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US Supreme Court decision says Yeshiva University must recognize LGBTQ club

Justices say in 5-4 opinion that flagship Modern Orthodox university in New York must exhaust other appeals before turning to nation’s highest court

Luke Tress is an editor and a reporter in New York for The Times of Israel.

An American flag waves in front of the US Supreme Court building, Monday, June 27, 2022, in Washington. (AP/Patrick Semansky)
An American flag waves in front of the US Supreme Court building, Monday, June 27, 2022, in Washington. (AP/Patrick Semansky)

NEW YORK — Yeshiva University in New York City will be required to recognize an LGBTQ student club, at least temporarily, after the US Supreme Court on Wednesday denied the university’s request to intervene in the case.

The Supreme Court justices decided 5-4 against the university’s request to block a lower court’s ruling that demanded it recognize the club and treat it as other student clubs. The case is being appealed in lower courts and could still be reversed, or return to the Supreme Court.

The flagship Modern Orthodox university appealed to the court late last month, citing its rights under the First Amendment, which protects the free exercise of religion. The university argued that recognizing the LGBTQ Pride Alliance Club would be contrary to its beliefs. The dispute centers on whether the university is a religious institution, or a secular one.

Recognition would grant the Pride club funding and other benefits.

A New York state judge in June ruled the school must recognize the group, a decision that the university is appealing in the state court system. The Supreme Court said the university needed to exhaust its other options for reversing the decision before coming before the nation’s highest court.

“The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief,” the court said. The university can continue to appeal in New York courts or file an appeal with federal Appellate Division.

If both those efforts fail, the university “may return to this court,” the justices wrote.

Yeshiva University, New York. (Wikimedia Commons)

The opinion was based on procedural grounds, not on the larger issue of religion.

The conservative Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett dissented. Justices John G. Roberts, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh were in the majority. Roberts and Kavanaugh are conservatives.

The dissenting justices sided with Yeshiva University, saying, “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 preffered interpretation of Holy Scripture. Yet that is exactly what New York has done in this case.”

“Yeshiva would likely win if its case came before us,” they said. The court has a conservative majority that has previously ruled in favor of religious groups.

Katie Rosenfeld, a lawyer for the YU Pride Alliance, said Wednesday’s decision was a “victory for Yeshiva University students who are simply seeking basic rights that are uncontested at peer universities.”

“We are confident that we will continue to overcome the administration’s aggressive litigation strategies against its own LGBTQ+ students,” she said. “At the end of the day, Yeshiva University students will have a club for peer support this year, and the sky is not going to fall down. No longer will students be denied a safe and supportive space on campus to be together.”

The Jewish Queer Youth advocacy group said the Supreme Court decision was “a turning point for LGBTQ Jews in the Orthodox community who, for too long, have been told that their identities are not a sin, yet made to feel like their self-worth is against Jewish law.”

Sotomayor had granted Yeshiva University an emergency request on Friday, while the justices weighed the case, that had temporarily blocked the lower court’s ruling. Wednesday’s ruling vacated that decision.

In 2020, a group of LGBTQ student activists accused the university of discrimination in a complaint to the city’s Commission on Human Rights, then sued the university last year.

A poster advertises an LGBTQ event at Yeshiva University, Dec. 15, 2020. (Courtesy of Yeshiva University student organizers)

In June, NY Judge Lynn Kotler said that the university is chartered as a non-religious organization and is therefore subject to the city’s human rights law barring discrimination based on sexual orientation. The court also said the university offers too many secular degrees to qualify for religious exemptions.

Gay sex and same-sex marriage are generally forbidden in Orthodox Judaism.

The university argues it is a religious institution that requires all undergraduates to “engage in intense religious studies” and adheres to Jewish law on campus.

In its emergency appeal to the Supreme Court last week, the university said it was seeking action “to conduct its internal affairs in accordance with its religious beliefs.”

“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,” the request to the Supreme Court said.

The university said in the statement that the lower court’s ruling “would force Yeshiva to put its stamp of approval on a club and activities that are inconsistent with the school’s Torah values and the religious environment it seeks to maintain.”

Jewish Queer Youth said the university was “demonstrating the very homophobia that they claim does not exist on campus.”

“Instead of listening to what they 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 group said.

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