A New York Court Denies Yeshiva University Its Religious Freedom

L GBTQ issues are some of the most controversial and divisive in the country. They touch on difficult questions, generating passionate views on both sides. Accordingly, we should cultivate a space where such issues can be appropriately reconciled through honest persuasion. We should not, however, use the heavy hand of government to force religious institutions into violating their collective conscience.

That is exactly what occurred on Tuesday in a court case involving my school, Yeshiva University. YU, an Orthodox Jewish university in New York City, is the flagship institution of American Modern Orthodoxy, a religious ideology that seeks to meld the richness of Jewish tradition with modern advances in science, technology, and general knowledge. To me and many other American Jews, YU represents the remarkable nature of the Jewish experience in the United States, a country that has allowed us to participate in public life while representing our faith proudly. But YU’s right to act according to its deeply held religious beliefs took a blow when a New York judge issued an injunction forcing the school to recognize an LGBTQ club on campus.

Jewish law generally prohibits homosexual behavior, and while YU admits gay students, it repeatedly resisted calls to approve an LGBTQ student club, explaining that it could not do so while remaining faithful to Orthodox Jewish tradition. Whether you agree with this decision or not, using the government to force religious institutions into performing actions that violate their conscience does no good for society. On the contrary, it only deepens enmity and division. I worry that Tuesday’s decision paints a concerning picture for the future of religious liberty.

The case had been pending since April 2021, when the YU Pride Alliance sued the university, alleging illegal discrimination under New York City Human Rights Law (NYCHRL). Indeed, NYCHRL prohibits discrimination on the basis of sexual orientation, but specifically exempts “a religious corporation incorporated under the education law.” It is immediately apparent from the moment one steps foot on campus that YU is a “religious corporation.” Pictures of rabbis are plastered on every wall and elevator door. Study halls are filled with eager men and women who spend many hours each day probing the depths of the Bible and Talmud. Walk into any YU building at around 8:00 a.m., and you’ll find at least ten men gathered together to pray, donning their tefillin (ritual phylacteries) as God commanded. These men are religious. Their institution is religious. Any insinuation to the contrary is not merely false, but an insult to the life they live. And yet, in the view of Judge Lynne Kotler of the New York County Supreme Court, because YU confers “secular” degrees, it cannot be a religious corporation:

The court finds that Yeshiva’s educational function, evidenced by its ability to now confer many secular multi­ disciplinary degrees, thus became Yeshiva’s primary purpose. Even if Yeshiva still “promote[d] the study of Talmud,” that does not necessarily make Yeshiva a religious corporation.

Kotler’s opinion later adds that “the purpose students attend Yeshiva is to obtain an education, not for religious worship or some other function which is religious at its core. Thus, religion is necessarily secondary to education at Yeshiva.” This fundamentally misunderstands the nature of religious practice by incorrectly assuming that educational and religious purposes are mutually exclusive. Applied broadly, Kotler’s logic would suggest that any institution that confers any sort of educational degree is by its nature not religious. Religious Americans could worship freely, but the minute they sought to educate their children, they’d have to check their faith at the door.

Kotler, who is referenced as a member of the Lesbian and Gay Law Association for Greater New York in a 2011 profile, has wiped away YU’s centuries-long religious heritage in a single ruling. What’s more, she has harmed those she intends to help. No doubt, her ruling will cause considerable controversy on campus, and I fear that the chasm between gay and straight students will only widen.

The pain of LGBTQ individuals in religious universities should not be minimized. It warrants a nuanced conversation about mechanisms of needed support. The courts, however, are not the appropriate venue for that conversation. If Judge Kotler thinks that she can use the judiciary to force a community of Orthodox Jews to change their religious beliefs, she is surely mistaken. No one is going to abandon deeply held religious convictions because a judge orders them to. Instead, they will take action, and many of them will inevitably overstep in doing so. I fear that gay students will pay the price.

As it should, YU has already announced that it will appeal Kotler’s decision. It is represented by the Becket Fund for Religious Liberty, a nationally recognized law firm dedicated to free-exercise litigation. Becket will surely fight on appeal for recognition of the obvious: Yeshiva University is a religious institution, its students and faculty constitute a religious community, and its practices constitute the application of a Jewish tradition that is thousands of years old.

In his letter to the Jews of Newport, R.I., George Washington wrote “may the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.” Invoking the verse from Micah, he described a republic in which Jews would be free to associate as they wish, gather as they wish, and educate their children as they wish. Judge Kotler just cut down the fig tree. It is up to someone else to replant it.