Yeshiva University: With dismissal, Supreme Court gave roadmap to block LGBTQ club

After dissenting conservative justices tell school it can continue appeals against its Pride club and will ‘likley win,’ YU president says ‘we will follow their instructions’

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

Illustrative: A Yeshiva University building in New York City, January 13, 2022. (Luke Tress/Times of Israel)
Illustrative: A Yeshiva University building in New York City, January 13, 2022. (Luke Tress/Times of Israel)

NEW YORK — Yeshiva University on Thursday said the US Supreme Court had provided a “roadmap” for blocking an LGBTQ student club, even as the court dismissed the university’s request to intervene in the case.

The flagship Modern Orthodox university in New York City had asked the highest US court to overrule a state court’s demand that the university recognize a campus Pride club.

The Supreme Court said in a 5-4 decision on Wednesday that Yeshiva University needed to exhaust other options for appeals before it would hear the case. The decision means the university must recognize the club, at least for now.

The decision was made on procedural grounds, not the larger religious issues, and the dissenting justices said the university could appeal to the Supreme Court again down the road and would “likely win” in such a scenario.

“The Supreme Court has laid out the roadmap for us to find expedited relief and we will follow their instructions,” university president Rabbi Ari Berman said in a Thursday statement.

The case hinges on whether the university is a secular institution, bound by New York State human rights laws, or a religious institution with beliefs protected by the First Amendment.

The university has attempted to tread a line between welcoming LGBTQ students and refusing to recognize the YU Pride Alliance on religious grounds.

“Every faith-based university in the country has the right to work with its students, including its LGBTQ students, to establish the clubs, places and spaces that fit within its faith tradition,” Berman said. “Yeshiva University simply seeks that same right of self-determination.”

“At the same time, as our commitment to and love for our LGBTQ students are unshakeable, we continue to extend our hand in invitation to work together to create a more inclusive campus life consistent with our Torah values,” he said.

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

The 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 YU Pride Alliance would be contrary to its beliefs. 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 the federal Appellate Division.

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

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 preferred 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.

Yeshiva University, New York. (Wikimedia Commons)

Katie Rosenfeld, a lawyer for YU Pride Alliance, told The Times of Israel that 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 last week, 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.

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.”

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