Yeshiva University’s Emergency Application Raises First Amendment, Not State Law, Issues

I’m following up on my post on Monday highlighting Yeshiva University’s emergency application to the Supreme Court seeking relief from an injunction that would require it to approve an undergraduate LGBTQ club.

The Supreme Court has invited the parties opposing Yeshiva’s application to file their response by the end of Friday. In the meantime, I’ve encountered some claims that the history of Yeshiva’s charter “as an educational institution” makes the legal issues before the Court much more complicated than my initial post would indicate. I would like to explain here why that is not so.

It’s important to have in mind what is, and what is not, before the Court. Specifically, it is essential to distinguish the federal constitutional matters that Yeshiva’s application raises from the state-law question that Yeshiva is properly not asking the Court to address. It is only that state-law question that arguably implicates the history of Yeshiva’s charter.

The trial court that issued the injunction against Yeshiva devoted most of its ruling to the question whether Yeshiva qualifies for an exemption under the New York City Human Rights Law as a “religious corporation incorporated under the education law.” (I refer to this as a state-law question to distinguish it from a question of federal law. New York City is an instrumentality of the state of New York, and the distinction between municipal law and statewide law is irrelevant for my purposes.) It is in that context that the trial court addressed Yeshiva’s amendment to its charter in 1967 as well as various other aspects of Yeshiva’s history.

Yeshiva will challenge the trial-court’s ruling on state law in its appeal through the state-court system. But the Supreme Court sits only as an arbiter of federal law, including whether state law and state-court rulings comply with the federal Constitution. Thus, Yeshiva in its emergency application to the Court does not and cannot ask the Court to override the state trial court on whether Yeshiva is subject to the NYCHRL. It instead predicates its request for relief on its arguments that the trial court’s injunction violates Yeshiva’s religious-liberty rights under the First Amendment.

The trial court acknowledged that Yeshiva argued that requiring it to approve an undergraduate LGBTQ club “violate[s] Yeshiva’s religious autonomy” (as well as “the Free Exercise Clause, the Free Speech Clause and the Assembly Clause”). But the trial court failed to address that argument at all. In an amicus brief that he has filed in support of Yeshiva’s emergency application, religion-law scholar Douglas Laycock explains the principles that animate the doctrine of religious autonomy. As he aptly puts it:

The trial court disregarded all these principles in requiring—without any analysis of religious autonomy—Yeshiva to give its official sanction to a group that contradicts and openly attacks its religious beliefs. That disregard is a fundamental error.

Indeed, Yeshiva’s religious-autonomy argument is all the more compelling precisely because the trial court read the religious-corporation exemption under the NYCHRL to exclude educational institutions. As Laycock points out, and as the Court’s recent cases (e.g., Our Lady of Guadalupe School v. Morrissey-Berru (2020) and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012)) attest, the doctrine of religious autonomy applies with full force to religious schools. That doctrine requires courts to “give proper deference to the religious institution’s explanation of its own beliefs and the relevance of those beliefs to any internal decisions at issue.”

In any case, the supposedly complicating facts about Yeshiva’s religiosity are pedestrian. For example, the trial court held that Yeshiva is not religious because it offers too many degrees in secular subjects. But by that reasoning, only theological seminaries would enjoy First Amendment protection. Catholic University, Wheaton College, and BYU would be out, to name a few.

The reality is that even the plaintiffs have openly acknowledged Yeshiva’s religiosity—with the court in an earlier ruling having found that the “plaintiffs concede Yeshiva’s deeply religious character in their pleadings.” Indeed, the trial court itself acknowledged that “There is no doubt that Yeshiva has an inherent and integral religious character which defines it and sets it apart from other schools and universities of higher education.” That means that, regardless of whether Yeshiva is exempt under New York law, it is entitled to the full protection of the First Amendment and the doctrine of religious autonomy.