Yeshiva University turns to SCOTUS to avoid recognizing LGBTQ club

Yeshiva University (YU) filed an “emergency request” with U.S. Supreme Court Justice Sonia Sotomayor on August 29, asking her to suspend the June 24 injunction of the Justice of New York Supreme Court Lynn R. Kotler requiring YU to officially recognize YU Pride Alliance “immediately”. Comply with New York City Human Rights Law. Judge Sotomayor, who is responsible for processing claims from states in the Second Federal Circuit, which includes New York, has requested a response from YU Pride Alliance by September 2.

YU’s law and medical schools both officially recognize LGBTQ student groups, but the university has refused repeated requests since 2009 to recognize such an organization for undergraduates. YU maintains that “as the world’s first Torah-based institution of higher education”, it has the First Amendment right to determine all aspects of campus life without government interference, under the doctrine of “church autonomy” which was mentioned by the United States. Supreme Court in various cases.

Judge Kotler, while acknowledging the religious nature of the University, based her decision that YU is not an exempt religious society on past statements by YU in various contexts where she pointed to its status as an institution of teaching and that she was subject to New York City Human Rights Law. YU is incorporated under the Education Act, not the Religious Societies Act, and the judge noted that many divisions of YU are dedicated to secular areas such as law or medicine and that they therefore do not seem to fit the narrow definition of a “religious society”. provided for in the law on religious societies.

The judge observed that in contacting a state legislator in 2021 to request funding for capital construction, YU presented himself as a “501[c][3] not-for-profit institution of higher education”, and not as a religious society. She also noted that Yeshiva released a “fact sheet” explaining its decision to allow LGBTQ student organizations in its vocational schools, in which it affirmatively stated that it was obligated to comply with the law on Human Rights Council and that its recognition of the groups should not be construed as an endorsement by YU of these organizations’ views on homosexuality.

She could also have cited a 2001 decision, Levin v. Yeshiva University that a lesbian YU medical school student could sue for housing discrimination under the New York City Human Rights Act when the university refused to the student and to herself. -sex partner lives together in his “married student housing” dormitory.

“The Yeshiva is either a religious society in all respects or it is not,” Judge Kotler wrote.

YU immediately filed a motion seeking a stay of Judge Kotler’s injunction, pending YU’s appeal. The Appeals Division denied that motion last week. YU then immediately filed a motion for leave to appeal the denial of the stay to the Court of Appeals, New York’s highest court, which quickly dismissed it without explanation.

In his “urgent request”, YU implicitly asked Judge Sotomayor to refer his request to the entire Supreme Court requesting that the case not only be stayed, but that this request be treated as a request for that the Supreme Court grant a review of Justice Kotler’s decision. decision without waiting for the state’s appeal process to take place, though YU noted that it has filed an appeal on the merits with the Appeals Division, which is expected to hear arguments this fall.

YU’s urgency is explained by its own academic calendar. The fall semester has already begun in the undergraduate school, and the application period to recognize new student clubs ends on September 11. Assuming YU Pride Alliance has sought recognition, the university may face the possibility of a contempt action if it does not YU Pride Alliance by that date and the injunction is not stayed.

Most of YU’s application is devoted to proving YU’s religious character, emphasizing that all undergraduates are required to take religious courses, that strict observance of Jewish religious ritual law is maintained on campus. and that YU application materials emphasize these characteristics of campus life so applicants understand that they are applying to a religious school. The request cites the plaintiffs as having sought recognition in order to change campus practices regarding LGBTQ issues, and points out that all of these practices are based on religion, noting that the decision to deny the group recognition was made in consultation with rabbinical authorities. of the University.

The petition also asks the court to consider overturning its 1990 precedent, Division of Employment v. Smith, under which individuals cannot seek a constitutional exemption from free exercise to comply with neutral laws of general application. on a religious level. Judge Kotler had dismissed YU’s request for free exercise based on this decision. YU argues that the public accommodations provision of the New York City Human Rights Act is not a law of “general application” because it contains categorical exemptions for “markedly private” clubs. ” and “benevolent orders”, and also authorizes the Commission on Human Rights to recognize individual exemptions. for reasons of “public order”.

YU points out that the Supreme Court’s decision in Fulton v. City of Philadelphia held that the Smith precedent did not apply in that case because Philadelphia’s contract with a Catholic foster care agency specified that the city reserved the discretion to waive the anti-discrimination provisions of the contract. YU also noted that at least three Supreme Court justices have indicated an interest in “revisiting” the Smith precedent, and that lower courts have been divided in their interpretation of Fulton’s analysis of the issue of “the general applicability”, creating a need for clarification. of the court. Thus, YU argued that it was highly likely that its request for a review of Judge Kotler’s decision would be granted by the court.

YU is represented by the Becket Fund for Religious Liberty, a Washington, DC-based Christian litigation group that strongly opposes the application of anti-discrimination laws to religious organizations. YU Pride Alliance is represented by Emery Celli Brinckerhoff Abady Ward & Maazel LLP, a New York law firm.

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