By: Natan Ehrenreich  | 

Everything You Need to Know (So Far) About The LGBTQ Discrimination Case Against YU

Let’s be honest: Very few of us pay close attention to the news stories covered in the campus newspapers. Sure, it’s nice that we have people writing about new master's programs and falling elevators, but these things do not (in my experience) spark ferocious debate on campus. That said, there is one relevant news story that every YU student has thought about at some point in time: the pending lawsuit brought by the YU Pride Alliance against the university and its chief representatives. Filed nearly six months ago, the lawsuit has attracted national attention (see here, here, and here). Yet it seems that despite considerable interest on campus, few students have an idea of the major claims and issues at the heart of the case. This article will attempt to remedy that in light of an order signed by Judge Lynn Kotler on Oct. 12 and filed on Oct. 18.

It should be noted that I am not a lawyer, law student or legal expert. The analysis in this article is derived chiefly from consuming the vast amount of material relevant to this case, as well as research and discussion with those who possess requisite knowledge about applicable issues. As far as I can tell, no lawyer has taken the time to analyze the case in a matter relevant to YU students, so you’re stuck with me.

What’s Happened So Far 

Before we examine the issues currently under adjudication, let’s take a look at some of the main developments over the last six months. After YU repeatedly rejected official club status to a collection of students known as the “YU Pride Alliance,” the informal group sued YU for relief pertaining to discrimination on the basis of sexual orientation, which is prohibited under New York City Human Rights Law (NYCHRL). The Pride Alliance, represented by civil rights attorney Katherine Rosenfeld, also requested that the court issue an injunction forcing the approval of the club while the lawsuit is pending. Also filed were various exhibits and affidavits from the plaintiffs that centered around an issue that remains essential to the case: Is YU a religious corporation? 

Why does this matter? Because the entire lawsuit stands solely on the answer to this question. That’s because “religious corporations” are exempt from the relevant provision in NYCHRL. If deemed a religious corporation, YU would be legally entitled to reject the Pride Alliance as an official club even if such efforts would normally fall under the banner of illegal discrimination. The plaintiffs submitted documents dating back to 1970 describing YU’s “non-sectarian” nature in an attempt to prove, for legal purposes, that YU is not a religious corporation. 

It was therefore apparent almost immediately that this was going to morph from a discrimination case into a religious freedom one. That became “official” when attorneys from the Becket Fund for Religious Liberty, which describes itself as “a non-profit, public interest law firm defending the freedom of religion of people of all faiths,” signed on to represent YU back in June. For those unfamiliar with the Becket Fund, here’s some relevant information: Becket is the single most important non-profit law firm in the country that deals exclusively with issues pertaining to religious liberty. They have argued and won several cases in front of the United States Supreme Court. This year’s most notable Supreme Court case, Fulton v. City of Philadelphia, was successfully argued and litigated by the Becket Fund (the case has some pretty stark parallels to our own). So, if you’re paying attention, these guys are the real deal. They chose to take on this case because they believe in its national importance, and they are right. Regardless of where you stand, it’s important to understand that the outcome of the Pride Alliance’s lawsuit could conceivably impact religious liberty jurisprudence beyond this case alone.

The biggest developments came in late August, when the court rejected the plaintiffs’ request for a preliminary injunction, and converted the defense’s motion for dismissal into one for summary judgment. Essentially, this boils down to the court deciding that, while the case is litigated, YU will not be forced to approve the Pride Alliance as an official club on campus. If the plaintiffs want relief, they are going to have to wait until the final decision. Furthermore, the lawsuit would not be decided on a traditional timeline, but in a fast-tracked manner. Summary judgment is used when the facts of a case are not in dispute, but the law’s application to those facts is unclear. There is no beating around the bush; This was (and likely still is) a significant victory for YU. The order in late August made it very hard to predict a favorable outcome for the plaintiffs. 

However, things changed when the plaintiffs filed a motion for continuance (essentially a pause in the court proceedings). No, the Pride Alliance claimed, YU’s religious character was not a settled matter. Further discovery (internal documents, depositions, various other inquiries) was needed to determine YU’s religious or secular character. Judge Kotler had declined to decide the issue in her August order, but she did seem to suggest that the law would likely view YU as a religious corporation. The logic was pretty clear. A reasonable bystander would be forced to acknowledge YU’s “religious character,” and how YU has represented itself from a corporate standpoint is probably not relevant from a legal standpoint.

Where We Are Now

This week, Judge Kotler granted the plaintiffs’ motion for continuance. As she put it, the order allows for “discovery regarding factual issues necessary to resolve the central question ... whether Yeshiva University is exempt from the New York City Human Rights Law because it is a religious corporation…” 

What does this mean? It means that YU is probably going to have to turn over a number of documents that pertain to how it has represented itself from a corporate perspective, and that a number of YU’s current and past employees will be deposed by the plaintiffs’ attorney. 

Judge Kotler noted in her order that “discovery must be limited to the issue of whether Yeshiva is a religious corporation within the meaning of the NYCHR.” She also noted that discovery might allow the Pride Alliance to argue that “summary judgment is premature.” 

What Comes Next

The decisions from August and October give us a much better idea of where the lawsuit stands than the one we had back in April. The August order was undoubtedly favorable to YU, and it seemed that they had the law on their side. The October order doesn’t necessarily change that, but it does extend another opportunity for the Pride Alliance to dig into the key facts of the case. They will have the opportunity over the coming months to compile evidence proving that YU is not a religious corporation. If they are successful, the outlook of the case will shift dramatically. It would be an enormous accomplishment, one that would put them very close to a favorable ruling. However, doing so will not be easy. The orders from Judge Kotler suggest that they have quite a bit of work to do. 

In summary, I offer the following comment. So far, this case has moved slowly in favor of YU. There is a very real, perhaps likely, possibility that they will be deemed a religious corporation, which would all but end the Pride Alliance’s chances. However, we still have plenty of time to wait. Deadlines for future surreplies extend well into 2022, and who knows what they could bring to light. The timeline underscores the nature of litigation: It’s slow, it’s expensive, and it’s unpredictable. But while we don’t know when this case will be decided (it might not be for many more months), we do know that one question is going to reign supreme in future deliberations: Is YU a religious corporation? How Judge Kotler answers that question will be the crux of resolving the issue that has consumed campus discourse this past year, and will continue to do so as long as the lawsuit hangs in limbo.

Photo Caption: A courtroom

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