Squire Patton Boggs restructuring and insolvency partner Norman Kinel served as pro bono co-counsel for a large amicus group – consisting of law school professors, Jewish and non-Jewish organizations, rabbis and scholars devoted to justice and equality, including the rights of LGBTQ+ persons – in filing an amicus brief with the New York Supreme Court, Appellate Division, First Department (the “NY Appellate Division”) in the case of YU Pride Alliance, et al., vs. Yeshiva University and President Ari Berman. Norman worked with co-counsel David R. Kuney, an Adjunct Professor of Law at Georgetown University Law Center.
On December 15, 2022, the NY Appellate Division ruled in favor of YU Pride Alliance, rejecting Yeshiva University’s argument that it is a religious institution protected by the First Amendment and should be able to refuse to recognize the YU Pride Alliance—a student club for LGBTQ+ students—and unanimously affirmed the trial court’s issuance of a permanent injunction requiring that it recognize the student group as an official student organization.
The legal battle began with a discrimination suit filed by YU Pride Alliance against the university in April 2021. Under the NYC human rights law, only a “religious corporation” can discriminate, the suit argued—and as an officially nonsectarian institution, Yeshiva University did not qualify as such. On January 14, 2022, the Supreme Court of New York (the “NY Supreme Court”) held that Yeshiva University had violated the New York City Human Relations Law (NYCHRL) by refusing to recognize YU Pride Alliance.
After the NY Supreme Court’s ruling in the club’s favor, Yeshiva filed an application for emergency relief with the U.S. Supreme Court. A stay of the injunction was initially granted and then vacated, without prejudice to Yeshiva to return to the U.S. Supreme Court if it did not receive relief in the New York state courts. Thereafter, Yeshiva and YU Pride Alliance agreed to stay the order entered by the NY Supreme Court pending the exhaustion of all appeals, including to the Supreme Court of the United States.
On appeal to the NY Appellate Division, Yeshiva claimed that it is exempted from complying with the NYCHRL under the principle of “church autonomy,” which it argued immunized it from discrimination based on “internal decision making” by a church or religious organization. Yeshiva also argued that even if New York City law forbids such discrimination, it is exempted from compliance under the First Amendment to the U.S. Constitution’s “Free Exercise” clause.
Amici’s argued, among other things, that the NY Supreme Court correctly held that Yeshiva has held itself out as a secular institution, that it is not a religious organization, and thus cannot invoke a doctrine that is limited to churches (or other houses of worship) or “other religious organizations.”
In affirming the trial court, the Appellate Division held that Yeshiva is a public accommodation and thus is subject to the anti-discrimination provisions of the NYCHRL. It also rejected Yeshiva’s arguments that its discrimination against the LGBTQ+ students was protected by virtue of the Free Exercise Clause of the First Amendment.
Yeshiva University has indicated that it intends to appeal to the New York Court of Appeals, after which the parties can appeal to the U.S. Supreme Court, where it could become a landmark case.