In the spring, I was in the process of completing an extensive research paper on the use of crowdsource funding by the 2022 Freedom Convoy. In discussions with my research supervisor, one topic that came up was that whatever restrictions we felt should be imposed on the use of crowdsource funding for something we opposed, i.e. illegally blockading border crossings to protest Covid-19 protocols, would also be applied to movements that used similar tactics, but for causes, we believed in. In discussions with him, it was easy to say, “yes, of course, just because I agree with something doesn’t mean it should be treated differently if the fundamental law-breaking is the same”. It was easy to make that statement because, at the time, nothing had challenged it. And then, the YU Pride Alliance filed a discrimination lawsuit against Yeshiva University (“YU”).
Upon reading reports of the ongoing litigation, I thought everyone knows that YU is a religious university, even if it is not a yeshiva in the traditional sense. There are many other schools to go to, and if you have chosen to study there, you need to accept that it is a school committed to the principles of orthodox Judaism. The situation seemed somewhat akin to the conflicts with Women of the Wall in Israel, who often appear to be engaged in deliberately provocative activities. And then I remembered that YU is not a traditional yeshiva - a place where students go for a few years to study Torah and other Jewish religious texts. It’s a university with full undergraduate and graduate programs. I have been part of Jewish studies classes with students from their law school who are there because it’s a good school. While there are mezuzahs on the doors of all the dorm rooms, and orthodox Judaism, including prayer, is an integral part of daily life, they also have an NCAA basketball team.
The case is surprisingly reminiscent of a case students in Canada learn during their first-year constitutional law course. In 2018, the Supreme Court of Canada decided the Law Society of British Columbia v Trinity Western University case. Trinity Western is a small, evangelical university in British Columbia that wanted to open a law school. The Law Society of British Columbia refused the application because Trinity Western requires students to sign a covenant promising not to engage in sexual intimacy that violates the sanctity of marriage between a man and a woman. The Law Society and Supreme Court have better understood this as a covenant not to engage in homosexual activity while a student at the university. The Supreme Court upheld the decision of the Law Society on the basis that allowing Trinity Western to have a law school would effectively create law school seats that are not open to LGBTQ+ students. The denial of the law school constituted a reasonable restriction on Trinity Western’s freedom of religion per the Supreme Court. Beyond being a Canadian decision, there is an essential difference between the circumstances of the Trinity Western case and the current litigation at YU. The Supreme Court did not say Trinity Western had to do away with the covenant altogether. And on a certain level, this makes sense. Law school seats are far more limited than undergrad seats, so it is much more reasonable to say that a student could select a different university for undergrad than law school. Whether this is fair is, of course, more complicated. Should students who want to study in religious environments be restricted from doing so or restricted from being their whole selves while they do so? How should this be balanced with the freedom of religion of the institution and other students who have chosen to work and study in that environment?
The litigation between YU and the YU Pride Alliance is predicated on Title 8 of the New York City Administrative Code, which prohibits businesses, with some exceptions, from discriminating in providing services based on sexual orientation. While religious orders and distinctly private clubs have been held to be exempt from the law, no such exemption has, to date, been applied to a university.
YU is not a yeshiva. Specifically, in 1967, they changed their charter to remove any express reference to a religious purpose to continue qualifying for specific government funding programs, which at the time excluded religious institutions. However, in 2021, the Supreme Court ruled in Carson v Makin that the exclusion of religious institutions from government funding was a form of unconstitutional religious discrimination; YU has not amended its charter to include specific religious content once again. The lower court ruled that because of the charter's content, YU is not a religious institution that would be entitled to an exemption under Title 8. If YU were to amend its charter based on the Carson v Makin decision, this could impact the litigation and the relationship between YU and its students.
YU has also asserted a claim that they should be exempt from Title 8 under the First Amendment of the Constitution because the law infringes on their religious liberty. On the grounds set out in these claims, they have sought emergency relief from the Supreme Court.
As we await a ruling from the Supreme Court on whether they will grant emergency relief or require YU to continue appealing its way through the lower courts, there are numerous legal and social issues that this case leaves us pondering.
One of the most interesting questions to me is that of floodgates. This is an issue that arises in any situation that will create an exemption to a piece of legislation. If the Supreme Court grants YU a stay or if there is an eventual ruling that they are a religious institution entitled to an exemption, what could it open the door to? As it currently stands, orthodox synagogues have a Constitutional exemption to reject all female rabbinical candidates without being held religious discrimination. Depending on how YU interprets orthodox Judaism and how other religious universities interpret their religious doctrines, a ruling in favour of YU could have a snowball effect that restricts a more significant number of students and student organizations at these institutions. While this may be a reach from the immediate facts of the YU Pride Alliance’s lawsuit, it is a consideration any time the court is contemplating creating new law, something they are often hesitant to do. Much like how the decision in Carson v Makin has the tertiary effect of enabling YU to change its charter to include, once again, specific religious references, any decision, in this case, would impact the rights of other institutions. This needs to be taken into consideration so that it does not result in a circumstance of bad facts or strange facts making bad law.
This case is uncomfortable, especially as a progressive observant Jew. I don’t want to acknowledge or admit that factions of my community oppose an individual’s right to love who they love. I don’t want to think that there are spaces in my religious community where individuals feel alienated, uncomfortable, or unsafe to express their true selves. I wish that this wasn’t even a conversation that needed to be had. And by the same token, I understand the arguments of YU and their commitment to observing orthodox Judaism and defending their right to do so. I know they, too, have a right to feel comfortable in their religious observance and are entitled to interpret parts of Jewish religious texts dealing with sexuality differently than I would. The outcome of this case, whenever it comes, will likely involve more uncomfortable but necessary conversations about how our Jewish community addresses issues related to other minorities among us.