An Orthodox Jewish university in New York City is the latest to join the war over when religious faith provides an exemption to anti-discrimination laws — especially when those laws benefit LGBTQ people.
On Friday, Justice Sonia Sotomayor handed down a brief and unexplained order, which temporarily allows Yeshiva University to refuse to recognize an LGBTQ student group.
Although Sotomayor’s order was likely issued to give the Court more time to consider the case, known as Yeshiva University v. YU Pride Alliance — the university says that its process for recognizing student clubs ends on Monday, and that it would be forced to recognize the LGBTQ group if the Court did not act before then — it almost certainly foreshadows how the full Court will decide this case. Even if Sotomayor doesn’t ultimately side with the university, Republican appointees control six of the Court’s nine seats, and they’ve shown extraordinary solicitude toward conservative religious litigants.
That said, this case presents unusually difficult First Amendment questions. The student group at the heart of this case wants 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 merely sought access to meeting rooms or other Yeshiva University facilities, then they would have a stronger case under existing law. But the campus Pride Alliance seeks more. They seek the Orthodox Jewish university’s imprimatur as the “Yeshiva University Pride Alliance.” And that is probably more than the student group can demand from a religious institution. Yeshiva University raises a strong argument that requiring it to lend its name to an LGBTQ student group, even though a state court determined that New York anti-discrimination law requires it to do so, infringes on its right to make “internal management decisions” regarding its own interpretation of the Jewish faith.
One open question is whether the Court will confine its ruling to similar disputes between religious universities and campus groups, or whether it will hand down a more expansive victory for religious conservatives. In other words, will this Court take this case, in which a conservative religious organization raises a fairly strong legal claim, and use it to make deeper-than-necessary cuts against anti-discrimination efforts on campus?
What current law says about discrimination on campus
The Yeshiva University case sits at the intersection of two separate lines of legal precedent. One holds that the government has fairly broad authority to target discrimination on campus. The other gives religious institutions considerable authority over questions about their own religious teachings.
Under the Supreme Court’s decision in Bob Jones University v. United States (1983), the government may refuse to subsidize universities that engage in race discrimination. And, under Christian Legal Society v. Martinez (2010), a university (even a public university that is bound by the First Amendment) may forbid campus groups from discriminating against students who wish to become members. These decisions should not be jeopardized by a decision in Yeshiva University’s favor.
In Bob Jones, the Court held that the IRS could deny tax-exempt status to a notoriously racist university in South Carolina. “The Government has a fundamental, overriding interest in eradicating racial discrimination in education,” the Court explained. And that interest is sufficiently strong to justify denying a tax subsidy to a religious university because of its policy prohibiting interracial dating.
More recently, in Christian Legal Society, the 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 Society, a student club wished to exclude students who engage in “unrepentant homosexual conduct”).
Read together, these cases establish certain propositions. One is that the government itself may use its resources to defeat discrimination. It may deny subsidies and other benefits to organizations that discriminate, and prevent these organizations from using a public university’s name and logo to promote its views. Universities may also have their own anti-discrimination policies, and may refuse to recognize student clubs that violate these policies.
Meanwhile, a second line of cases establish 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, free from state interference, matters of church government as well as those of faith and doctrine.”
When the courts determine that a particular question is a “matter of church government,” moreover, that is an extraordinarily potent determination. The Court has held, for example, that anti-discrimination laws do not apply at all to how religious institutions select their “ministers,” and it’s defined the term “minister” broadly to include not just traditional clergy members, but also many teachers at religious schools. That means that a religious institution could fire a preacher — and potentially, a math teacher — because it objects to this employee’s skin color.
Yeshiva University’s strongest legal argument is that its decision on whether to recognize a campus LGBTQ group is the sort of matter of internal governance within a faith that is beyond government regulation.
Suppose, for example, that a dispute arose within a Jewish synagogue about whether congregants 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 classic question of Jewish faith or doctrine. And thus, under Kedroff, the government should not seek to resolve this question one way or the other.
Yeshiva argues that the question of whether it should recognize an LGBTQ student organization is similarly a question of religious faith or doctrine, and they make a fairly strong case for this position in their brief. Significantly, the Pride Alliance does not simply seek access to campus meeting spaces. It seeks to use the university’s name and proclaim itself the Yeshiva University Pride Alliance. That would suggest that the university endorses, or at least condones, the Pride Alliance’s views.
But the university claims that the Pride Alliance’s views are “inconsistent with its Torah values” — that is, inconsistent with 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 boundaries of what any particular faith is allowed to teach.
The Supreme Court could go much further than it needs to in order to rule in Yeshiva’s favor
As noted above, cases like Bob Jones and Christian Legal Society give the government and individual universities a great deal of authority to fight discrimination. But the current Supreme Court is very solicitous toward claims advanced by religious conservatives. So there is a risk that this Court will use the Yeshiva University case as an excuse to hand the religious right a more sweeping victory than cases like Kedroff require.
In June, for example, the Court held in Carson v. Makin that the state of Maine must pay for education at religious primary and secondary schools — including at schools with anti-LGBTQ views — so long as it operates a tuition voucher program that funds non-religious private education. Carson relied on the extraordinary proposition that government neutrality toward religion can itself be “discrimination against religion.”
Then, a few days after it handed down Carson, the Court handed down a decision in Kennedy v. Bremerton School District in which it appeared to deliberately misrepresent the facts of the case in order to present them in a light more favorable to the religious right.
Similarly, less than a month after Justice Amy Coney Barrett’s confirmation gave Republican appointees a supermajority on the Supreme Court, that new majority handed down a transformative decision in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), undercutting three decades of precedent holding that religious organizations typically must follow the same laws as everyone else.
The Court, in other words, appears eager to move fast and break much of its longstanding religion jurisprudence, and to do so in ways that hand historic victories to the religious right. So there is no guarantee that this Court won’t use the Yeshiva University case to undermine past precedents protecting against discrimination on campus.
But such an outcome is not necessary for Yeshiva to prevail in its lawsuit. Under existing law, as established by cases like Kedroff, the university has a strong legal claim.