An emergency appeal filed by Yeshiva University could be the opportunity for the Supreme Court to extend its string of religious freedom jurisprudence from last term and revisit one of its landmark precedents, Employment Division v. Smith, which set a sharp curb on religious practice.   

The Jewish school comes to the court seeking an emergency stay of a state court injunction ordering it to extend official recognition and “full and equal accommodations” to a Pride Alliance club for LGBT students. In the event that request is denied, it asks for a writ of certiorari to challenge both New York and federal law.     

“As a deeply religious Jewish university,” Yeshiva argues, it “cannot comply with that order because doing so would violate its sincere religious beliefs about how to form its undergraduate students in Torah values.” It asserts that sanctioning the club would “upend Yeshiva’s understanding of Torah.” 

That argument has not yet met with success at trial or before the Appellate Division. The trial court, leaning on the New York City Human Rights Law, found that the  government could force Yeshiva to recognize the club because the quantity of secular degrees it offers disqualifies it from the law’s express exemptions for “religious corporations incorporated under the education law.” 

Arguing against the lower court’s finding that the university’s structure excludes it from the circumference of protection for religious institutions, the school declares that “the entire undergraduate experience is designed to form students in the Jewish faith.” In that context, the Pride Alliance “would be inconsistent with Yeshiva’s religious environment and Torah values.”

To illustrate the point, Yeshiva’s brief includes images of students engaged in Torah study, mezuzahs appended to doorways, and mentions the policy that on campus the Friday workday ends at 2:30 PM to accommodate observance of Shabbat. It also showed a photograph of administrators studying Talmud at a basketball game.

That was not enough to carry the day at trial, as the decisive factor was that the schools “organizing documents do not expressly indicate that Yeshiva has a religious purpose.” Also counting against it were its range of “secular multidisciplinary degrees” and the evaluation that students attend the college for reasons other than “religious worship or some other function which is religious at its core.”

Yeshiva’s efforts to challenge the city human rights law, rather than just the court’s application of its provisions to its situation, were frustrated by the Empire State version of a high court decision that the school now wants to see overturned. 

Employment Division v. Smith, from 1990, turned on whether a state could deny unemployment benefits to a worker fired for using illegal drugs — in this case peyote — for religious purposes. In a 6-3 decision authored by Justice Antonin Scalia, the court explained that “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

To Yeshiva’s frustration, New York courts have held that the city human rights statute is one such “valid law,” and thus beyond the reach of appeal to the First Amendment’s Free Exercise Clause. Yeshiva implores the court to be guided by Hosanna-Tabor Evangelical Lutheran Church and School. v. EEOC, a unanimous decision from a decade ago that marks the high water mark of the court’s free exercise jurisprudence.

Hosanna-Tabor found “a ministerial exception grounded in the Religion Clauses of the First Amendment,” meaning that federal discrimination laws do not apply to the choice of religious leaders. This is a strong shield, but a narrow one, as other elements of religious organizations are not similarly protected.

A similarly expansive constitutional reading will be needed for Yeshiva to shut down the club that it it views as incompatible with its identity as a “deeply religious Jewish university.” Registration for student groups at Yeshiva ends September 12, by which time the school will have to comply with the court order if the Supreme Court does not intervene.