Photo Credit: Photo illustration credit: REM90

On the eve of the return to campus, Yeshiva University’s fight to withhold official recognition from an LGBTQ student group has moved all the way up the legal ladder to the U.S. Supreme Court.

In June, a New York judge found in favor of the YU Pride Alliance, ruling that based on its corporate charter documents, YU does not qualify as a religious institution entitled to an exemption under New York City’s anti-discrimination law. YU appealed the decision.


With the pride club’s campus membership drive already underway, and facing an imminent demand for the undergraduate division to implement the lower court’s ruling, YU sought a stay from New York’s Appellate Division First Department, where the appeal is pending. That request was denied, and the state’s highest court, the Court of Appeals, declined to review the matter.

So on Monday, YU petitioned the U.S. Supreme Court for an emergency stay. “Yeshiva is now asking the Court to protect its religious mission from government interference,” a university press release stated. “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.”

Eric Baxter

YU is represented by the venerable Becket Fund for Religious Liberty, which has successfully litigated other religious freedom cases before the Supreme Court. “When secular authorities try to tell Yeshiva University that it is not religious, you know something has gone terribly wrong.” said Eric Baxter, VP and senior counsel at Becket and lead counsel on the case. “The First Amendment protects Yeshiva’s right to practice its faith. We are asking the Supreme Court to correct this obvious error.”

“If Yeshiva is forced to comply, the infringement of its religious liberty, and injury to its reputation as a bastion of Torah values and flagship Jewish university, will be irreparable,” Baxter wrote in the emergency application. A stay would hold the lower court judge’s permanent injunction in abeyance until YU’s appeal of the underlying case is decided.

While the Supreme Court currently has a conservative-leaning majority and has supported free exercise of religion claims in other recent First Amendment cases, whether it will grant the requested relief cannot be predicted with certainty. The Jewish Press spoke to Baxter about the case and what’s at stake.


The Jewish Press: You have appealed to the U.S. Supreme Court for an emergency stay. Why is that important at this particular juncture? In the absence of a stay, what would YU have to do to not run afoul of the NY court decision when the new academic year opens in a few days?

Eric Baxter: A New York court has ordered YU to “immediately” recognize the club on pain of contempt. Club applications go through the student government, which opened up for applications on the 26th with a deadline of September 12.

The New York appellate court, the Appellate Division First Department in Manhattan, declined to grant YU a stay while the case is appealed, and New York’s Court of Appeals would not hear the matter. Considering the pivotal religious freedom issues at stake, did that surprise you? Do those decisions reflect animosity to religion?

The Appellate Division simply ignored Yeshiva’s arguments, even though Yeshiva presented a very strong case for protecting its religious liberty. The Court of Appeals rarely hears stay decisions, but we believe the emergency nature of this situation warranted a response.

The Supreme Court gets hundreds of emergency stay requests every day. Explain to us what the decision process on your application will entail. Will Justice Sotomayor, who handles New York case requests, decide the matter solo? Will there be a hearing? Under what circumstances would it go before the full nine-justice panel – and would that help or hurt your chances?

A single justice (in this case Justice Sotomayor) has authority to respond to Yeshiva’s application, but it is tradition for the justices to circulate applications like this to the whole court. There will not be a hearing, but we think the full court will weigh in on the decision, most likely sometime next week.

How likely do you think it is that YU’s application for an emergency stay will be granted? Do any recent religious liberty cases, ones the Becket Fund has handled or others, offer hints about how this Court will rule?

It is extremely rare for a state court to force a religious institution to make decisions about their internal religious affairs that would not be consistent with their religious beliefs. We think this gives the Court strong cause to issue the stay.

You also requested that the Supreme Court fast-track a review of the underlying case. How likely is it that the Supreme Court will proceed to hear the full appeal of the lower-court decision? How long until the case reaches its final resolution?

It’s possible that the court could hear the full appeal, but it is more likely to just grant a stay then let the case proceed through the normal appeals through the New York courts. It could be at least a couple of years before it gets back to the U.S. Supreme Court.

If your request for a stay is denied, what will your next step be? How can YU go forward within the constraints of the lower court decision without compromising its religious integrity?

Yeshiva needs immediate relief from the Supreme Court.

Why is this case so important to you and to the Becket Fund?

Our mission is to defend religious liberty for all. Yeshiva is the world’s premier Torah-based institution of higher education. It stands as one of the preeminent religious institutions of America. And for the Jewish community, of course, its role is crucial. Jews around the world look to Yeshiva’s rabbis for religious guidance, and Yeshiva’s students go on to become leaders in their own communities. We are committed to Yeshiva’s freedom to make its own decisions about how to apply Torah values on its own campuses.


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Ziona Greenwald, a contributing editor to The Jewish Press, is a freelance writer and editor and the author of two children's books, “Kalman's Big Questions” and “Tzippi Inside/Out.” She lives with her family in Jerusalem.