The most recent Supreme Court battle over religion and LGBTQ rights in Yeshiva University v. YA Pride Alliance

An Orthodox Jewish college in New York is the latest to join the war when religious faith provides an exemption to anti-discrimination laws — especially when those laws benefit LGBTQ people.

On Friday, Judge Sonia Sotomayor issued a brief and unexplained order, which temporarily allows Yeshiva University to refuse to recognize a group of LGBTQ students.

Although Sotomayor’s order was likely issued to give the court more time to consider the case, known as Yeshiva University vs. YU Pride Alliance – the university says its student club recognition process ends on Monday and that it would be forced to recognize the LGBTQ group if the Court does not act by then – this almost certainly foreshadows how the Full Court will decide this case . Even if Sotomayor ultimately does not side with the university, Nominated Republicans control six of the Court’s nine seats, and they have shown extraordinary concern for conservative religious litigants.

That said, this case presents some unusually difficult First Amendment questions. The group of students at the heart of the case want the university to recognize it as an official campus group – a status that the university complains would require it to “endorse” the group’s views.

If the Pride Alliance were simply seeking access to meeting rooms or other facilities at Yeshiva University, then they would have a stronger case under applicable law. But the Pride Alliance campus is looking for more. They seek the imprimatur of the Orthodox Jewish University as “Yeshiva University Alliance of Pride. And that’s probably more than the student body can demand from a religious institution. Yeshiva University makes a strong argument that forcing it to lend its name to a group of LGBTQ students, even though a state court has determined that New York’s anti-discrimination law requires it to do so, infringes on his right to make “internal management decisions” regarding his own interpretation of the Jewish faith.

An open question is whether the Court will limit its ruling to similar disputes between religious universities and campus groups, or if it will return a broader victory to religious conservatives. In other words, will this Court take this case, in which a conservative religious organization raises a pretty strong legal claim, and use it to make deeper cuts than necessary in the fight efforts? against discrimination on campus?

What the current law says about campus discrimination

The Yeshiva University the case lies at the intersection of two distinct lines of legal precedent. One argues that the government has broad enough power to target discrimination on campuses. The other gives religious institutions considerable authority over matters concerning their own religious teachings.

According to the Supreme Court decision in Bob Jones University v. United States (1983), the government can refuse to subsidize universities that practice racial discrimination. And under Christian Legal Society v. Martinez (2010), a university (even a public university bound by the First Amendment) can prohibit campus groups from discriminating against students who seek membership. These decisions should not be challenged by a decision in favor of Yeshiva University.

In Bob Jones, the Court ruled that the IRS could deny tax-exempt status to a notoriously racist South Carolina university. “The government has a fundamental and overriding interest in eradicating racial discrimination in education,” the court explained. And that interest is strong enough to justify denying a religious university a tax grant because of its policy prohibiting interracial dating.

More recently, in Christian Legal Societythe Court held that a public university may require student organizations that receive certain benefits from the university to accept all students who wish to become members, even if the organization has a religious objection to accepting certain students (in Christian Legal Societya student club wanted to exclude students who engaged in “unrepentant homosexual conduct”).

Read together, these cases establish certain propositions. The first is that the government itself can use its resources to overcome discrimination. It can deny grants and other benefits to discriminatory organizations and prevent such organizations from using the name and logo of a public university to promote its views. Universities may also have their own anti-discrimination policies and may refuse to recognize student clubs that violate these policies.

A pedestrian walks past the campus of Yeshiva University in New York on August 30.
Spencer Platt/Getty Images

Meanwhile, a second line of cases establishes that religious institutions have absolute control over certain matters of internal religious governance, even if that religious governance leads to discrimination that would be illegal elsewhere. As the Court recognized in Kedroff v. St. Nicholas Cathedral (1952), religious organizations have the “power to decide for themselves, without interference from the state, questions of church government as well as those of faith and doctrine”.

When the courts determine that a particular matter is a “matter of church government,” moreover, that is an extraordinarily powerful decision. The Court ruled, for example, that anti-discrimination laws do not apply at all to how religious institutions select their “ministers,” and it defined the term “minister” broadly to include not only members of the traditional clergy, but also many teachers at religious schools. That means a religious institution could fire a preacher — and potentially a math teacher — because it objects to that employee’s skin color.

Yeshiva University’s strongest legal argument is that its decision whether to recognize an LGBTQ group on campus is the kind of internal governance issue within a faith that eludes government regulation.

Suppose, for example, that a dispute arises within a Jewish synagogue over whether worshipers should display an orange on the traditional Seder plate that is a centerpiece of Passover celebrations (many modern Jews place an orange on the Seder plate as an expression of sympathy with feminism or LGBTQ rights, but this is a relatively new practice). The question of whether an orange belongs on the Seder plate is a fairly standard question of Jewish faith or doctrine. And so, under Kedroffthe government should not seek to resolve this issue one way or the other.

Yeshiva argues that whether it should recognize an LGBTQ student organization is also a matter of faith or religious doctrine, and they defend that position quite well in their brief. Significantly, the Pride Alliance is not just looking for access to campus meeting spaces. He seeks to use the name of the university and proclaim himself Yeshiva University Pride Alliance. This would suggest that the university endorses, or at least condones, the views of the Pride Alliance.

But the university says the Pride Alliance’s views are “incompatible with its Torah values” – that is, incompatible with the Yeshiva’s understanding of what the Jewish faith teaches. Thus, they raise a strong argument under Kedroff. A state law, even a state anti-discrimination law, may not define the limits of what a particular religion is allowed to teach.

Supreme Court Could Go Much Farther than Necessary to Rule in Yeshiva’s Favor

As stated above, cases like Bob Jones and Christian Legal Society give the government and individual universities great authority to fight discrimination. But the current Supreme Court is very mindful of the claims advanced by religious conservatives. There is therefore a risk that this Court will use the Yeshiva University cases as an excuse to give the religious right a wider victory than cases like Kedroff require.

In June, for example, the Court ruled in Carson v. Makin that the state of Maine must pay for education in religious elementary and secondary schools — including schools with anti-LGBTQ views — as long as it operates a tuition voucher program that funds non-public education religious. carson relied on the extraordinary proposition that government neutrality toward religion may itself be “discrimination against religion.”

Then, a few days after its transmission carsonthe Court rendered a decision in Kennedy v. Bremerton School District in which he appeared to deliberately distort the facts of the case in order to present them in a light more favorable to the religious right.

Likewise, less than a month after Justice Amy Coney Barrett’s confirmation gave Republican appointees a supermajority on the Supreme Court, that new majority has issued a transformative ruling in Roman Catholic Diocese of Brooklyn c. Cuomo (2020), undermining three decades of precedent that religious organizations must generally follow the same laws as everyone else.

In other words, the Court seems eager to move quickly and overturn much of its longstanding religious jurisprudence, and to do so in a way that delivers historic victories for the religious right. There is therefore no guarantee that this Court will not use the Yeshiva University cases to undermine past precedents protecting against discrimination on campus.

But such an outcome is not necessary for Yeshiva to prevail in his case. Under current law, as established by cases like Kedroffthe university has a strong legal claim.

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