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| Liberal Supreme Court Justice, Sonia Sotomayor (Reuters) |
The good news, however, was that the decision was not based on a denial of YU’s position. Which is that being forced to recognize that club was a violation of their First Amendment religious rights. It was only a rebuke for rushing to the Supreme Court before petitioning the lower courts first for relief.
In fact Justice Kavanaugh indicated that based merits of their petition, the court would probably rule in YU’s favor when the case s brought before them in its next regular session. While that is ultimately good news, the idea that YU must in the interim recognize the club’s legitimacy, puts them in the position of being forced to violate their religious beliefs.
On the other hand, as Phylissa Cramer reports in JTA:
Yeshiva University can block an LGBTQ student club while litigation pends on its right to do so, the U.S. Supreme Court decreed late Friday.
The decision, handed out late Friday, does not represent a judgment about whether the Modern Orthodox institution can prohibit the YU Pride Alliance permanently, as it is seeking to do. Still, it is a setback for LGBTQ students and advocates who had felt momentum was on their side after a New York court ruled that the university must recognize the club and a state appeals court said the university’s appeal was no cause for delay.
Justice Sonya Sotomayor, part of the court’s liberal minority, indicated in her opinion on the university’s request for an emergency ruling that the full court could take up the lawsuit in its next session. That would bode poorly for the students and others who have been seeking for years to form an official LGBTQ club at the university, as the court’s conservative majority has shown that it is inclined to side with petitioners alleging that their religious freedom has been infringed upon.
Again surprisingly - it was Sonya Sotomayor, a liberal justice that spared YU from being forced to do that for the time being. I am happy to hear that.
There has been an outcry by a lot of people on the left that consider YU's refusal to recognize that club a violation of its non sectarian status. As Cramer notes:
YU removed religion from its charter, essentially the text that gives it permission to operate in New York State, in 1967 in an effort to secure more state funding.
But non sectarian should not mean that an institution should become so sterile with respect to the religion the university is based upon - that it would deny them their First Amendment rights.
So what does it mean then for a school to be non sectarian if a religious value can creep in? In my view what makes a school non sectarian is to not discriminate against students of different sects – whether they be religious; racial; or based on sexual identity or orientation. To treat them all equally with respect to their academic rights – which is really what a university is all about.
Social clubs are by definition - not academic. They are granted recognition at the discretion of the school. A school should have the right to reject or accept a club based on whether it hurts or harms the school’s values.
This is how I see it. And hopefully this is how the now conservative court will see it now that religious rights have been restored to their rightful constitutional place. In this sense YU is certainly fulfilling its mission. I therefore completely reject the position taken by supporters of that LGBTQ club:
We are thinking about the students at Y.U. who have to go to class on Monday in a school that has painted them as an immediate threat,” Rachel Fried, executive director of the group Jewish Queer Youth, which has been supporting the Y.U. students, said in a statement. “The university has declared these students’ search for recognition and self-worth as a ‘religious violation’ causing ‘irreparable harm.’ No one deserves to feel unsafe at their own school. These brave students need our support now more than ever.
This is utter nonsense! YU does not in any way paint these students as a threat. They treat all students with equal dignity. No student that identifies as LGBTQ is denied any academic right. There is no discrimination and certainly no vilification. As YU’s president, Rabbi Ari Berman said:
We are pleased with Justice Sotomayor’s ruling which protects our religious liberty and identity as a leading faith-based academic institution…“But make no mistake, we will continue to strive to create an environment that welcomes all students, including those of our LGBTQ community.
There is no reason that any LGBTQ student should feel slighted because of what they must know is YU’s right to not recognize a club that by definition violates their religious values. Surely they must know that gay sex is forbidden by Jewish law. YU cannot possibly legitimize a club where gay sex is considered perfectly fine. As long as LGBTQ students have full academic rights and are welcomed equally with everyone else, they should indeed feel safe and secure. Not having a social club on campus does not detract from that.
Perhaps their real purpose is to go beyond having full academic rights and being treated equally with other students.. I believe they are looking for complete validation of an LGBTQ lifestyle. But YU whose values are based on Judaism’s defining document, the Torah - cannot do that.
To sum up, this isn’t about hate or equal rights for LGBTQ students. It’s about YU being able to conform with their religious values as guaranteed by the constitution - without harming the academic rights of students with different values. I think that’s the right approach.
