The question of whether America’s oldest Jewish university must recognize an LGBTQ club is now heading to the Supreme Court.

New York City-based Yeshiva University filed an emergency request on Monday to stay a lower court ruling that it must immediately endorse the YU Pride Alliance student club. In June, the New York County Supreme Court ruled in favor of the students, stating that Yeshiva University does not qualify as a “religious institution.” The court pointed to organizational documents in which the university states that it is an institution dedicated to “exclusively educational purposes.”

Founded in 1886, the university was chartered in New York as a non-religious institution in order to qualify for government funding. It claims, however, that the strongly religious nature of its coursework and its students’ pledge to live in accordance with Jewish law on campus should make the university eligible for religious protection.

“The Torah guides everything that we do at Yeshiva, from how we educate students to how we run our dining halls to how we organize our campus,” said Ari Berman, the university’s president. “We care deeply for and welcome all our students, including our LGBTQ students, and continue to be engaged in a productive dialogue with our rabbis, faculty and students on how we apply our Torah values to create an inclusive campus environment. We only ask the government to allow us the freedom to apply the Torah in accordance with our values.”

The university said it fosters a welcoming environment for LGBTQ students, including support services and a ban on anti-LGBTQ bullying and discrimination. But it argues that an endorsement of the YU Pride Alliance club would be a violation of its religious beliefs and cause it “irreparable harm.”

But the New York County Supreme Court ruled that Yeshiva University needed to “immediately recognize” the pride group as an official campus club, as the university is not considered a “religious corporation” and is therefore subject to the New York City Human Rights Law (NYCHRL), which prohibits discrimination on the basis of sexual orientation.

An appeal filed with the Supreme Court of the State of New York to stay the decision was rejected on Aug. 23. The emergency request filed with the Supreme Court on Monday seeks to block the immediate implementation of the lower court order until an appeal can be heard. The Supreme Court has asked the student group to respond to the school’s petition by Friday.

A fact sheet prepared by Yeshiva University in 1995 complicates its case. The university acknowledged in that document that it is “subject to the human rights ordinance of the City of New York, which provides protected status to homosexuals. Under this law, YU cannot ban gay student clubs.”

The Jewish Queer Youth (JQY) released a statement questioning the university’s claims of LBGTQ protection on campus.

“In framing this as a religious emergency that has to be stopped, YU is demonstrating the very homophobia that they claim does not exist on campus,” said JQY. “Instead of listening to what the students are actually asking for—a safe space where they can form friendships and community—YU is deliberately confusing queer youth’s need for self-esteem with a non-existent demand for sexual behavior. The long-term trauma proven to be associated with this kind of messaging can lead to an actual emergency.”

The university has asked the court to rule on whether the New York City Human Rights Law can override its religious judgments. The case could hinge on the precedent set by Employment Division v. Smith, a 1989 Supreme Court case in which the majority ruled that an individual’s religious beliefs can’t excuse them from compliance with an otherwise valid law prohibiting conduct that the government is free to regulate.

Allowing exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind,” wrote Justice Antonin Scalia, citing examples such as compulsory military service, payment of taxes, vaccination requirements and child-neglect laws.

However, in the 2021 case Fulton v. City of Philadelphia, Supreme Court Justices Amy Coney Barrett, Brett Kavanaugh, Samuel Alito, Clarence Thomas and Neil Gorsuch all stated that they supported overturning Employment Division v. Smith.

The current conservative Supreme Court majority ruled in favor of religious conservatives in two cases last term. Justice Samuel Alito has repeatedly called for greater protections for the free exercise of religion, including during a July speech in Rome in which he claimed “religious liberty is under attack in many places.”

JNS

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