An attack on dissent

Across America, religious schools are facing lawsuits, federal investigations, and derogatory media coverage intended to pressure the schools to abandon their faith and adopt progressive ideology. Just consider Yeshiva University, a Jewish school in New York, that has refused to officially recognize an LGBTQ pride club. Yeshiva allowed the students to meet on campus, but it declined formal recognition because the group promotes principles that conflict with Yeshiva’s religious convictions.

The group sued Yeshiva, and a New York court ordered the school to immediately recognize the club. This month, Yeshiva filed an emergency appeal with the U.S. Supreme Court, but the High Court denied the appeal, stating that the school must seek relief in the New York courts first. Since the New York state courts found the plaintiff's argument credible, it is an ominous sign for how other courts in the state will treat Yeshiva’s case.

To justify this legal subjugation of religious institutions, the culture’s influencers often make a chilling analogy. Justice Samuel Alito saw that false analogy and prophetically declared in his dissenting opinion in Obergefell that the erroneous comparison between religious Americans who believe in traditional marriage and white supremacists who denied equal treatment for blacks “will be exploited by those who are determined to stamp out every vestige of dissent.” His warning proved prescient. This false comparison ignores a fundamental distinction. Racial discrimination established a caste system in America where blacks were subservient to whites by government mandate, but religious schools that decline to accept and affirm the sexual orthodoxy do not have the power or intent to force any such caste system on the larger society.

Rather, because of the legal coercion increasingly imposed on religious Americans who remain true to their convictions, religious institutions are threatened with being sent to the bottom of the social order if they dare dissent to the new ideology. Yeshiva is the latest religious institution experiencing legalized ideological supremacy. It will not be the last.

To enforce its demands on Yeshiva, the New York court twisted the law and ignored the explicit religious exemption stated clearly within the New York anti-discrimination statute. Consequently, the court treated Yeshiva University as a place of public accommodation, contradicting the principle behind civil rights laws.

Consider the quintessential anti-discrimination bill, the Civil Rights Act of 1964, which was passed to address government sanctioned racial discrimination. The Civil Rights Act prevented discrimination against minorities in places where a state possessed monopoly power. Famous cases like the Heart of Atlanta Motel v. United States cited discrimination against black people in transient accommodations, such as hotels, restaurants, theatres, recreational areas, and other public accommodations and facilities. Notably, the New York anti-discrimination law that the court interpreted in Yeshiva’s case was passed a year after the Civil Rights Act and used very similar language.

Moreover, protecting private association is one key reason why religious institutions were historically exempt from public accommodations laws. As NYU Law Professor Richard A. Epstein notes, at private schools like Yeshiva, “not only is there a complete absence of monopoly power, but there is also a concern with internal operations that just does not arise in the earlier civil rights cases.” In other words, students who want to attend a university very different than Yeshiva are free to do so, but Yeshiva University should also be free to serve its religious purpose in peace.

In cases following Congress’ enactment of the Civil Rights Act, the Supreme Court clarified that the public accommodations law could not force private organizations to compromise their beliefs or practices and interfere with the organization’s mission or right of association. The protections for a private religious institution are even higher.

Students attend religious schools because they want an environment that infuses the educational with the spiritual. Forcing these institutions to abandon their spiritual identity to appease the demands of the culture would transform religious schools into secular institutions. While many religious schools may be tempted to compromise or even shut their doors in the face of the waves of attacks, they must remember that they exist to equip the next generation of believers. Religious schools must protect their right to educate students according to their religious doctrines and not according to society’s ever-changing whims. We must stand up for these schools, and make the issues clear.