In the Matter of the YU Pride Alliance

My mother was apparently correct when she told me that, if you try hard enough, you can learn something new every day of your life. Just the other day, for example, I learned what a writ of certiorari is: the order of a higher court to a lower court that it, the lower court, provide its record in a given case so that the higher court may review it. Apparently, this is a regular feature of life at the Supreme Court and, indeed, I also learned that the Supreme Court issues writs of certiorari to select most of the cases it hears. Who knew?

The context in which I learned about certiorari is what I’d like to write about this week because it was just a few days ago that the Becket Fund for Religious Liberty, a legal advocacy group that promotes the free exercise of religion,  filed an emergency application with the U.S. Supreme Court on behalf of Yeshiva University asking that it either issue a writ of certiorari and/or stay a ruling issued by the New York State Supreme Court last June instructing YU to treat the YU Pride Alliance, a group serving the LGBTQ+ community at Yeshiva, as any other student group, i.e., by providing it with funding and with an on-campus meeting place. YU’s argument that the ruling requires the school to go against its own religious principles and is thus a violation of its First Amendment rights sounds rational, at least at first, and that point was made forcefully.

It turns out, slightly amazingly, that Yeshiva specifically amended its charter in 1967 to describe itself, not as a religious institution at all, but rather specifically as an educational one. And that was the crucial detail that prompted the lower court’s ruling: although it is true that religious corporations, including ones “incorporated under the education law,” are exempt from compliance with the New York City human rights law, YU’s decision specifically not to describe itself as a religious institution means that that exclusion specifically does not apply to them. This, at least to me, is a mere detail: no one with even a passing acquaintanceship with Jewish life in the United States would seriously argue that YU is not a religious institution. Its name implies as much. It houses a rabbinical seminary that trains modern Orthodox rabbis and is widely regarded as the flagship institution of modern Orthodoxy in America. So let’s say that the New York court’s ruling turned on a detail that itself feels negligible and inconsonant with reality as we know it. What then? Should its ruling be overturned? Does a religious institution have the right to engage in overtly discriminatory practices if it finds justification for those practices in its traditions and traditional practices? May the government step in to protect citizens whose human rights are being violated even if the violation in question is being carried out by a religious institution? These are the questions that the whole kerfuffle about the YU Pride Alliance bring to my mind. And all of them circle around the single issue that churns and roils at the center of the matter: does the Constitution permit the government to determine what is and what isn’t legitimate religious practice protected by the First Amendment?

I broached this topic last October when I wrote about the case of John Henry Ramirez, a former Marine who murdered a convenience store worker in Corpus Christi, Texas, in 2004 and then fled to Mexico, where he was eventually apprehended four years later. He was tried for murder, convicted, and sentenced to death. As the date of his execution drew closer, he sued the State of Texas over the fact that the state was refusing to grant his minister, the Reverend Dana Moore of the Second Baptist Church in Corpus Christi, the right not only to be present at his execution but also to lay his hands on Ramirez’s head and to pray with him as he was going to be put to death. When I wrote last year about this case, it was still undecided. But it is undecided no longer: Ramirez won in court and Texas was ordered to permit Reverend Moore to serve his congregant in whatever way his religious training dictates. Ramirez’s execution is scheduled to take place on October 5 of this year and will presumably take place as he prays with his minister’s hands set upon his head.

When I wrote about the Ramirez case (click here), I argued that the key issue here is not whether the laying-on of hands is or isn’t a legitimate part of the Baptist last-rites ceremony, but rather whether the government should have a voice in the discussion at all. I argued, I hope persuasively, that it should not. In my opinion, I wrote, the First Amendment should be understood not only to guarantee freedom of religion in the philosophical sense but also in the practical, and that the government should therefore never be empowered to decide what does or doesn’t constitute “authentic” religious behavior. I’m willing to accept exceptions to that rule in the extreme case: if a fundamentalist group were to embrace the biblical institution of slavery and argue that the Thirteenth Amendment prohibiting slavery was a violation of their civil rights, I would certainly not be supportive of that argument. But the Ramirez case was nothing like that and simply involved the State of Texas attempting to tell a Christian minister what does and doesn’t constitute a “real” Christian ritual. That is not something any American should find rational or reasonable.

Just lately, the Supreme Court has issued several rulings that seem, at least to me, to thin the famous wall between Church and State that is so foundational to our American republic.

In Carson v. Makin, the Supreme Court determined that the State of Maine was acting illegally in refusing school vouchers to parents whose children attended religion-based private schools. The argument was simple: those parents pay taxes, their children attend the school of their choice, parents whose children attend “regular” private schools get government assistance, so why shouldn’t parents whose children attend parochial schools? That this decision eroded the barrier between church and state seems obvious. But the Court felt that the importance of not discriminating against citizens because of their religious affiliation was the greater good. I feel conflicted about the decision. On the one hand, I certainly understand how helpful that kind of assistance could be for Jewish parents who send their children to day schools. But, on the other, feeling that no ultimate good can ever come—not for Jews and not for anyone—from eroding what was once considered the impermeable wall between Church and State. But especially not for Jews and other members of minority faiths!

In Kennedy v. Bremerton School District, the Supreme Court considered the case of a school district in Washington that fired a local football coach after he refused to abandon his practice of kneeling down in prayer at the end of every game and allowing students, if they wished, to join him. (Left unreported was whether he prayed after every game or only if his team won.) The school board felt that, since Coach Kennedy only engaged in Christian prayer, this practice was an offense against the Establishment Clause that forbids the government—in this case, a state-run public school—from endorsing one specific religion over any other. The Supreme Court felt otherwise, decreeing that the School District was wrong in, in effect, denying Coach Kennedy his right to speak freely. About this too, I have mixed emotions. Certainly, the coach’s practice must have appeared to most, or at least to some, to be a kind of official endorsement specifically of Christian prayer as opposed to the prayers of any other faith group. On the other hand, the notion that any citizen’s right to engage in prayer can or should be limited by governmental restrictions on religious activity in public places seems wrong to me. So here too I sit on both sides of the fence, wanting the wall between Church and State to be ironclad, but also wanting the government to keep its hands off religion entirely…and certainly not to dictate where and when individuals can say their prayers.

And that brings us back to the YU Pride Alliance. Should an American university—regardless of how it self-defines in terms of its theological or philosophical orientation—be permitted to engage in discriminatory practices against recognized groups that would be unequivocally illegal if that discrimination were to take place, say, in the workplace or in a public school? Or is the greater good served here by the government being prohibited from interfering in the behavior of religious institutions regardless of whether that involves behavior that would otherwise be illegal? (I reject as ridiculous the argument that Yeshiva University is not an Orthodox Jewish institution.) Is the greater good served here by allowing YU to sneer openly and, in my opinion, embarrassingly and unjustifiably prejudicially at its gay students if that is the price we must pay for religious institutions not having to answer to the government for their practices or standards? Or has society long since turned that corner with respect to the respect due gay people? We certainly wouldn’t tolerate the government looking away if a school, even a religious one, were to forbid its Black students or its Hispanic or Jewish ones to form affinity groups promoting their culture or history! To ask the question differently: is this really about the place of gay people in America or is really about the willingness of the government to regulate religion? In a sense, it’s about both.

In the end, I think the Supreme Court will probably endorse Yeshiva’s right to discriminate against its own gay students. But in such an instance, the challenge will then pass to the Jewish community itself: whether the government can or should regular religious institutions at all is one thing, after all, but it is another thing entirely to ask if the Jewish world will just shrug its shoulders and hope the issue just goes away…or stand up to speak with a united voice against YU’s misguided and unjustified decision to disenfranchise its own gay students for the sake of some unspecified religious principle. I suppose they must have one. But the one I suggest they adopt in its place come precisely from last week’s Torah portion: tzedek tzedek tirdof, Scripture enjoins the faithful: never ever tire in the pursuit of justice for all.