Yeshiva University has taken a strikingly ambitious nonstop express route to the U.S. Supreme Court. Lynn Kotler, a New York trial judge, ruled that Yeshiva is obliged by the State’s public accommodations anti-discrimination law to give official student-club status to YU Pride Alliance, a student LGBTQ club.
The club’s program indisputably conflicts with traditional Jewish attitudes on gender relations. Yeshiva argued in the state court that the New York law is inapplicable and that if the law were to apply, compelling Yeshiva to violate its religious principles breaches the constitutional protection for the free exercise of religion. The judge ordered that Yeshiva immediately grant the student group official status. Neither she nor any appeals judge in the New York judicial hierarchy accorded Yeshiva’s legal position enough respect to follow customary procedure in cases raising difficult legal and constitutional questions by delaying implementation while the case is winding its way through the appeals process. So Yeshiva raced to the Supreme Court of the United States.
Represented by the Becket Fund—an organization dedicated to battling for religious rights that has won many Supreme Court battles—Yeshiva has asked the court not only to stay Judge Kotler’s order while the New York courts hear and decide Yeshiva’s appeal but to put the case on the Supreme Court’s own calendar for full consideration of Yeshiva’s federal constitutional right. The Becket Fund has reached out for assistance to many authorities and organizations that have submitted religious-rights arguments to the Supreme Court in recent cases. Nine friend-of-the-court briefs were drafted and filed in warp-speed time by law professors and by organizations. They include a brief by the National Jewish Commission on Law and Public Affairs (“COLPA”) on behalf of Jewish groups such as the Orthodox Union. The Archdiocese of New York, the Mormon Church and the Council for Christian Colleges and Universities also supported Yeshiva with friend-of-the-court briefs.
Yeshiva does not condemn or demean students who are LGBTQ. President Dr. Ari Berman has issued a public statement directing “LGBTQ sensitivity” and “absolutely” welcoming and supporting students regardless of their personal sexual orientation. In fact, Yeshiva has permitted the LGBTQ group to meet openly. The students do not allege they are mistreated in any way by Yeshiva other than by the refusal to accord them the full status of an officially sanctioned student club.
Yeshiva’s legal argument is straightforward: New York’s law against gender discrimination may not force an institution committed to religious values to issue a stamp of approval for conduct that violates the institution’s religious commands. Local law cannot override the Free Exercise Clause of the Constitution. That constitutional claim surely has enough substance that a New York court should have delayed the implementation of Kotler’s order while Yeshiva pursues its appeal.
But Yeshiva’s claim extends beyond protecting religious doctrine. May a court direct any private university, whether or not it is guided by religious precept, to confirm and grant official status to ideologies or practices that offend values fundamental to the university? Supreme Court decisions protecting free speech—entirely apart from religious principles—have recognized a private organization’s right to exclude speakers whose message offends the organization’s values.
In 1995, a unanimous Supreme Court declared that the organizers of a St. Patrick’s Day parade in Boston had the constitutional free-speech right to exclude the Irish-American, Gay, Lesbian and Bisexual Group from its parade. Justice Souter, a liberal icon, said in the court’s opinion that the parade organizers had the right “to determine what message their activities convey to the public.” Free speech includes, he said, the right “to propound a particular point of view and that choice is presumed to be beyond the government’s power to control.”
The free-speech right was extended in 2000 in a Supreme Court decision affirming the right of the Boy Scouts of America to discharge an openly gay scout leader. A court majority noted that the Scouts transmitted to the public an “expressive message” secured by the First Amendment. The scout leader’s conduct, said the court, was “inconsistent with the values” that the Scouts were seeking “to instill in its youth members” and “runs afoul of the Scouts’ freedom of expressive association.” Even 22 years ago, the court recognized that public attitudes on gays’ sexual freedom had changed. What the Scouts had condemned was then legally privileged. Nonetheless, the court said, “The First Amendment protects expression, be it of the popular variety or not” because the Constitution secures the “right of those who wish to voice a different view.”
These two rulings by the Supreme Court accord a private university a free-speech right to endorse an ideology, be it secular or religious. Yeshiva’s choice to withhold full student-club status from a group whose program conflicts with values the university instills in its students is secured not only by the constitutional guarantees for the free exercise of religion but also by the First Amendment’s shield for freedom of speech and association. In January 2023, the court will hear an argument in the case of a website designer who refuses to create a design for same-sex weddings on both religious and free-speech grounds. The court has agreed to consider only her free-speech claim. Yeshiva’s case, if the court accepts it, should be heard together with the website designer’s case.
Nathan Lewin is a criminal defense attorney with a Supreme Court practice who has taught at Georgetown, Harvard, University of Chicago, George Washington and Columbia law schools.
Hours after publication of this article, U.S. Supreme Court Justice Sonia Sotomayor granted Yeshiva University a temporary stay of the trial court’s order.
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