Are Jewish Colleges Illegal in New York City?

A re Jewish colleges illegal in New York City? One New York court’s ruling threatens to make that the law. The highest court in the state has refused to step in. On Monday, attorneys for Yeshiva University filed for emergency relief from the United States Supreme Court. The Court could rule any day on the application in Yeshiva University v. YU Pride Alliance. If it goes beyond ordering a temporary stay of the court order and takes the case to decide its merits, it could reach yet another momentous decision on religious liberty in the United States.

At issue, as has so often been the case since 2015’s decision in Obergefell v. Hodges, is whether religious believers will be forced to change the millennia-old tenets of their faith in order to accommodate 21st-century LBGTQIA+ ideology. Specifically, the YU Pride Alliance, a gay group, filed a lawsuit against Yeshiva University to be recognized as an official campus group for the first time. The university, after consulting with its senior rabbis, concluded that extending formal approval to a gay group would be inconsistent with its religious beliefs.

This is not some isolated, pretextual decision: As Yeshiva’s filings indicate, it is a pervasively religious college that imposes a great many requirements on its students, and on approval of student organizations, with the goal of forming them in the Jewish faith. It has refused to allow fraternities or student clubs involving shooting, video games, or gambling. As Yeshiva’s petition to the Supreme Court explains:

All Yeshiva undergraduate students are required to engage in intense religious studies, with many receiving up to four and a half hours of Talmud instruction each day. And the entire undergraduate experience is designed to form students in the Jewish faith: the laws of Shabbat and Kashrut are strictly observed on campus; there are separate men’s and women’s campuses; students are expected to dress and behave consistently with Torah values; the campuses are adorned with religious imagery and symbolism; and the affiliated Rabbi Isaac Elchanan Theological Seminary is integrated into the men’s undergraduate campus and programs. . . . All undergraduates are strongly encouraged to begin their Yeshiva experience with intensive religious studies in Israel, with over 80% doing so for university credit. . . . Yeshiva students living on campus . . . agree “to live in accordance with halachic [Jewish law] norms and Torah ideals.”

The YU Pride Alliance made explicit in its lawsuit that it was not merely seeking equal access to buildings on campus for internal meetings: Its openly professed goal was to use the imprimatur of Yeshiva approval to proselytize an argument for changing the school’s Torah-based religious doctrine on homosexuality. A sworn statement declared, as Yeshiva’s brief puts it, “that they are already actively planning Pride Alliance events for the fall 2022 semester, including plans to host school-sponsored LGBTQ ‘shabbatons’; prepare school-sponsored LGBTQ-themed Shalach manos (ritual packages for the Purim holiday); and make school-sponsored ‘Pride Pesach’ packages to celebrate Passover,” all with the intent to leverage Yeshiva’s religious prestige in order to “send a clear message” to the Jewish community at large for their own view of how Torah regards homosexuality.

Nonetheless, New York trial judge Lynn Kotler, an elected Democrat, ruled that Yeshiva is not a “religious corporation” within the meaning of the New York City Human Rights Law (NYCHRL), and that Yeshiva’s rights of free exercise of religion and free speech were not violated by compelling it to violate its own religious beliefs. (There is no Religious Freedom Restoration Act issue in the case because the Supreme Court struck down the law’s application to the states in 1997, and New York does not have a state-level RFRA.)

Judge Kotler applied a mechanistic and blinkered application of the “religious corporation” exception to the city’s Human Rights Law. That ruling is debatable at best as a matter of New York law. Judge Kotler declined to follow a decision by the state’s highest court finding that St. John’s University “has not abandoned its religious heritage,” arguing that the religious exception in the NYCHRL is narrower than the exception in the New York State Human Rights Law, which was at issue in the St. John’s case. Even if she is right about that, it illustrates that the NYCHRL is not — as she claims — adequate to protect the religious liberty of Yeshiva.

Judge Kotler ruled that Yeshiva is not really a religious, rather than an educational, institution. She relied on the fact that the university had changed its charter in 1967 to declare an educational primary purpose and that it now offers degrees in many secular subjects. She also decided that the university’s religious argument was compromised because some faculty dissented from the decision and because the university since the 1990s had permitted such groups in its schools of law and medicine, albeit with the acknowledgement at the time that “They do not proselytize” (emphasis in original) — exactly what YU Pride Alliance aims to do.

This is, on both grounds, an unreasonably crabbed view of what it means to be a religious believer or a religious institution. While Yeshiva trains rabbis, it also trains a great many other students who will have to earn their living in the wider world — as businesspeople, doctors, dentists, lawyers, scientists, social workers, teachers, and all manner of other occupations. No religion can long survive if it is permitted to train only ministers in the faith. The university’s greater willingness to compromise the purity of its religious message in its law and medical schools is, likewise, a real-world acknowledgement that graduate and professional schools aren’t colleges: They cater to students who have reached full adulthood and may, in many cases, be married people in their 30s with significant work experience who have likely already set themselves on their faith journey. As for the fact that some faculty disagreed with the decision, one must ask if the judge has ever met any university faculty, any religious believers, or any Jews. If religious authorities may require their believers to follow only those doctrines that nobody disputes, that would swiftly be the end of all forms of religious authority.

Yeshiva’s lawyers, in their request for the Supreme Court to enjoin Judge Kotler’s decision before the school year starts, rather pointedly cited the Court’s 1977 decision to grant emergency relief to protect the American Nazi Party’s march in the Jewish community of Skokie, Ill. Does a Jewish college have the same right to promote its own message as the Nazis? If the St. Patrick’s Day Parade can exclude a gay group that would dilute its message, why can’t a Jewish college? Can such a college even remain Jewish, in the religious sense, if it cannot control what religious message it sends to the young adults who come to Yeshiva seeking to prepare for a life in their faith?

Judge Kotler’s decision puts to the Court three deeper questions of doctrine arising from the Court’s 1990 decision in Employment Division v. Smith, which held that there is no First Amendment protection for religious exercise when the government aims to enforce “generally applicable” laws rather than discriminate against religious practice.

First, the Court has recognized a “ministerial exception” to Smith that exempts religious institutions from generally applicable laws when enforcing them would intrude into the hiring and training of clergy and other religious instructors. That exception was most recently applied by the Court in Our Lady of Guadalupe School v. Morrissey-Berru (2020) to the hiring and firing of Catholic schoolteachers, whether or not they are solely employed as religion teachers. The theory of this exception is, as I wrote when Guadalupe was decided, is that, “If the government can decide who the ministers are, it runs the church.” The flip side of the ministerial exception is that the state, which the Court has increasingly required to provide benefits to religious institutions on an equal basis with secular institutions, is not required to provide such benefits to the training of clergy or other religious instructors. The ministerial exception isn’t directly at issue in Yeshiva, but Guadalupe is cited repeatedly in Yeshiva’s brief because the exception reflects the particular importance of the role of religious instruction and leadership in the First Amendment context.

Second, the courts since Smith have been divided — without entirely definitive guidance from the Supreme Court — on what sort of individualized exceptions to a rule cause a rule to no longer be “generally applicable.” That was part of a vigorous debate by the Court in Fulton v. City of Philadelphia (2021). Yeshiva argues that the NYCHRL’s exceptions remove it from Smith, and that the Court needs to resolve splits in the lower courts on this question.

Third, should the Court overrule Smith as unworkable, inconsistent with prior precedent, and out of step with the original understanding of the First Amendment? That would be an ironic fate for an opinion by Justice Antonin Scalia. There are already three votes on the Court to do so, and Justices Brett Kavanaugh and Amy Coney Barrett indicated in Fulton that they were not closing the door to doing so, although they had concerns about what regime might replace Smith. Yeshiva explicitly asks the Court to take the case in order to overturn Smith. If it does take the case, expect a major battle over whether to do so.

Finally, of course, religious free-exercise cases have often, in recent years, ended up being decided as free-speech cases instead. That is likely to be the case in the 303 Creative case before the Court this term on when a religious website designer can be compelled to work for same-sex weddings.

There is plenty here for the Court to resolve, but if it turns away Yeshiva’s application, it will be the end of the right of religious Jews to operate a college in New York City that reflects their faith and passes it to the next generation.