Because Yeshiva University (YU) has not yet exhausted the appeals process of lower courts, the Supreme Court recently declined to hear its challenge to a ruling by a New York State judge that the school must grant official status to an undergraduate club for homosexual students. Judge Lynn Kotler had determined that YU violated New York City’s human-rights law in refusing to recognize the group and is not entitled to a religious exemption because its articles of incorporation state that it is an educational, rather than religious, organization. Tal Fortgang comments:
At one level, Kotler’s analysis seems plainly right and reflects some poor decision-making on YU’s part. If only a “religious corporation,” one “created for religious purposes” under New York law, is exempt from anti-discrimination efforts, it is easy to see why Kotler reached the conclusion she did. “Religious corporation” appears to be a legal term of art that means a church, and YU is clearly not a house of worship (though it does at times function as one). When YU’s lawyers asked Kotler to take a “functional” approach to determine the university’s religious character, she had some good reasons to decline.
But to step back from the legal arguments for a moment is to clarify the clash of views that has come to a head in this case. . . . Her mistake arises in her understandable accession to New York law’s false choice between religious activity and education.
We can trace the false choice back to a more fundamental question: what is education? . . . To those who see education as a service, like providing insurance or fixing a sink, religion has no reason to enter the picture because particular views of the transcendent and good have nothing to do with what a university provides, which is ostensibly training to participate in the modern economy. (Taking that view seriously would counsel a host of changes to our model of higher education—about which much can and ought to be said.) But Jewish or not, institutions of higher learning are always in the business of suggesting that some pursuits are good and some are bad as defined by an implicit or explicit code.
Similar fault lines would emerge between Judge Kotler (and the Pride Alliance) and YU if posed a related question: what is religion? . . . Judge Kotler’s mistake, and the mistake of the plaintiffs and those who wish for YU to cave or to lose in this litigation, is forcing the false choice between education and religion. Plaintiffs think they are acting in accordance with New York City human-rights law’s mandate to be sweeping and progressive in eradicating discrimination, but actually they are sending the message that religious education is an unwelcome form of moral formation.