By: William McGurn – wsj.com – September 12, 2022
My father said something along the lines of “they are like us.” We didn’t have the slightest idea what he was talking about. What he meant was that their strong religious beliefs made them look strange to society—and as Catholics we did too, even if our views weren’t manifested in our clothing.
More than 60 years later, these words come back to me as Yeshiva University was granted an 11th-hour reprieve Friday by the Supreme Count. The school had filed an emergency petition with Justice Sonia Sotomayor on Sept. 2, hoping to stay a Manhattan judge’s order that the university grant official recognition to the Yeshiva University Pride Alliance in accord with New York City’s Human Rights Law. The school had decided an official LGBTQ student club wouldn’t be consistent with Torah values at the heart of its identity.
Yeshiva University isn’t just any Jewish school. It is the flagship institution of Modern Orthodoxy, committed to the idea that Jews can be at once fully Orthodox and fully engaged with the world. Arguably it is the sweet spot between Haredi Judaism, which tends to keep the outside world at bay, and Reform Judaism, whose embrace of modernity can over time erode Jewish distinctiveness.
New York says Yeshiva doesn’t qualify for a religious exemption. The argument seems to be that because it is incorporated as an educational institution—its motto is Torah Umadda, roughly, Torah plus secular knowledge—it can’t claim to be a religious institution and therefore has no right to an exemption.
What a cramped view this is, as if religion can be so easily separated into neat and distinct boxes—especially at a Jewish university. Ironically, that interpretation inadvertently bolsters the assumption shared by both Haredi Judaism and Reform Judaism: that if you want to be an Orthodox Jew in America you can’t be engaged with the modern world—though each tradition answers that challenge in very different ways.
But if people find themselves forbidden to bring their faith, tradition and insights to the public square, and with their own institutions, all America will be diminished. The constitutional issue is no less substantial: whether the state of New York, by insisting Yeshiva recognize the YU Pride Alliance, is trampling on the university’s free exercise rights under the First Amendment.
The Supreme Court stay is only a temporary reprieve. The high court has options in what to do next, including taking the case now or waiting to see what state courts do first. Justice Sotomayor was also the one who in 2013 issued a last-minute injunction halting enforcement of the Obama administration’s contraceptive mandate against the Little Sisters of the Poor. Like the Little Sisters, who ultimately prevailed, Yeshiva is being represented by the Becket Fund for Religious Liberty.
“The stakes couldn’t be higher, not just for Yeshiva but for the country,” says Mark Rienzi, the Catholic University law professor and Becket Fund president who represented the Little Sisters in 2013. “That’s why people of many different faiths filed briefs asking the court to protect Yeshiva. If Yeshiva can’t even make religious decisions on its own campus, then no religious group is safe from government control.”
This case also carries a sleeper. In its brief, Yeshiva University argued it’s time for the high court to reconsider its 1990 decision in Employment Division v. Smith. In that case, Justice Antonin Scalia famously wrote that the right to free exercise doesn’t relieve a person with religious objections from obeying a valid and generally applicable law. The brief calls this a “terrible foundation for free exercise jurisprudence,” and says it’s caused a great deal of mischief in the lower courts.
The general idea behind New York’s court ruling and human-rights law seems to be that a religious institution’s admission to American society can require the jettisoning of certain convictions when they clash with the prevailing secular orthodoxy. In this light, Yeshiva University’s insistence on Orthodox Jewish practice and principle looks hopelessly parochial.
But the Constitution offers a profoundly different understanding. The American promise isn’t only universal freedom for each man to worship God in his own way—but the right to come together freely to form self-governing entities to that purpose. That’s a kind of universalism too. And its reigning impulse is accommodation.
This is the universalism my father alluded to when he recognized a kinship with those Orthodox Jews on that Brooklyn corner so many years ago. The issue is only secondarily about who’s right about Jewish law, or whether the YU Pride Alliance should be recognized. The real issue is far more consequential.
It’s whether Jews—or any other religious community—decide such questions for themselves.
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