The Catholic Fascist Freakout Is On! Another Washington Heights Norman Lamm Tribute: YU Supports Heterosexual Rape Over LGBTQ Student Club!
David Shasha
Letter From Rabbi Dr. Ari Berman on Supreme Court LGBTQ Case
My Dear Friends,
Many of you know that Yeshiva University is defending its right in the Supreme Court to make its own religious decisions. Due to the significance of the matter, I share with you below a number of the answers we have posted to the questions we have received these past few days. For further updates, please visit yu.edu/case-faqs.
Rabbi Dr. Ari Berman
President, Yeshiva University
Why is this case in the US court system?
Yeshiva University was brought to court based on the claim that it is not religious enough to be allowed to make its own decision on religious matters. The court case is solely about YU’s freedom to act according to its values without government interference.
What are the consequences if Yeshiva University loses these court rulings?
Yeshiva University will no longer be able to govern itself according to its principles of faith as it will be subject to any claims of discrimination. If, for example, a student wished to form a Jews for Jesus club, Yeshiva would be required to allow it. Sabbath observance on campus, the hiring of Orthodox rabbis and educators and maintaining our separate gender campuses would all be open to potential lawsuits.
How did this situation arise?
Yeshiva University has a long-standing policy to officially approve student clubs that are consistent with its Torah values. For this reason, it has not granted official club status to many other club applications in the past, including a gun club and a Jewish fraternity, as the names and activities associated with these clubs were deemed not fully consistent with the values of YU. A similar conclusion was reached on the application of the YU Pride Alliance.
Does Yeshiva University welcome LGBTQ students in its undergraduate schools?
Absolutely.
We welcome, love and care for all our students, including our LGBTQ students. We place a specific emphasis of importance on supporting our LGBTQ students. There are a number of ways we express this support, including hosting an LGBTQ support group, requiring LGBTQ sensitivity training to all of our rabbis and faculty and presenting public events so that all of our students better understand the experience of being LGBTQ and Orthodox. And, of course, we uphold our strong anti-bullying and anti-discrimination policies. We understand that a number of our LGBTQ students think YU should be doing more for them including establishing a student club. We had been engaged in a constructive dialogue with our students to work on building an even more inclusive campus experience.
However, when we were sued with the claim that we do not have the right to make our own decisions, the matter changed entirely from an LGBTQ discussion to defending the future of our institution.
Do the same expectations that apply to the undergraduate schools, apply to YU’s professional and academic graduate schools?
No.
The way Yeshiva University applies its Torah values to the graduate schools is very different than its undergraduate schools.
We are very clear about the type of environment that exists on our undergraduate campus, and every undergaduate student who makes the personal choice to come here is choosing this environment instead of other college experiences. The undergraduate experience at Yeshiva is intentionally designed to be an intensely religious one during the formative years of our students’ lives. Its fundamental purpose is to faithfully transmit our multimillennial tradition to enable our students to integrate their faith and practice in lives of enormous professional success, impact and personal meaning. The daily schedule of our undergraduate students requires hours of Torah study. The campus experience fosters a deeply religious experience including two single sex campuses, multiple prayer services throughout the day, Shabbat regulations, kashrut observance and extra Torah study opportunities in the evenings.
As students move from their formative years to our professional graduate schools, there is a shift in focus towards professional training and academic research. These schools, comprised of Jews and non-Jews, excel in their scholarship and education of excellent professionals in their respective fields. These schools also embody our core values to “Seek Truth, Discover Your Potential, Live Your Values, Act with Compassion and Bring Redemption,” in their respective learning communities. They also follow a Jewish calendar and maintain kosher standards to facilitate an accessible experience to our Orthodox Jewish students. But the focus is wholly different and so are the assumptions of student life.
Is Yeshiva University accepting of LGBTQ staff and personnel as well?
Absolutely.
As a religious institution of higher education, can Yeshiva University accept government funds?
Yes, it can. In fact, almost all religious universities and colleges receive state and federal funding. The Supreme Court has ruled repeatedly—as recently as this June—that, when the government makes funding generally available, it cannot discriminate in the distribution of those funds based on religion. For example, it can’t offer Pell grants to students generally but then deny them to students who want to go to a religious school. That would be religious discrimination. We do not lose our religious status just because we participate in public life on equal footing with everyone else.
Why is the university defending this right and appealing all the way to the Supreme Court?
Once we were brought to court, this no longer was about an LGBTQ club, but our ability to make decisions for ourselves about our religious environment.
The plaintiffs have argued that YU is not a religious institution and, thus not empowered to decide matters pertaining to religion. In its ruling, the lower court pieced together an argument that creates a threatening precedent. The implications of this decision are deleterious to the very fabric of our educational system and we need to defend ourselves to protect our future.
What is at stake with this case?
Historically, the Jewish people have had deeply negative experiences with government interference in religious matters. When a court can decide that Yeshiva University is not religious enough to administer its own religious environment, then it's not just our institution’s future that is being threatened. In truth, this is not just a Jewish issue. Leaders of other faiths and leading legal scholars are similarly deeply concerned with this ruling. They understand that the consequences of this legal decision have severe implications for faith in America.
Hopefully we will be able to restore a just sense of religious liberty and return to a constructive dialogue with our students to work together to build an even more inclusive, loving campus environment that is a blessing to all of our students and a model of discourse and harmony to our society.
Yeshiva University e-mail, September 1, 2022
Yeshiva University Requests Stay on Order to Recognize LGBTQ Club from Supreme Court
By: Jonathan Levin
Yeshiva University filed an emergency appeal to the U.S. Supreme Court Monday, asking the court to grant a stay on an earlier court’s decision that ordered YU to immediately recognize the Pride Alliance as an officially sanctioned club until its appeal to the New York State Appellate Division is decided.
Coming a week after the lower court rejected YU’s appeal for a stay, YU is presenting its argument to the Supreme Court on grounds of its First Amendment rights to religious freedom.
“Yeshiva is now asking the Court to protect its religious mission from government interference,” a university press release stated. “In YU Pride Alliance v. Yeshiva University, a group of students are demanding that the University officially recognize an LGBTQ Pride Alliance club on campus. The lower court rulings would force Yeshiva to put its stamp of approval on a club and activities that are inconsistent with the school’s Torah values and the religious environment it seeks to maintain on its undergraduate campuses.”
YU is arguing that the lower court’s decision and statements about its religious identity were incorrect, and that university’s affiliation with Orthodox Judaism, its Jewish studies requirements and the tenants of Torah U’Madda mean that it is entitled to the religious freedom to “conduct its internal affairs in accordance with its religious beliefs.”
“Even though all undergraduate students are required to engage [in] intense religious studies,” the press release stated, “a New York Supreme Court judge held that the University is not sufficiently religious to enjoy constitutional and statutory protections for religious institutions, ordering Yeshiva to ‘immediately’ recognize the Pride Alliance club. Today, Yeshiva asked the United States Supreme Court for an emergency stay of that order pending appeal.”
Five of nine Supreme Court justices are required to grant a stay.
In April 2021, after two years of failed attempts at getting the club recognized through the normal club process, a group of former and current students sued YU and university officials in the Supreme Court of the State of New York, demanding that the court order YU to recognize The Pride Alliance as an officially sanctioned club, which it did this June.
Yeshiva University was ordered by Judge Lynn Kotler to “immediately grant plaintiff YU Pride Alliance the full equal accommodations, advantages, facilities, and privileges afforded to all other student groups at Yeshiva University.”
Immediately following the ruling, YU appealed the decision, and requested a stay on the decision from the appellate division of the Supreme Court of the State of New York, which would allow it to not recognize the YU Pride Alliance as a club until the appeal was decided. YU’s stay was denied on August 23.
“The Torah guides everything that we do at Yeshiva—from how we educate students to how we run our dining halls to how we organize our campus,” said Ari Berman, president of Yeshiva University, in the press release. “We care deeply for and welcome all of our students, including our LGBTQ students, and continue to be engaged in a productive dialogue with our Rabbis, faculty and students on how we apply our Torah values to create an inclusive campus environment. We only ask the government to allow us the freedom to apply the Torah in accordance with our values.”
Yeshiva University has had a case heard by the Supreme Court before. In National Labor Relations v. Yeshiva University, decided in 1980, the court ruled 5–4 in favor of YU in a case regarding the Yeshiva University Faculty Association.
The YU Pride Alliance did not immediately respond to requests for comment.
Elishama Marmon contributed to this story
A link to the press release can be found here
From the YU Commentator, August 29, 2022
Yeshiva University Receives $1 Million in Federal Funding to Renovate Weissberg Commons
By: Maureen Brennan
Yeshiva University has secured a $1 million federal grant to renovate Weissberg Commons, a central gathering place on YU’s Wilf Campus in the Washington Heights section of New York City.
The grant is part of the $1.5 trillion U.S. government spending bill signed into law in March. As part of that bill, U.S. Sen. Charles Schumer (D-NY) secured $314.1 million for key community development projects in New York, working closely with U.S. Rep. Adriano Espaillat, who secured a $11.5 million Community Funding Project for the (NY-13) district, of which the Weissberg Commons was a part.
The Community Funding Project is a historic omnibus appropriations agreement that responds directly to some of the most pressing needs in Washington Heights, Inwood, Harlem, East Harlem and the Bronx.
“We will use this funding to make Weissberg Commons a cutting-edge facility that will benefit both our students and the community alike,” said Rabbi Dr. Ari Berman, President of Yeshiva University. “The Weissberg Commons upgrades will greatly enhance our ability to host educational offerings for our students and serve as a central hub for community events. We are grateful to Senator Schumer and Congressman Espaillat for their work in securing these funds for Yeshiva University and helping to make this vision a reality.”
The funds will be used for structural improvements in the multipurpose event space located in Belfer Hall, including upgrading acoustics and lighting and modernizing audiovisual equipment.
“I am proud to have secured this funding for Yeshiva University, one of the world’s finest educational institutions – with students and faculty who are committed to making the world a better place,” said Sen. Charles Schumer. “Yeshiva’s Weissberg Commons is used to benefit the entire Washington Heights community with educational programming for public school students, as a site for COVID vaccinations and so much more. I will continue fighting for the federal resources to support Yeshiva University, its faculty and staff, students, and the broader community.”
“Yeshiva University is an epicenter of education in the Jewish community, both in the United States and around the world,” Rep. Adriano Espaillat added. “I am delighted to deliver this federal funding to assist in the renovation of the Weissberg Commons and help further the university’s mission as an educational institution and strong community partner.”
Throughout its history, Weissberg Commons has been used for a vast range of educational, political, public health and religious programming for both Yeshiva University and the greater Washington Heights community.
For example, Weissberg Commons has hosted Manhattan Community Board 12 meetings, served as the site of science education programming for public school students through YU’s START Science and most recently, served as a vaccination hub in the fight against COVID-19. It also hosts many YU student events, such as the Seforim Sale, which is the largest Jewish book sale of the year on campus.
From Yeshiva University News, May 10, 2022
Yeshiva University Fights for Its Freedom of Religion
By: Thomas B. Griffith
https://fedsoc.org/contributors/thomas-griffith
In recent years, a spate of lawsuits have asked whether, and to what degree, religious colleges and universities are free to craft policies consistent with their religious values, even when those policies are unpopular with those who don’t share those values. These decisions run the gamut from the mundane—whether to allow tobacco, alcohol, caffeine or meat on campus—to the headline-grabbing—how to structure on-campus housing arrangements or decide which student clubs get official school recognition.
In these lawsuits, student plaintiffs typically ask the court to force the school to abandon a longstanding religious principle in favor of a policy incompatible with the school’s faith. But as judges continue to evaluate the legal merits of these cases, it is important to consider the real danger to the First Amendment, and to the continued viability of religious schools, each time a suit like this succeeds.
For many religious traditions, religious schools help convey beliefs to new generations of faith and community leaders. But they also bring critical diversity to higher education and prepare students to weigh moral considerations of justice, mercy and kindness while in pursuit of stellar educations and professional careers. The Supreme Court reaffirmed this only months ago, noting that “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission” of religious schools. Not only is this blend of religious and secular learning the primary goal of a religious school; it is also the reason why hundreds of thousands of students voluntarily attend such institutions each year.
As a former general counsel at a religious university, I’ve seen the decisions religious schools must make about how best to form the students entrusted to their care. Religious schools help students make the transition into the adult world in ways that are not only consistent with their faith tradition’s moral understanding, but also compassionate and responsive to their students’ needs.
Decisions on how to strike this balance vary from institution to institution and from faith to faith, and those decisions may change over time as a result of prayerful study. Many may disagree, sometimes vehemently, over how the balance has been struck. As a former federal judge, I’ve seen how it is vital that these institutions remain free to make these decisions without government interference. If not, these laudable institutions will be presented with a Hobson’s choice: They can either continue to fulfill their mission of faith formation and pastoral guidance, or they can conform themselves to the government’s demands.
This pressure to conform is on full display in a case currently making its way up to the Supreme Court. In YU Pride Alliance v. Yeshiva University, plaintiffs have asked the lower courts to force Yeshiva to recognize an LGBTQ club on campus, which is inconsistent with Yeshiva’s interpretation of the Torah’s values. The New York courts agreed with the plaintiffs, denying Yeshiva’s repeated requests for a stay. With no other legal options available, Yeshiva is now asking the Supreme Court to step in and protect its religious identity once and for all. Whether right or wrong, and whether we agree or disagree with Yeshiva’s theology, the Supreme Court stated in Our Lady of Guadalupe School v. Morrissey-Berru (2020) that the First Amendment provides robust protections for the types of “internal management decisions” that are “essential to” the “central mission” of religious schools, including those related to spiritual formation.
These protections force the government to keep its hands off an area in which it has no competency—religious doctrine—and afford religious schools the flexibility needed to fulfill their unique role. This hands-off approach is good not only for the religious, but also for government, keeping courts, legislatures and agencies out of the business of supervising religious controversies. And of course it benefits the students, who remain free to choose schools that best meet their intellectual and spiritual needs. When evaluating the merits of these suits, judges and all who benefit from the separation of church and state enshrined in the Constitution must safeguard these bedrock First Amendment principles.
Mr. Griffith is a Washington lawyer and a lecturer at Harvard Law School. He served as a judge on the U.S. Circuit Court of Appeals for the District of Columbia, 2005-20.
From The Wall Street Journal, August 30, 2022
Are Jewish Colleges Illegal in New York City?
By: Dan McLaughlin
Jewish colleges illegal in New York City? One New York court’s ruling threatens to make that the law. The highest court in the state has refused to step in. On Monday, attorneys for Yeshiva University filed for emergency relief from the United States Supreme Court. The Court could rule any day on the application in Yeshiva University v. YU Pride Alliance. If it goes beyond ordering a temporary stay of the court order and takes the case to decide its merits, it could reach yet another momentous decision on religious liberty in the United States.
At issue, as has so often been the case since 2015’s decision in Obergefell v. Hodges, is whether religious believers will be forced to change the millennia-old tenets of their faith in order to accommodate 21st-century LBGTQIA+ ideology. Specifically, the YU Pride Alliance, a gay group, filed a lawsuit against Yeshiva University to be recognized as an official campus group for the first time. The university, after consulting with its senior rabbis, concluded that extending formal approval to a gay group would be inconsistent with its religious beliefs.
This is not some isolated, pretextual decision: As Yeshiva’s filings indicate, it is a pervasively religious college that imposes a great many requirements on its students, and on approval of student organizations, with the goal of forming them in the Jewish faith. It has refused to allow fraternities or student clubs involving shooting, video games, or gambling. As Yeshiva’s petition to the Supreme Court explains:
All Yeshiva undergraduate students are required to engage in intense religious studies, with many receiving up to four and a half hours of Talmud instruction each day. And the entire undergraduate experience is designed to form students in the Jewish faith: the laws of Shabbat and Kashrut are strictly observed on campus; there are separate men’s and women’s campuses; students are expected to dress and behave consistently with Torah values; the campuses are adorned with religious imagery and symbolism; and the affiliated Rabbi Isaac Elchanan Theological Seminary is integrated into the men’s undergraduate campus and programs. . . . All undergraduates are strongly encouraged to begin their Yeshiva experience with intensive religious studies in Israel, with over 80% doing so for university credit. . . . Yeshiva students living on campus . . . agree “to live in accordance with halachic [Jewish law] norms and Torah ideals.”
The YU Pride Alliance made explicit in its lawsuit that it was not merely seeking equal access to buildings on campus for internal meetings: Its openly professed goal was to use the imprimatur of Yeshiva approval to proselytize an argument for changing the school’s Torah-based religious doctrine on homosexuality. A sworn statement declared, as Yeshiva’s brief puts it, “that they are already actively planning Pride Alliance events for the fall 2022 semester, including plans to host school-sponsored LGBTQ ‘shabbatons’; prepare school-sponsored LGBTQ-themed Shalach manos (ritual packages for the Purim holiday); and make school-sponsored ‘Pride Pesach’ packages to celebrate Passover,” all with the intent to leverage Yeshiva’s religious prestige in order to “send a clear message” to the Jewish community at large for their own view of how Torah regards homosexuality.
Nonetheless, New York trial judge Lynn Kotler, an elected Democrat, ruled that Yeshiva is not a “religious corporation” within the meaning of the New York City Human Rights Law (NYCHRL), and that Yeshiva’s rights of free exercise of religion and free speech were not violated by compelling it to violate its own religious beliefs. (There is no Religious Freedom Restoration Act issue in the case because the Supreme Court struck down the law’s application to the states in 1997, and New York does not have a state-level RFRA.)
Judge Kotler applied a mechanistic and blinkered application of the “religious corporation” exception to the city’s Human Rights Law. That ruling is debatable at best as a matter of New York law. Judge Kotler declined to follow a decision by the state’s highest court finding that St. John’s University “has not abandoned its religious heritage,” arguing that the religious exception in the NYCHRL is narrower than the exception in the New York State Human Rights Law, which was at issue in the St. John’s case. Even if she is right about that, it illustrates that the NYCHRL is not — as she claims — adequate to protect the religious liberty of Yeshiva.
Judge Kotler ruled that Yeshiva is not really a religious, rather than an educational, institution. She relied on the fact that the university had changed its charter in 1967 to declare an educational primary purpose and that it now offers degrees in many secular subjects. She also decided that the university’s religious argument was compromised because some faculty dissented from the decision and because the university since the 1990s had permitted such groups in its schools of law and medicine, albeit with the acknowledgement at the time that “They do not proselytize” (emphasis in original) — exactly what YU Pride Alliance aims to do.
This is, on both grounds, an unreasonably crabbed view of what it means to be a religious believer or a religious institution. While Yeshiva trains rabbis, it also trains a great many other students who will have to earn their living in the wider world — as businesspeople, doctors, dentists, lawyers, scientists, social workers, teachers, and all manner of other occupations. No religion can long survive if it is permitted to train only ministers in the faith. The university’s greater willingness to compromise the purity of its religious message in its law and medical schools is, likewise, a real-world acknowledgement that graduate and professional schools aren’t colleges: They cater to students who have reached full adulthood and may, in many cases, be married people in their 30s with significant work experience who have likely already set themselves on their faith journey. As for the fact that some faculty disagreed with the decision, one must ask if the judge has ever met any university faculty, any religious believers, or any Jews. If religious authorities may require their believers to follow only those doctrines that nobody disputes, that would swiftly be the end of all forms of religious authority.
Yeshiva’s lawyers, in their request for the Supreme Court to enjoin Judge Kotler’s decision before the school year starts, rather pointedly cited the Court’s 1977 decision to grant emergency relief to protect the American Nazi Party’s march in the Jewish community of Skokie, Ill. Does a Jewish college have the same right to promote its own message as the Nazis? If the St. Patrick’s Day Parade can exclude a gay group that would dilute its message, why can’t a Jewish college? Can such a college even remain Jewish, in the religious sense, if it cannot control what religious message it sends to the young adults who come to Yeshiva seeking to prepare for a life in their faith?
Judge Kotler’s decision puts to the Court three deeper questions of doctrine arising from the Court’s 1990 decision in Employment Division v. Smith, which held that there is no First Amendment protection for religious exercise when the government aims to enforce “generally applicable” laws rather than discriminate against religious practice.
First, the Court has recognized a “ministerial exception” to Smith that exempts religious institutions from generally applicable laws when enforcing them would intrude into the hiring and training of clergy and other religious instructors. That exception was most recently applied by the Court in Our Lady of Guadalupe School v. Morrissey-Berru (2020) to the hiring and firing of Catholic schoolteachers, whether or not they are solely employed as religion teachers. The theory of this exception is, as I wrote when Guadalupe was decided, is that, “If the government can decide who the ministers are, it runs the church.” The flip side of the ministerial exception is that the state, which the Court has increasingly required to provide benefits to religious institutions on an equal basis with secular institutions, is not required to provide such benefits to the training of clergy or other religious instructors. The ministerial exception isn’t directly at issue in Yeshiva, but Guadalupe is cited repeatedly in Yeshiva’s brief because the exception reflects the particular importance of the role of religious instruction and leadership in the First Amendment context.
Second, the courts since Smith have been divided — without entirely definitive guidance from the Supreme Court — on what sort of individualized exceptions to a rule cause a rule to no longer be “generally applicable.” That was part of a vigorous debate by the Court in Fulton v. City of Philadelphia (2021). Yeshiva argues that the NYCHRL’s exceptions remove it from Smith, and that the Court needs to resolve splits in the lower courts on this question.
Third, should the Court overrule Smith as unworkable, inconsistent with prior precedent, and out of step with the original understanding of the First Amendment? That would be an ironic fate for an opinion by Justice Antonin Scalia. There are already three votes on the Court to do so, and Justices Brett Kavanaugh and Amy Coney Barrett indicated in Fulton that they were not closing the door to doing so, although they had concerns about what regime might replace Smith. Yeshiva explicitly asks the Court to take the case in order to overturn Smith. If it does take the case, expect a major battle over whether to do so.
Finally, of course, religious free-exercise cases have often, in recent years, ended up being decided as free-speech cases instead. That is likely to be the case in the 303 Creative case before the Court this term on when a religious website designer can be compelled to work for same-sex weddings.
There is plenty here for the Court to resolve, but if it turns away Yeshiva’s application, it will be the end of the right of religious Jews to operate a college in New York City that reflects their faith and passes it to the next generation.
Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.
From National Review, August 31, 2022, re-posted to Mosaic magazine with the title “Why the Case of the Yeshiva University Pride Alliance Matters for Religious Freedom in America,” September 2, 2022