Alliance in 2019, but school administrators repeatedly refused to recognize the club. After years of unsuccessfully meeting with campus leadership, marching, and even filing a federal Title IX complaint, the students filed a lawsuit in 2021 arguing that the university had violated the state human rights ordinance. One of the plaintiffs, Molly Meisels, wrote in The New York Times that their decision to bring the suit came after years of being subject to “ridicule and bullying as a bisexual and nonbinary person advocating for the queer community at Yeshiva.”

Lawyers for the Pride Alliance argue that YU, which accepts non-Jewish students and self-identifies in its charter as a “primarily educational institution,” must comply with New York’s anti-discrimination laws, especially since YU receives public funding from New York in the form of tax-exempt bond financing. Pride Alliance lawyers cite a 1995 memo where YU’s own legal counsel wrote that they “firmly believe that YU would not qualify for a religious exemption” and thus could not ban gay clubs.

In response to the suit, YU claims that the First Amendment’s free exercise clause permits them, as an institution “wholly committed to and guided by Halacha [Jewish law] and Torah values,” to reject the Pride Alliance. Their argument chiefly relies on the “church autonomy doctrine,” a legal principle which holds that religious organizations ought to be able to make certain decisions without state input. In 2021, representatives from YU told Teen Vogue that the lawsuit amounted to “government interference” in how “religious values are applied on campus.”

Where is the case now?

This July, the New York State Supreme Court ruled that YU is primarily an educational institution and therefore must comply with the state’s anti-discirmination laws by recognizing the Pride Alliance. In early August, the school appealed the decision directly to the US Supreme Court, which temporarily stayed (or reaffirmed) the New York Court’s decision that the club would have to be recognized while they assessed the case’s merits.

Days later, the Supreme Court refused to take up the case on procedural grounds, saying the university must first bring their appeal to lower state courts. That opinion—a 5-4 split with conservative justices Alito, Gorsuch, Thomas, and Barrett dissenting—reaffirmed the lower court’s ruling but noted that YU could eventually bring the case back to the Supreme Court after exhausting other legal avenues. The Court’s current conservative majority all but guarantees that it will side with the university and against the students should the case return to its docket. Should the justices rule in YU’s favor, the case would be the latest in the recent spate of SCOTUS decisions siding with religious groups over federal and state anti-discirmination statutes.

What was the university’s response to the latest court ruling?

As first reported by The Forward’s Louis Keene, after the Supreme Court’s ruling, YU President Ari Berman released a statement saying the university would “work with its students, including its LGBTQ students, to establish the clubs, places and spaces that fit within its faith tradition.” The next day, however, Berman suspended all student clubs rather than recognize the Pride Alliance in the interim period while the university appealed the case.

Public response to the campus-wide shutdown was swift: Students and alumni quickly organized an open letter in protest of the university’s move, which at the time of publication has over 1500 signatures. Netanel Zellis-Paley, who graduated from YU in 2018 and helped organize the alumni letter, said it was “heartening to see my peers who are preparing for careers in the rabbinate or in orthodox spaces” sign on to the letter given that “it’s a dangerous position to take” from a career perspective. Several US congresspeople, including Mondaire Jones, Alexandria Ocasio-Cortez, and Carloyn Maloney, weighed in to condemn the university for halting all clubs rather than recognize the Pride Alliance.

After YU announced it would suspend all student clubs, the Pride Alliance offered to suspend their campaign to seek recognition from the university during the next phase of the legal proceedings, so long as other clubs were allowed to resume. In a statement, members wrote: “Y.U. is attempting to hold all of its students hostage while it deploys manipulative legal tactics, all in an effort to avoid treating our club equally.” Pride Alliance lawyer Katie Rosenfeld compared the move to white Southern segregationists’ decision to close public pools rather than allow Black swimmers. On September 21st, YU administrators agreed to the Pride Alliance’s offer and announced that other student groups could resume after the High Holiday break.

Why does this suit matter to queer students at YU?

YU alumni described a campus environment that has long been unsupportive of queer students, despite relative progress in recent years. “When I went [to YU], there were no out students on campus at the college,” said Joshua Gutterman Tranen, who transferred from YU in 2015 after coming out. “There was no infrastructure for queer students to go to, to ask for help.” Joanna Ross-Tash, who graduated from YU’s Stern College in 2013, told Jewish Currents that campus silence around queer identity was never very effective. “Queerness at YU is not new, and has been around forever. What’s being asked for now is support for who we are within this community.”

Moshe Brimm, a gay YU alumni who graduated in 2017 and has written publicly about his struggles with the school’s enforced heteronormativity, says the university’s latest actions to stymie the Pride Alliance have been “embarassing.” Queer students on campus, Brimm said, are “trying to belong, trying to feel safe. They’re not asking YU to preach homosexuality or to change their religious doctrine, they’re asking for a place of safety and acceptance and embrace.”

The importance of a queer student club has become especially apparent in light of the increasingly hostile campus environment for queer students in recent weeks. “It felt like things were getting easier, and students were coming out to me while at YU instead of after graduating,” said a professor at YU’s undergraduate campus who has unofficially counseled many queer students over the last few years and spoke on condition of anonymity in order to avoid backlash from the university. But the campus climate worsened this fall, as rabbinical authorities as well as some alumni and current students began publicly arguing in school newspapers and open letters that queer students are “glorifying a defiance of Torah,” promoting a “lifestyle” whose supression been “divinely mandated,” and unjustly “drag[ing] our Yeshiva into the secular courts . . . a power that does not understand our values nor cares for our Jewish future.” “The past month has been whiplash with the overt homophobia that’s been unleashed,” said the professor.

How is the broader YU community responding to the university’s attack on queer students?

Amidst the university’s crackdown on the Pride Alliance, Jillian Weinberg, a PsyD student in psychology, said the graduate schools have been more supportive of queer student organizing since university president Berman has made clear that policies for the undergrads do not apply to graduate students. “Our school is supporting the YU Pride Alliance through our student representatives and LGBTQ affinity group, offering them services at our clinic and room for collaboration between pride groups,” Weinberg said. But despite these efforts, many queer undergraduates at YU still feel unsafe. Both professors and current students told Jewish Currents that many undergrads, including some in the Pride Alliance, are still not out publicly.

Letters of support for LGBTQ students also poured in from YU’s graduate programs in psychiatry & behavioral services, medicine, psychology, and law. An additional open letter signed by more than 90 professors in various YU programs decried the university’s actions for “hav[ing] caused LGBTQ+ members of our broader college community to feel deeply vulnerable in an institution of higher learning that should be a safe academic home for them.”

The undergraduate professor who has counseled queer students described a swell of faculty support for the Pride Alliance in recent weeks. “I’ve never seen faculty mobilize so quickly,” they said. Still, a pervasive climate of fear discourages many professors at YU from speaking up. “We’re a tiny faculty, and we have very little power,” the professor said, adding that “it’s unlikely that anybody in undergrad schools would have organized anything if they weren’t tenured.”

What groups are backing YU in this case, and why?

The YU case provides an ideal opportunity for right-wing groups to continue their fight against what they see as secular encroachment on religious autonomy. The Becket Fund, the legal nonprofit representing YU, is a key player in the national fight to expand religious exemptions to anti-discrimination laws. Becket has been very successful in this effort: They won recent Supreme Court cases ensuring that Catholic Social Services in Philadelphia could refuse to allow gay parents to adopt children, and that Hobby Lobby could opt out of providing contraception under the Affordable Care Act.

Although they represent clients from a range of religious persuasions, from incarcerated Muslims who want to grow beards while in prison to a Santeria priest hoping to sacrifice goats in his home, Becket is well-connected to and supported by right-wing politicians like former Attorney General William Barr, who served as chair of Becket’s board for over a decade, and philanthropic institutions like DonorsTrust, a group the Koch Brothers regularly use to funnel money to their chosen causes. YU’s own appeal to the Supreme Court received supportive amicus briefs from a laundry list of Christian groups such as the Archdiocese of New York, Council for Christian Colleges & Universities, and the Association for Classical Christian Schools.

Paul Southwick, a lawyer who founded the Religious Exemption Accountability Project to litigate on behalf of queer students and faculty facing discrimination at religious instiutions, noted that Becket’s approach is a part of a legal strategy that dates to the 1960s. “This concept of religious exemption to civil rights law was a direct response to Brown v. Board and the Civil Rights Act of 1964, when hundreds of schools in the South discriminated against Black students because of ‘sincerely held’ religious beliefs,” Southwick told me. In 1983, the Supreme Court held in Bob Jones University v. US that tax-exempt 501c3 organizations could not practice overt racial discrimination. The court, Southwick explained, said “you can practice racist beliefs for your religion but you don’t get public funding to do so.”

What are the legal implications if SCOTUS does take up this case?

As evident in SCOTUS’s rulings from the last several years allowing Catholic Charities to refuse to let gay parents adopt and permitting a Colorado baker to object to bake a cake for a gay wedding, religious freedom is increasingly turning into a license to discriminate. Rachel Laser, president and CEO of Americans United for the Separation of Church and State, pointed out that in such cases, “religion is being used to advance a conservative, racist agenda” spanning “attacks on abortion, anti-racist education, and voting rights.”

Southwick said that if the Supreme Court does eventually take up the YU case, he fears it may rule not only to expand religious exemptions but also to limit the power of the federal government to enforce anti-discrimination laws. Such a decision would be consistent with the current court’s “hostility to any accountability for religious institutions causing harm with government money,” he said.

Laser said that first amendment claims about religious autonomy to discriminate against LGBTQ students and parents are just the tip of the iceberg. “Religious extremists are targeting queer people in particular,” Laser told me, “but ultimately everyone is under attack. When you undermine church state separation, no one is safe except those who hold the most power.” Southwick agreed that the implications of the case go beyond religious freedom in education, especially since the government has increasingly subcontracted basic services like healthcare, education, soup kitchens, and homeless shelters to religious organizations. The broader question at stake in the YU case, then, is: “are these quasi-governmental agents with public money allowed to discriminate based on sincerely held religious beliefs?”