opinion
Why Mainstream Jewish Groups
Didn’t Defend Yeshiva University
BY JONATHAN S. TOBIN
T he latest exchange in the ongoing battle
between Yeshiva University and the YU Pride
Alliance, a student LGBTQ club, allowed for at least
a temporary ceasefi re between the two sides. But
the case continues to generate controversy, as the
status quo of other recognized groups continuing to
operate on the campus, while the gay club still seeks
equal treatment, remains.

YU stands a good chance of eventually prevail-
ing if, as expected, a decision on the merits of the
case is decided by the Supreme Court at some
point. But even if it does win, it may wind up losing
vital support from key donors.

The case has shown that in the confl ict between
two competing legal rights — that of the school to
religious freedom, and that of the gay club not to
be discriminated against — the mainstream Jewish
world clearly thinks the latter is the more important.

The law may ultimately be on the side of an
Orthodox school’s ability to govern itself according
to the religious precepts to which it is dedicated.

But, judging by the reaction to the case from the
organized Jewish world, which has largely distanced
itself from one of the country’s leading Jewish insti-
tutions, most Jews appear ready to sacrifi ce that
principle. Especially if solidarity with religious Jews
means putting them on the wrong side of a dispute
in which Jewish law is pitted against gay rights.

While Yeshiva University is a major force in
Jewish life and has an estimated endowment of
approximately $800 million, the argument over
YU Pride is demonstrating that, when push comes
to shove, it is in the same precarious boat as con-
servative Christian bakers and fl orists who have
found themselves under legal sieges because of
their opposition to gay marriage.

Though the courts can and should vindicate its
right to run its campus according to Torah prin-
ciples, the school is discovering that the price of
opposing a cultural consensus on gay rights may
be far higher than it is willing to pay.

The dispute began with the school’s saying that
it would not grant offi cial recognition to the group.

This led to a lawsuit, which the club won through
a decision by a New York state judge.

The court in question seized on a technicality
to rule that since Yeshiva was incorporated as an
educational, rather than a religious, institution, the
city’s laws forbidding discrimination against gays
mandated that it must recognize the club, even if
doing so violated the tenants of the Torah.

Yeshiva responded with litigation challenging the
16 OCTOBER 13, 2022 | JEWISHEXPONENT.COM
ruling as a violation of its right to religious liberty. Its
attempt to short-circuit the lengthy judicial process
by going to the Supreme Court narrowly failed.

The high court ruled 5-4 that Yeshiva must exhaust
all of its options for appeal under state laws before
turning to it for a ruling. However, Justice Samuel
Alito’s dissenting opinion not only made clear how
strong Yeshiva’s case was, but he predicted that
when, as the case inevitably will, return to the higher
body, there is every likelihood that the current 6-3
conservative majority will rule in the school’s favor.

If this legal tangle is ultimately resolved with
another reaffi rmation of the importance of the First
Amendment right of “free exercise” of faith, civil
libertarians should applaud. As legal authority and
veteran Supreme Court litigator Nathan Lewin wrote
in JNS, the law is clearly on the side of the school.

Religious freedom is under assault in an increas-
ingly secular society in which the left seeks not so
much to guarantee equal rights for members of
the LGBTQ community as it does to crush anyone
who dissents on the issue. In his opinion, Alito
asked, “Does the First Amendment permit a state
to force a Jewish school to instruct its students in
accordance with an interpretation of the Torah that
the school … has concluded is incorrect?”
His answer was, “Surely, no.”
The other conservative justices are likely to
agree, and they will be right to do so. If New York
can tell Yeshiva to ignore its beliefs and traditions
that are rooted in Jewish religious law, then no
one’s right to religious freedom, or to disagree
with prevailing cultural trends, is safe.

This is more than a legal dispute, of course. By
refusing to accept YU Pride, the school has placed
itself outside of mainstream cultural thought.

While gay marriage used to be a controversial
issue — with liberals like former President Barack
Obama swearing opposition to it as late as during
his 2008 presidential campaign — the pendulum
swung very quickly in the other direction.

The mainstreaming of acceptance of gays in
popular culture helped pave the way for the
Supreme Court’s 2015 Obergefell v. Hodges deci-
sion that legalized gay marriage in all 50 states.

Almost overnight, opposition to what had been a
highly controversial proposition vanished. Few, if
any, conservatives have any appetite to relitigate a
fi ght that they know has already been lost.

Those outlier individuals and businesses owned
by conservative Christians and Orthodox Jews who
continue to dissent have been able to get the courts
to defend their right to refuse to be compelled to take
part in gay marriages, as in the Masterpiece Cake
Shop v. Colorado Civil Rights Commission case.

Yet it is one thing for a lone baker or fl orist to
take such a stand and hope, with the help of cou-
rageous legal groups like the Becket Foundation,
the Jewish Commission on Law and Public Aff airs
and the Jewish Coalition for Religious Liberty, to
preserve their rights. It is quite another for a major
institution like YU, which seeks to play a signifi cant
role in the life of the country, to do so.

This was made clear by the news that one
of the school’s major donors, the Wilf Family
Foundations, for whom Yeshiva’s Washington
Heights main campus is named, has weighed in
against the school’s stand. That charitable group,
which is funded by a family with vast real-es-
tate holdings, as well as control of the National
Football League’s Minnesota Vikings, made clear
its displeasure, echoing the anger at the univer-
sity that was expressed by much of its graduate
faculty in non-religious subjects.

Yeshiva’s leaders seem to recognize that they
have isolated themselves from many of the phil-
anthropic and political forces that they could nor-
mally count on to back them. They have been at
pains to say that they welcome LGBTQ students
and want them to feel welcome, even if they
cannot grant offi cial recognition to their clubs or
otherwise treat their relationships as kosher.

This is why the silence of most Jewish groups
on Yeshiva’s dilemma is so troubling. It’s not just
that many liberal groups, such as the ADL, seem
now to believe that religious freedom is only worth
defending if the faith in question is aligned with
their secular donors’ beliefs.

By essentially abandoning the school to fi ght for
its rights with only the help of conservatives, they are
sending a message that Orthodox Jews are essen-
tially beyond the pale. It’s a signal that those who
dissent about gay issues should no longer be treated
as equal members of a society that no longer treats
their faith as legitimate. That’s not just dangerous
for a group that is already the target of an epidemic
of antisemitic hate crimes. It’s also the end of any
pretense that the Jewish community will defend one
of its denominations if it falls afoul of liberal fashion.

Thus, even if and when the courts back up YU, it
is likely to pay a high price — both where fundrais-
ing is concerned and in terms of political isolation
— that will have an enormous impact on its future.

You don’t have to agree with the school’s religious
principles on this or any other issue to understand
that the consequences of making an Orthodox uni-
versity a pariah in the public square in this manner
will ultimately be felt by all people of faith. JE
Jonathan S. Tobin is editor-in-chief of JNS.