Subverting the religious freedom of a Jewish school

Earlier this month, a New York court judge ruled that Yeshiva University must extend official recognition to a campus LGBT club even though the club contradicts Yeshiva’s understanding of the Jewish faith. According to the court, Yeshiva is not sufficiently religious to qualify for an exemption under New York City’s public accommodation law. This ruling strips religious liberty protections from every organization unless a court determines religion to be an organization’s primary purpose, posing an existential threat to nearly every religious school, hospital, and non-profit in New York City.

Plaintiffs in the case—mostly former students—argued that Yeshiva must officially recognize an LGBT club on campus, even though their club contradicts the university’s core religious beliefs. They claim that New York City’s public accommodation law applies to Yeshiva and that the school’s refusal to sponsor clubs that contradict its religious beliefs amounts to discrimination based on sexual orientation.

Yeshiva officials pointed out that the public accommodation law expressly exempts religious organizations. It applies only to “places of public accommodation” and expressly excludes “a religious corporation incorporated under the education law” from the definition of such an accommodation.

Yeshiva is a religious educational institution that should easily qualify for the exemption. Indeed, the New York judge admitted that “at first blush” that conclusion seems “obvious.” Yeshiva has a proud Jewish heritage and a mission to combine the “spirit of the Torah” with an excellent education. Judge Lynn R. Kotler was even willing to assume that Yeshiva had a religious function (a fact hard to deny) and noted that its religious character “defines it and sets it apart from other schools and universities of higher education.”

Yet Judge Kotler evaded the straightforward conclusion that Yeshiva is a religious educational institution by looking to the school’s stated primary purpose. “The record shows that the purpose students attend Yeshiva is to obtain an education, not for religious worship or some other function which is religious at its core,” Kotler wrote. Because Yeshiva operated primarily for “educational purposes,” it could not be a religious corporation. The court’s standard would make it exceedingly difficult for an educational institution to be eligible for religious liberty protections (despite the clear legislative directive to afford religious educational corporations an exemption). To qualify, Yeshiva must be akin to a house of worship and have been formed “primarily” for a religious purpose.

The court’s opinion overlooks that many religious institutions also have other purposes. Many parents choose religious education so their children can be taught consistent with their faith traditions. Just last week, in Carson v. Makin, the U.S. Supreme Court explained, “Educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”

Judge Kotler’s reasoning is horrifyingly broad. If the court is correct, then there is no such thing as a religious hospital, a religious homeless shelter, a religious soup kitchen, a religious crisis pregnancy care center, or a religious school. Such a result is inconsistent with New York City’s law and with common sense. As Yeshiva leaders put it, the “ruling that Yeshiva is not religious is obviously wrong.”

The New York court also erred by failing to find Yeshiva protected by the First Amendment. Yeshiva argued that the free exercise clause prevented New York City from requiring it to sanction an LGBT club in violation of its religious beliefs. Judge Kotler disagreed, finding that New York City could apply its public accommodations law notwithstanding the First Amendment because the city’s law was, in legal terms, neutral and generally applicable.

Recent U.S. Supreme Court precedent forecloses that argument. In Fulton v. City of Philadelphia, the high court held that Philadelphia’s refusal to contract with Catholic Social Services unless it agreed to certify same-sex couples as foster parents violated the free exercise clause. The court explained that strict scrutiny applies whenever a law prohibits religious conduct while permitting similar secular conduct. New York City’s public accommodations law, however, excludes private clubs with up to 400 members. This exception means that the law is subject to the most rigorous scrutiny. The plaintiffs must (but cannot) show that applying New York City’s public accommodation law to Yeshiva University promotes a compelling governmental interest and is narrowly tailored.

Yeshiva University vowed to immediately appeal the decision that it is not sufficiently religious. That is an argument it should easily win.