This past weekend, Yeshiva University took a dramatic step that many observers thought would never happen: it decided to suspend the operation of all undergraduate on-campus clubs indefinitely, rather than to accede to a June 2022 order from New York State Judge Lynn R. Kotler “to immediately grant plaintiff Pride Alliance the full and equal accommodations, advantages, facilities, and privileges afforded to all other student groups at Yeshiva University.” Judge Kotler issued the order after determining that Yeshiva was not a religious corporation under applicable New York law, and was thus subject to New York City Human Rights Law (NYCHRL), which makes it unlawful for a business in “all places of public accommodation” to discriminate against any person because of his or her “sexual orientation.” 

For its part, Yeshiva had claimed the protected status as “a religious corporation incorporated under the education law,” given that it had always organized its undergraduate institution to that end. It did so even though one of its other divisions, namely Cardozo Law School, had, as its irate faculty had noted in a recent letter to Yeshiva President Rabbi Ari Berman, long given full recognition to LGBTQ+ individuals and organizations. But for Judge Kotler the key point was not what Yeshiva does today, but what it wrote about itself in 1967 when it expanded its charter from the study of Talmud to a wide range of Jewish and secular studies. This expansion, Judge Kotler explained, qualified Yeshiva as an “educational corporation under the Education Law of the State of New York.” In effect, Yeshiva was barred by its own fifty-five-year-old declaration from claiming a protected religious status today. 

But why? By any functional account, the reasons New York City (like so many other government entities) created this religious exemption was to ease the nasty conflict between forced association under antidiscrimination laws and the exercise of religious liberty, as protected by the First Amendment. That conflict remains in place no matter what the state charter says. The underlying theory is that it is appropriate to impose a nondiscrimination rule when the various suspect attributes of a given person are irrelevant to any rational decision about the performance of the protected parties under statutes like NYCHRL, but that this logic does not cover activities that fall outside the public realm—such as the practice of religious education. That theory was given voice by Justice William Brennan in Roberts v. United States Jaycees (1984), when he ordered the Jaycees, a large men’s civic organization with many branches, to admit women. But, at the same time, Justice Brennan noted that the antidiscrimination laws were displaced by the principle of free association that covered “certain intimate human relations . . . in pursuit of a wide variety of political, social, economic, educational, religious and cultural ends.”

Justice Brennan did not spell out with any particularity how his test worked. But Yeshiva, given its deep and lasting connections to Torah and Jewish law, is easily distinguishable from the Jaycees, which could not claim the same religious goals as Yeshiva does now. Nonetheless, Judge Kotler gave short shrift to the distinctive religious elements in this case by noting that NYCHRL restrictions were only “incidental” to the operation of Yeshiva, and that the full recognition of the Yeshiva Pride Alliance was not “an endorsement” of the Pride Alliance’s beliefs but merely acceptance of the more modest claim to “equal access” to Yeshiva’s facilities. Missing in this analysis is the obvious point that the NYCHRL allows a student group whose purposes are antithetical to Yeshiva’s to commandeer the university’s resources for its own advantage. Yeshiva must now subsidize a set of practices it considers deeply antithetical to its own mission. 

The situation here harks back to the unfortunate results in Christian Legal Society Chapter of Hastings v. Martinez (2010), where the United States Supreme Court allowed Hastings College of the Law to restrict the privileges of the Christian Legal Society (CLS) chapter because the group refused to admit as members (though they could attend meetings) any gay or lesbian individuals who did not agree to take the CLS’s “Statement of Faith” vows, which expressly prohibited sexual relations outside of a marriage between a man and a woman. It is proper to insist that all public institutions admit students without forcing them to abandon their religious scruples. Hastings, then, set an unconstitutional condition by demanding CLS members abandon their views in order to gain access to a public university that is, properly understood, open to all.

Hastings looked plausible only because it rested on the thoroughly misguided First Amendment decision of Justice Antonin Scalia in Employment Division, Oregon v. Smith (1990), which held that religious liberty claims cannot defeat neutral laws of general applicability. The neutral Hastings rule that required all school groups to admit all comers was akin to a death knell for the CLS, because it could easily let gay and lesbian populations who refuse to adopt CLS practices dominate the chapter. The CLS’s desire to exclude from its internal governance those who refused to adhere to its religious mission is precisely the kind of accommodation that should be welcomed, not rejected, not just by the Supreme Court but by everyone else.

The great flaw in Smith is that it ignores the obvious disparate impact of some neutral rules on religious groups. The traditional, pre-Smith view would have required that the state make some “reasonable accommodation” for these religious groups to avoid just those conflicts. In a real way, Justice Scalia’s blunder in Smith paved the way to for the NYCHRL to doom Yeshiva’s search for a religious accommodation. Hence Yeshiva’s decision to cancel all club activities to avoid a choice between violating its religious mission and violating antidiscrimination law. The LGBTQ+ community cannot claim to suffer from discrimination when all other campus groups are similarly silenced to protect Yeshiva’s religious freedom.

There is no reason to use the antidiscrimination law as a cudgel to achieve that result. As  noted in an amicus curiae brief submitted on my behalf by the First Liberty Institute, Yeshiva was already sensitive to the demands of LGBTQ+ students, as evidenced by its efforts to foster discussions between these students and other Yeshiva students. It did so even though Yeshiva would have been within its rights to exclude LGBTQ+ students altogether. So why use the NYCHRL to further polarize the situation? It seems, therefore, highly likely that this case will eventually reach the Supreme Court, whether or not New York courts continue to turn a deaf ear to these religious liberty claims.

It is most regrettable that in the meantime the US Supreme Court, in a five-four decision, denied a stay of the New York law, simply suggesting that Yeshiva should take prompt action in New York court to obtain swift resolution of the matter. Justice Alito, writing for three other conservative justices (Thomas, Gorsuch, and Barrett) argued that the First Amendment does not “permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect.” He noted that the dissenting justices were willing to hear the case sooner or later and vote to reverse the outcome.

That result seems especially likely in light of recent decisions such as Fulton v. City of Philadelphia, which struck down Philadelphia’s efforts to exclude all Catholic Charities from its foster care program because they would not place children with either unmarried or same-sex couples. Fulton pointedly refused to give a broad definition to “public accommodation” used to trigger the Philadelphia antidiscrimination law and noted further that Philadelphia offered no reason to exclude these groups from providing valuable services—especially when other organizations are available to serve those couples the church would not. Fulton sidestepped Smith, which is likely to get a prompt interment next time around. 

This whole episode reveals not only the obvious conclusion that a reasonable-accommodation test would work well to protect Yeshiva and religious or associational rights more broadly; it reveals also that the antidiscrimination laws have too far a reach in American society.

The initial analytical inquiry should be whether the state should impose any antidiscrimination law on any private institution that operates in a well-functioning competitive market. The historical answer to that question was largely negative, for the simple reason that state coercive power is too blunt an instrument to “protect” individuals who had, without government intervention, market alternatives to any business establishment. Those choices do not involve government coercion, and they do not require government agencies to inquire into the motivations or “good faith” of various market actors. On this view, the antidiscrimination principle’s scope is limited to firms exerting monopoly power in some relevant market, of which common carriers and public utilities are the most common.

But note two key features of this classic scenario. First, there are no credible alternatives for services. Second, the demands of the nondiscrimination principle are relatively simple: offer a seat on a bus, or supply power at standard rates. The purported extension of this duty to employment relationships and charitable, educational, and religious institutions opens the door to government abuse, of which the assault on Yeshiva is only the latest iteration.

Sadly, no court is going to overturn the over-expansive human rights laws in existence today, despite the burden they place on religious liberty and their unfortunate effect of preventing the provision of valuable services by faith-driven organizations. But at the very least, courts must minimize the untoward dangers of these laws by exempting from their application religious institutions that know far better than any court what their internal practices require.

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