What Christian Colleges Can Glean from the Supreme Court’s ‘Yeshiva’ Case
Written by TM of JC on September 19, 2022
The United States Supreme Court’s decision in Yeshiva University v. YU Pride Alliance may seem like it spells trouble for christian colleges that hold conservative positions on sexuality and gender identity.
After all, the court held that the orthodox Jewish university must formally recognize an LGBT student group. But a more complete reading of the decision forebodes a favorable outcome for christian higher education in the future.
The case was decided on what observers refer to as the Supreme Court’s “shadow docket,” where the justices make substantive rulings without oral arguments and competing legal briefs. Here, the justices ruled that Yeshiva University did not actually qualify for the court’s review, denying the university’s claim that a trial court order to recognize the student group violated its religious mission.
It would be easy to read this decision as a blow to the religious freedom of colleges with codes of conduct speaking to sexual orientation. But the ruling is a textbook example of the Supreme Court relying on process and requiring aggrieved parties to exercise all possible legal options before asking the highest court to weigh in.
Simply put, it’s a mistake to read too much into what the court would do if it were to decide this case in a holistic manner.
In Yeshiva, the 5–4 majority—including two conservatives, John Roberts and Brett Kavanaugh—held that the university had not yet exhausted its options in seeking to overturn a state trial court’s decision. Importantly, the justices reached no conclusion on the merits of the case, or what the outcome would be if they were evaluating the constitutional arguments in play.
Clues to the future of this case can be found in the decision’s dissenting opinion, from Samuel Alito and three other justices. “Does the First Amendment,” Alito begins, “permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely ‘no.’”
Alito goes on to say there are enough justices to grant the case full review (a case needs just four), and that Yeshiva “would likely win if its case came before us.”
There are many reasons to believe that Alito is right in claiming that, should this case reach the Supreme Court for full review, a majority of the justices would side with Yeshiva University.
First, the court’s recent record on religious freedom cases is squarely in line with Yeshiva’s arguments. From Fulton v. City of Philadelphia to Our Lady of Guadalupe School v. Morrissey-Berru to Carson v. Makin, the court’s most recent decisions involving the Free Exercise Clause have sided squarely with expanding religious freedom protections. Nothing in the details of Yeshiva herald a departure from this recent trend.
Second, this case would give the Supreme Court a clear opportunity to correct a head-scratching decision from 2010. In christian Legal Society v. Martinez, the court ruled that a University of California chapter of the christian Legal Society could not keep its school funding while denying leadership positions to students who didn’t affirm the chapter’s faith statement.
Martinez has been critiqued on Free Exercise grounds, yes, but also on other First Amendment grounds, including the freedom of assembly. Yeshiva seems like a reasonable way for the court to revisit this odd precedent, especially with just one justice from that majority coalition still on the bench.
Finally, Yeshiva would eventually give the Supreme Court another opportunity to balance the inevitable conflicts between religious freedom and LGBT rights. In Bostock v. Clayton County, the court held that sexual orientation and gender identity are covered by federal civil rights law, while also stating that the decision does not shrink religious freedom protections.
The judicial branch was poised to do what the legislative branch could not: Strike a compromise between these competing rights claims. A future decision in favor of Yeshiva University would be another step in this direction.
It’s tempting to respond to any Supreme Court decision in a knee-jerk fashion by decrying unfavorable outcomes as evidence of impending doom. In one recent article, First Liberty Institute lawyer Keisha Toni Russell interpreted the court’s Yeshiva decision as opening the door for “legalized ideological supremacy” against religious institutions.
Ben Shapiro called the decision an example of “the cultural imperialism of the Left.” And Yoram Hazony, chairman of the Edmund Burke Foundation, tweeted that “Orthodox Judaism can no longer be practiced freely in New York.”
Taking a step back, though, and looking at the bigger picture usually brings clarity. Though Yeshiva University did not get the outcome it wanted from the nation’s highest court, this is by no means the end of the story.
Should it exhaust its legal remedies at the state level, an appeal to the Supreme Court will be forthcoming. And as Alito noted, the court is well positioned to correct any decision that curtails the mission of a distinctly religious college—something Yeshiva’s