A Legal Overview of the YU Pride Alliance Case
Yeshiva University is currently embroiled in a lawsuit regarding its decision not to recognize the Pride Alliance as an official club. Many people are likely unfamiliar with the facts of the case and the legal theories put forward by both sides. In this article, I intend to clarify the actual legal issues of the case.
Over the last decade, there were several attempts, under different names, to create an LGBTQ club in YU’s undergraduate schools, all of which were rejected by the institution. YU claimed that such a club would be antithetical to its Torah values. Eventually, in 2021, after several years of club rejections, a group called the YU Pride Alliance, whose mission is to support LGBTQ students in YU, sued YU, alleging that YU’s rejection of its club violated the New York City Human Rights Law (NYCHRL), which prohibits entities providing services to the public from discriminating against people on the basis of various protected classes including sexual orientation or gender identity.
The Pride Alliance alleges that since YU, in order to receive government funding, rechartered itself as a non-sectarian educational institution in 1967 — as opposed to a religious institution, which could be given First Amendment exemptions from certain regulations including NYCHRL — it is covered under NYCHRL as a public accommodation, and should therefore be required to recognize the Alliance. YU also made a statement to that effect in 1995 that it has since reversed. Additionally, YU’s graduate schools have LGBTQ clubs, but YU has stated that the graduate schools are different, as the undergraduate schools are designed to be religious environments.
Despite YU’s defense, which was largely based on the claim that YU is a fundamentally religious organization, a New York trial court judge ruled in favor of the Pride Alliance last June and ordered YU to recognize the club immediately.
YU immediately appealed to a higher New York court both challenging the outcome of the case, claiming that they should have won, and requesting a stay on the order, which would allow YU to not allow the club until the appeals process finishes. The main appeal made its way through the court slowly until the ruling was eventually upheld in December 2022 (though YU again appealed, this time to the highest court in NY). The request for a stay was rejected almost immediately, prompting YU to appeal to the Supreme Court of the United States (SCOTUS) to lift that injunction for the duration of the trial.
The next step of the case was YU's appeal to SCOTUS. Within a few weeks, on Sept. 14, YU lost its appeal on procedural grounds, with a 5–4 majority saying that YU had to go through the rest of the New York Court system before appealing to SCOTUS. This loss, which would have required immediate recognition of the Pride Alliance, prompted YU to freeze all undergraduate clubs. After about a month, the Pride Alliance and YU agreed to a stay in court, allowing YU to not approve the club until after the appeals process in the case was finished, and clubs were restored.
Currently, the case has slowed down since some of the plaintiffs are now looking for payment for damages in a separate case that is bogged down in discovery, the lawsuit phase where both sides try to find information and documents from the other. The main case cannot progress until the damages case is resolved. Eventually, though, the case will move forward.
In SCOTUS, for the first time, we can see hints of where the case will end up. To understand how the case will likely turn out, we need to understand the legal questions addressed by SCOTUS and the content of the dissenting opinion in the case, written by Justice Samuel Alito. He wrote that in the “quite likely” event that the case returns to SCOTUS, “Yeshiva would likely win.” The other five Justices didn’t join in, likely because they focused on the lack of procedural grounds for YU to have a case. But why did Alito think Yeshiva would win?
At the state level, the main question was if YU falls under the NYCHRL. YU argued that it does not, since it sees itself as a fundamentally religious institution that pursues fundamentally religious goals, and thinks it should therefore fall under the NYCHRL’s exceptions. The Pride Alliance argued, and the judge agreed, that under the definitions provided in the NYCHRL itself (see the last paragraph of page five of the linked source), YU does not qualify for the religious exemption. YU is chartered as a New York State educational institution; therefore, the judge ruled that it falls under the NYCHRL.
In contrast, in its SCOTUS brief, YU emphasized a different aspect of the case. Here, a First Amendment argument about religious liberty, the content of which will be spelled out here, was front and center. In their SCOTUS brief, the Pride Alliance focused on procedural arguments, arguing that YU should have gone to other state courts before SCOTUS, which SCOTUS agreed with. The majority in the Court declined to rule on the actual questions of the case. However, since those substantive First Amendment issues will likely come before the Court again, it is worth understanding them.
YU formulated its three points of attack very clearly in its SCOTUS filing. I present here a summary from their filing, which I will proceed to unpack in plain language:
1. Whether, under the First Amendment’s Religion Clauses, the New York City Human Rights Law can be applied to override Yeshiva University’s religious judgment about which student organizations to officially recognize on campus consistent with its Torah values.
2. Whether, under Employment Division v. Smith, the New York City Human Rights Law, which categorically exempts hundreds of organizations from its reach and allows individualized exceptions for “bona fide reasons of public policy,” is “neutral” and “generally applicable.”
3. Whether Employment Division v. Smith should be overruled.
The first of these points asked SCOTUS to say that lower courts were wrong about YU being mandated to follow NYCHRL regulations. The arguments on both sides of this point have already been laid out.
The second and third points both relate to a case called Employment Division v. Smith (1990). The decision in that case, written by the late Justice Antonin Scalia, remains the basic framework for applying the First Amendment’s religious liberty clause. It deals with defining the limits of religious liberty. For example, if my sincerely held religious belief is that I have to drive my car down the wrong side of the road, no one would doubt that the government can still bar me from doing so. There is, in other words, some limit. This case established that limit as any laws that are neutral, that is, not designed to target religion, and generally applicable, that is, which apply to everyone without major exceptions for other reasons, are usually allowed to incidentally burden someone’s religious beliefs. In simpler terms, a law that was not designed to target religion (is neutral), and that applies to everyone without major exceptions for other reasons (generally applicable) would be legal, even if it ran afoul of someone’s religious beliefs.
YU’s second and third arguments rely on establishing itself as an institution that, if not explicitly religious in its charter, is a fundamentally religious one, guided by religious values. To this end, nearly half of YU’s SCOTUS brief focuses on establishing its religious identity, with references to the amount of religious education in YU, quotes from the plaintiffs to the effect that they and other students chose to attend YU to “further religious growth,” an emphasis on the religious nature the Pride Alliance intends to play and pictures of religious activities taking place in YU.
These arguments leave aside the NYCHRL’s definition of religious institutions, instead seeking to prove that YU is an institution sufficiently driven and motivated by religion to merit First Amendment protections.
With this background, YU’s second argument can be explained clearly. YU claims that the NYCHRL is not, in fact, applicable under Smith, due to the many exceptions for various groups it contains (again, see page five of the source). Religious corporations or even, YU argues, legally secular corporations with religious values fundamental to their identity, must be exempt from the NYCHRL. The Pride Alliance will likely point to the contradiction of allowing corporations to claim to be non-sectarian and also receive religious exemptions, according to legal experts I consulted. The SCOTUS ruling could go either way given recent precedents such as Masterpiece Cakeshop (2017) and Fulton (2020).
YU’s last argument is that Smith should be overturned entirely. This is an argument that several recent legal articles have made. In addition, three SCOTUS Justices have explicitly called for this action (page 23 of the Fulton pdf), while two others have said they’re unsure about whether to overturn Smith and what standard should replace it (page 20 of the Fulton pdf). This implies that YU has a legitimate chance of succeeding in this argument.
The Pride Alliance didn’t mention the merits on which it opposes overturning Smith in its SCOTUS filing, instead focusing on the procedural irregularity of overturning a previous ruling in an emergency appeal. However, it is likely, according to various legal experts I’ve consulted, that the counterarguments that the Pride Alliance will rely on to try to preserve Smith are reliance on precedent and the arguments made by Justice Scalia in the Smith decision. Basically, these are that the historical standard by which laws conflicting with religious values have always been decided fits Smith, rather than some other standard. Furthermore, Scalia said that more exceptions would cause social consequences and harm the public, which the Pride Alliance certainly is arguing is occurring here.
There are other legal avenues that may end up being explored, but the above are the most likely ones. Justice Alito and the three justices who joined him in dissenting to the decision denying YU the stay seem to think that one of these points is likely to create a ruling in YU’s favor. However, the fact that the other five justices did not sign on to that point or write a concurrence agreeing with it creates some room for doubt.
This issue is an extremely complex one, but when we in YU discuss and analyze this case, a full and proper understanding of the actual facts and arguments present is certainly necessary.
For clarification of the issues discussed or other aspects of the case, please reach out to the author at firstname.lastname@example.org.
Photo Caption: Students protest in front of YU.
Photo Credit: The YU Pride Alliance