A New York City court has dealt Yeshiva University, and religious liberty, a blow.
When is a religious educational institution not religious? In New York State, according to a Manhattan judge, it is when the institution defies local laws promoting the LGBT agenda.
Yeshiva University describes itself as “a small yeshiva offering some secular education to Jews on the Lower East Side of Manhattan in 1886” that has grown “to a prestigious, multifaceted institution that integrates the knowledge of Western civilization and the rich treasures of Jewish culture.”
It is also the institution dealt a serious legal blow by Judge Lynn Kotler on June 14th, as she ruled in Yeshiva University v. YU Pride Alliance et al that the school must recognize a campus LGBTQ organization.
And what, exactly, was this ruling predicated on? If you assumed that this nonprofit college is decidedly and formally religious—due to its reputation in New York and globally as a place of serious Talmudic scholarship, of Orthodox Jewish religious contemplation and study, and home to the Rabbi Isaac Elchanan Theological Seminary (which graduates more Orthodox rabbis than any other American seminary)—and as a religious institution is therefore protected from having to recognize organizations and practices at odds with its religious doctrines, then you would find yourself in disagreement with the jurist who is presiding over this critical religious-liberty case.
Matters came to Judge Kotkin’s court after Yeshiva officials had rejected, in 2019 and 2020, requests for formal school recognition of an LGBT club. Those denials, based on the school’s long-standing religious beliefs and practices, prompted a 2021 lawsuit by the YU Pride Alliance, along with a small group of alumni and one anonymous student, who charged the school violated the New York City Human Rights Law, which declares it an “unlawful discriminatory practice” to use sexual orientation as a basis to “refuse, withhold from or deny to such person the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of public accommodation.”
The litigants claimed that Yeshiva had lost any standing as a protected religious institution when it amended its charter in the mid 1960s—in response to federal programs offering grants to religious colleges—and therefore could not claim exemption from the statute.
In her opinion—a ruling on a summary judgment petition—Judge Kotler made the question of granting or denying the LGBT club’s formal recognition contingent on just that point—whether Yeshiva University was either a religious, or a secular, place of education:
Yeshiva asserts that it is a religious corporation incorporated under the education law. If that is the case, then plaintiffs do not have claim under the NYCHRL against Yeshiva for failure to officially recognize YU Pride Alliance.
There is no dispute that Yeshiva is incorporated under the education law. Thus, the court must determine whether Yeshiva is a religious corporation as defendants contend. This court finds that it is not.
Kotler based her decision on “Yeshiva’s organizing documents,” which she claims “do not expressly indicate that Yeshiva has religious purpose. Rather, Yeshiva organized itself as an ‘educational corporation’ and for educational purposes, exclusively.”
The ruling has prompted significant media attention in the Jewish press—The Forward, the Jewish Telegraphic Agency, Ynet, Jewish Press, and The Times of Israel all gave Kotler’s surprise verdict significant attention. After all, to claim Yeshiva is not religious seems meshugana.
The criticism the Becket Fund for Religious Liberty—America’s premier nonprofit legal firm defending the First Amendment right to free worship—has for the ruling is less colloquial. Eric Baxter who is vice president and senior counsel at Becket, which is representing the school in this matter, tells Philanthropy Daily plainly: “any ruling that the school is not religious is obviously wrong. It is one of the most religious universities in America.”
Baxter defends that claim by citing a list of impressive facts—including “the law of kosher food and the Sabbath prevail on campus” . . . “it shares a campus with a seminary” . . . “undergraduate students days begin at 8:00 a.m. with 5-½ hours of studying the Torah” . . . “there is a minimum Torah study requirement for even non-Jewish” students—which cast the secular/religious arguments made in the case’s legal briefs as a matter of “semantics,” and as the reasons why Kotler’s decision has stunned many.
Yeshiva officials, as reported in The Commentator, the school’s newspaper, attacked the decision as a violation of its religious liberty, and promised an immediate appeal:
The court’s ruling violates the religious liberty upon which this country was founded. . . . The decision permits courts to interfere in the internal affairs of religious schools, hospitals, and other charitable organizations. Any ruling that Yeshiva is not religious is obviously wrong. As our name indicates, Yeshiva University was founded to instill Torah values in its students while providing a stellar education, allowing them to live with religious conviction as noble citizens and committed Jews. While we love and care for our students, who are all—each and every one—created in God’s image, we firmly disagree with today’s ruling and will immediately appeal the decision.
Baxter said there is “no evidence” that the big school (its graduate programs include the Einstein School of Medicine, the Cardozo School of Law, and the Syms School of Business) which started as a small neighborhood yeshiva during the first term of President Grover Cleveland, has ever been anything other than a distinctly religious institution.
“There was never a decision,” he said, “by Yeshiva leadership to change its status; there was never a decision made to be secular.”