On June 14, the New York State Supreme Court, New York County (a New York state trial court), ruled that Yeshiva University (YU) and its president must “grant immediately to the YU Pride Alliance applicant the full and equal accommodations, benefits, facilities, and privileges granted to all other groups of students at Yeshiva University.¹

As Yeshiva had refused on religious grounds to recognize the Pride Alliance as the University’s official LGBTQ student group, the plaintiff had previously sought a preliminary injunction to compel the University to do so.² This request was refused in 2021 for failure “to demonstrate a likelihood of success on the merits at this stage”.³ The University argued at the time that it was a “religious society incorporated under the Education Act” – and therefore excluded from New York City’s human rights law ( NYCHRL) under the definition of “place or provider of public accommodation” in § 8 -102 – and therefore, since not covered by the NYCHRL, could not have violated it. Further, the University argued that if NYCHRL applies, that application violates the First Amendment. Both of these issues remained before the Court in this motion for summary judgment which followed the “limited discovery”.⁴

I. Religious Society/NYCHRL Exception

In addressing the question of whether Yeshiva University is “a religious corporation incorporated under the Education Act” and therefore excluded from NYCHRL, the Court first considered the statutory wording of the exception and the legislative intent behind it. Although the Court recognized that the University was incorporated under state education law, in answering the second prong of whether it was a “religious corporation”, it considered the University’s own documents, including the 1967 amendment to its Charter, which expressly stated that The Yeshiva is “a teaching society under the Education Act from New York State…” and “is and continues to be organized and operated exclusively for educational purposes[.]”⁵ Additionally, the Court reviewed a 2021 letter from faculty members of the University’s Cardozo Law School to President Berman, criticizing the University’s decision not to recognize the Pride Alliance and referencing the Yeshiva as “a non-sectarian institution of higher learning”.[.]”⁶ Finally, the Court cited a 1995 University fact sheet, which states that “Yeshiva University is subject to the New York City Human Rights Ordinance. . . [u]Under this law, YU cannot ban gay student clubs. It must make facilities available to them in the same way as it does for other groups of students.

The University tried to argue that the Court should apply a “religious function test” – that is, “look beyond [YU’s] own organizational documents, and to examine its “functions and attributes”” and to conclude that it is, in fact, a religious corporation within the meaning of the statutory exception. However, the court said that even if it accepted this argument, it would “achieve the same result”, because “the Yeshiva is a university that primarily provides education”. While the Court recognized that “[t]there is no doubt that the Yeshiva has an inherent and integral religious character that defines it and sets it apart from other schools and universities of higher learning[,]which does not make it a “religious corporation” except NYCHRL.^seven The Court rejected the University’s argument that “[y]ou cannot enter the campus or any [sic] batei midrash⁸ without recognizing that it is a sacred space for the students who study there. Instead, the Court held that “the record shows that the purpose of students attending Yeshiva is to obtain an education, not for religious worship or some other function that is essentially religious. Thus, religion is necessarily secondary to Yeshiva education.

The Court therefore denied the University’s motion for summary judgment on this issue and granted the plaintiff’s counterclaim for partial summary judgment “to the extent” that it found that Yeshiva University “is not a corporation religious” with the exception of NYCHRL.⁹

II. First Amendment

The next issue before the Court was whether the NYCHRL as applied violated Yeshiva’s First Amendment rights – specifically, Yeshiva’s religious autonomy, free exercise clause, free speech clause, and assembly clause. Noting that “[t]NYCHRL and the First Amendment are not incompatible” (internal citations omitted), the Court considered each of these arguments.

First, the Court found that “NYCHRL’s impact on Yeshiva’s practice of religion is only incidental to NYCHRL’s prohibition against discrimination”, because “NYCHRL is a neutral law of general application”.^ten Second, the Court rejected YU’s free speech argument, finding that “[f]formal recognition of a group of students does not constitute endorsement of that group’s message. (internal citations omitted). Finally, the Court also did not accept the argument of the University association, “since Yeshiva presented no evidence that the formal recognition of a group of LGBTQ students and / or the granting accommodations, benefits, facilities, and privileges at Yeshiva is inconsistent with the purpose of Yeshiva’s mission and will impermissibly impair Yeshiva’s assembly rights (internal citations omitted). denied the University’s motion to dismiss on First Amendment grounds.

Based on its analysis of the above two issues, the Court, among otherspermanently barred the University and its President “from continuing their refusal to officially recognize the YU Pride Alliance as a student organization because of members’ sexual orientation or gender and/or status, mission and/or activities of the YU Pride Alliance on behalf of LGBTQ students.As noted above, the Court also ordered the University “to immediately grant the claimant YU Pride Alliance the accommodations, benefits, facilities, and privileges full and equal granted to all other groups of students at Yeshiva University”.

Religiously affiliated colleges and universities located in New York City should take note of this decision and review their governance documents, policies, and practices. These questions are often complex and nuanced; among other things, as the Court noted, there may be institutions affiliated with a religion whose purpose, as stated in their statutes and/or other organizational documents, is religious, in which case a different outcome could be justified. As such, seeking the advice of a lawyer can be helpful.

This case is likely to be appealed where possible, potentially up to and including the United States Supreme Court, and Bond will continue to monitor it for any further developments.

^{1 Alliance v. Yeshiva University154010/21, 2022 WL 2158381, at *1 (NY Sup. Ct. June 14, 2022).
2 The University was represented by a law firm specializing in religious discrimination cases. See: https://yucommentator.org/2021/06/yu-defends-decision-to-reject-lgbtq-club-and-receive-government-funding-in-new-court-documents/; https://yuobserver.org/2022/02/pride-alliance-lawsuit-against-yeshiva-university-continues-in-court-hearing/.
3 Identifier. See also Alliance v. Yeshiva UniversityNo. 154010/2021, 2021 WL 3666264, at *1 (NY Sup. Ct. Aug. 18, 2021).
4 Alliance v. Yeshiva University154010/21, 2022 WL 2158381, at *1 (NY Sup. Ct. June 14, 2022).
5 Alliance v. Yeshiva University154010/21, 2022 WL 2158381, at *1, 3 (NY Sup. Ct. June 14, 2022).
(emphasis in original). The Court further noted that “the Yeshiva’s organizational documents do not expressly state that the Yeshiva has a religious purpose.”
6 Alliance v. Yeshiva Universityno. 154010/21, 2022 WL 2158381, at *1, *4 (NY Sup. Ct. June 14, 2022)
(emphasis in original).
7 “Yeshiva is a university that primarily provides pedagogical education. The religious character of the Yeshiva evidenced by the required religious studies, observance of Orthodox Jewish law, student attendance at religious services, etc. are all secondary to the primary purpose of the Yeshiva. ID. at 5.
Study of the 8 Houses of the Torah/Talmud
9 Identifier. at 6.
10 The Court “[a]sum[es] argue that Yeshiva’s refusal to recognize a group of LGBTQ students is part of its exercise of religion[.]” ID. at 7 O’clock.}

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