Yeshiva University Fights for Its Freedom of Religion Schools should be able to have policies consistent with their faith, even if they are politically unpopular. By Thomas B. Griffith
In recent years, a spate of lawsuits have asked whether, and to what degree, religious colleges and universities are free to craft policies consistent with their religious values, even when those policies are unpopular with those who don’t share those values. These decisions run the gamut from the mundane—whether to allow tobacco, alcohol, caffeine or meat on campus—to the headline-grabbing—how to structure on-campus housing arrangements or decide which student clubs get official school recognition.
In these lawsuits, student plaintiffs typically ask the court to force the school to abandon a longstanding religious principle in favor of a policy incompatible with the school’s faith. But as judges continue to evaluate the legal merits of these cases, it is important to consider the real danger to the First Amendment, and to the continued viability of religious schools, each time a suit like this succeeds.
For many religious traditions, religious schools help convey beliefs to new generations of faith and community leaders. But they also bring critical diversity to higher education and prepare students to weigh moral considerations of justice, mercy and kindness while in pursuit of stellar educations and professional careers. The Supreme Court reaffirmed this only months ago, noting that “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission” of religious schools. Not only is this blend of religious and secular learning the primary goal of a religious school; it is also the reason why hundreds of thousands of students voluntarily attend such institutions each year.
As a former general counsel at a religious university, I’ve seen the decisions religious schools must make about how best to form the students entrusted to their care. Religious schools help students make the transition into the adult world in ways that are not only consistent with their faith tradition’s moral understanding, but also compassionate and responsive to their students’ needs.
Decisions on how to strike this balance vary from institution to institution and from faith to faith, and those decisions may change over time as a result of prayerful study. Many may disagree, sometimes vehemently, over how the balance has been struck. As a former federal judge, I’ve seen how it is vital that these institutions remain free to make these decisions without government interference. If not, these laudable institutions will be presented with a Hobson’s choice: They can either continue to fulfill their mission of faith formation and pastoral guidance, or they can conform themselves to the government’s demands.
This pressure to conform is on full display in a case currently making its way up to the Supreme Court. In YU Pride Alliance v. Yeshiva University, plaintiffs have asked the lower courts to force Yeshiva to recognize an LGBTQ club on campus, which is inconsistent with Yeshiva’s interpretation of the Torah’s values. The New York courts agreed with the plaintiffs, denying Yeshiva’s repeated requests for a stay. With no other legal options available, Yeshiva is now asking the Supreme Court to step in and protect its religious identity once and for all. Whether right or wrong, and whether we agree or disagree with Yeshiva’s theology, the Supreme Court stated in Our Lady of Guadalupe School v. Morrissey-Berru (2020) that the First Amendment provides robust protections for the types of “internal management decisions” that are “essential to” the “central mission” of religious schools, including those related to spiritual formation.
These protections force the government to keep its hands off an area in which it has no competency—religious doctrine—and afford religious schools the flexibility needed to fulfill their unique role. This hands-off approach is good not only for the religious, but also for government, keeping courts, legislatures and agencies out of the business of supervising religious controversies. And of course it benefits the students, who remain free to choose schools that best meet their intellectual and spiritual needs. When evaluating the merits of these suits, judges and all who benefit from the separation of church and state enshrined in the Constitution must safeguard these bedrock First Amendment principles.
Mr. Griffith is a Washington lawyer and a lecturer at Harvard Law School. He served as a judge on the U.S. Circuit Court of Appeals for the District of Columbia, 2005-20.
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