There must be a better way
The very first column I wrote for the Baltimore Jewish Times more than 40 years ago was about a case in which the Supreme Court held that Yeshiva University had the right to deny its faculty’s request to unionize (“Questioning the Supreme Court’s Yeshiva U. Ruling” — sorry, it was pre-digital days so no link). And all these years later, YU is again before the Supreme Court, this time arguing that it has the right to deny its LGBTQ students’ request to form a Pride Alliance club.
I’ve been following this case wearing two hats. One is that of a retired litigator who has read many of the lawsuit’s pleadings, briefs, and decisions. But this post isn’t about the complex legal issues debated in those papers. If you’re interested in an excellent article about that, I highly recommend Prof. Avi Michael Helfand’s analysis in last week’s Forward, “Illegal Discrimination or Illegal Freedom: Understanding Yeshiva University’s Case Against the YU Pride Alliance.” Avi and I don’t quite see eye to eye on certain church-state questions, but there’s no one better to lucidly explain the legal ins and outs of a case like this.
Here, I’m wearing the hat of a YU alumnus. I have many fond memories of my years there, a warm feeling toward my alma mater, and an understanding of how important that school — the flagship educational institution of the Modern Orthodox community of which I am a proud member — is to my community. Fond memories, warm feelings, and understanding, however, do not necessarily mean agreement with positions taken by its leadership. And that’s where I find myself once again, believing that the refusal to approve this club and going to the Supreme Court over this issue was unnecessary, wrong, and hurtful to vulnerable students.
Some background. After YU denied LGBTQ students’ request for approval of a Pride Alliance club, the students sued in state court claiming discrimination, won their case at the trial level, and obtained an injunction ordering YU to grant that approval. Although YU has taken an appeal, the order remains in effect unless stayed by a court, and the New York appellate courts have refused to issue a stay. YU then made a federal case out of this administration-student dispute by filing an emergency motion seeking a stay from the Supreme Court of the United States. As I write this, the motion remains pending.
One thing I learned from reading the legal papers is that YU’s attitude towards its LGBTQ students, at least as expressed in writing, is so much more welcoming today than it was when I was in school. As YU explained to the Supreme Court, it has “recently emphasized continued enforcement of its policies prohibiting ‘any form of harassment or discrimination’; updated its ‘diversity, inclusion and sensitivity training’ to better reflect concerns of LGBTQ students; ensured that there are staff in its counseling center ‘with specific LGBTQ+ experience’; ‘appoint[ed] a point person to oversee a Warm Line that will be available’ for anyone to ‘report any concerns pertaining to non-inclusive behavior’; and continued ‘to create a space for students, faculty and roshei yeshiva to continue this conversation.’”
Indeed, YU’s president, Rabbi Dr. Ari Berman, emphasized this in a recent email I received from him with FAQs about the case. (No, it wasn’t a personal email; R. Berman wouldn’t know me if I were sitting next to him in shul. Rather, I suspect I was one of thousands who received it by dint of my being an alumnus/(very minor) donor.)
“We welcome, love and care for all our students, including our LGBTQ students. We place a specific emphasis of importance on supporting our LGBTQ students. There are a number of ways we express this support, including hosting an LGBTQ support group, requiring LGBTQ sensitivity training to all of our rabbis and faculty and presenting public events so that all of our students better understand the experience of being LGBTQ and Orthodox. And, of course, we uphold our strong anti-bullying and anti-discrimination policies. We understand that a number of our LGBTQ students think YU should be doing more for them including establishing a student club. We had been engaged in a constructive dialogue with our students to work on building an even more inclusive campus experience.”
Wow. A breath of fresh air in the Modern Orthodox community.
If this actually is YU’s mindset, then the goals of the proposed club, as set forth in the club’s complaint and on its Facebook page, seem modest and inoffensive: “to provide a supportive space on campus for all students, of all sexual orientations and gender identities, to feel respected, visible, and represented and foster awareness and sensitivity to the unique experience of being an LGBTQ+ person at YU and in the Orthodox community.”
Note, the club is not about behavior. YU’s LGBTQ students, like its straight students, are not seeking the university’s imprimatur on what they do behind closed doors. Rather, the club is about support, respect, visibility, representation, and sensitivity. To me, that meshes well with YU’s official LGBTQ policies.
YU sees it differently, though, because, as it told the Supreme Court, “approving an official Yeshiva ‘Pride Alliance’ student club. . . would violate its sincere religious beliefs about how to form its undergraduate students in Torah values.” And it made this determination, as it wrote, “based on consultation with its Roshei Yeshiva – who opine on Jewish law for Jews all over the world – that an official Pride Alliance club, as described by [the students] and as understood by the culture at large, would be inconsistent with Yeshiva’s religious environment and Torah values.”
The brief delineates the activities allegedly inconsistent with YU’s environment: “hosting school-sponsored LGBTQ ‘shabbatons’; preparing school-sponsored LGBTQ-themed shalach manot (ritual packages for the Purim holiday); and making school-sponsored ‘Pride Pesach’ packages to celebrate Passover.” And it expands on its supposed inconsistency with Jewish values: “The message of Torah on this issue is nuanced, both accepting each individual with love and affirming its timeless prescriptions. While students will of course socialize in gatherings as they see fit, forming a new club as requested under the auspices of YU will cloud this nuanced message.”
Nothing about inconsistency with Jewish law, and rightfully so, because recognizing a Pride Alliance club does not violate Torah law. There’s no such law against having an LGBTQ sexual orientation or against helping students with that orientation feel comfortable and supported. While Jewish law (as understood by YU, an Orthodox institution) prohibits certain types of sexual behavior, behavior is not part of the club’s mission.
As for clouding YU’s nuanced message, I’d note that YU is an institution filled with a prestigious talmudic faculty and world-renowned Jewish scholars who often write on complicated issues of halacha and Jewish thought with erudition, precision, and enough nuance to fill a battleship. It’s a school whose president, R. Berman, is a top-notch Jewish scholar and intellectual, and whose speeches and articles explicate Torah law and values with depth, clarity, sensitivity – and nuance. These supremely capable and deeply serious thinkers and writers can surely find the words to clearly explain the Torah’s nuanced position as it relates to different attitudes between orientation and behavior.
I’m certainly no talmudic scholar, nor do I match Rabbi Berman’s knowledge or talents. But let me take a stab at what could have been a nuanced, positive response from YU to the request for a Pride Alliance club. (I’m sure others more adept at such statements could do a much better job, but I think you’ll get the idea.)
“YU is, and has always been, an institution defined by its adherence to Torah and Jewish law. This core value, emblazoned on its seal as Torah U’Madda, governs all of its decisions and actions. As such, YU cannot, and does not, support any group advocating for non-observance of Jewish law.
“YU also recognizes the diversity of its student body and the need for all of its students to feel welcome on its campuses and included in all university activities. Recently, a group of LGBTQ students has requested the formation of a Pride Alliance club whose goals seek a supportive space on campus for their members to enable them to feel respected, visible, and represented in our center of education. We, of course, want all our students to have such support and feel that way while attending our school, and we have therefore allowed the formation of this club.
“We emphasize that the club does not publicly advocate for, nor has it asked us to advocate for, any behavior that is forbidden by halacha. Our approval, therefore, does not in any way signify our support of any type of sexual activity prohibited by halacha. Rather, it is simply a recognition of the diversity of our student population and a desire to provide the best campus atmosphere for that diverse population and to meet their needs as fully as possible within the parameters of halacha.”
It could have been win-win. A win for the students, a win for YU, a win for Torah, halacha, and nuance, a win for sensitivity and understanding and compassion and tolerance. A win for a Modern Orthodoxy that seeks to open its doors to those who love Torah and are drawn to it, rather than circling the wagons to exclude those thirsting for what we provide.
And there’s more. R. Berman’s email takes this case beyond the narrow question of whether a Pride Alliance club should be allowed on campus. He notes that since the claim in the lawsuit against YU essentially is that YU does “not have the right to make our own decisions, the matter changed entirely from an LGBTQ discussion to defending the future of our institution … [and about] our ability to make decisions for ourselves about our religious environment.”
In other words, at this point the issue is not about an LGBTQ club or students, or Jewish law, or the school’s environment and values. Rather, it’s about an institution bristling about the government interfering with its right to make decisions about its campus and its students, including decisions that, while impacting on the way it views its religious environment and values, would be discriminatory in other forums. And that, YU believes, is not only a threat to its very future but that the “consequences of this legal decision have severe implications for faith in America” as well. Faith in America is on the brink because of a student club. Wow.
This problem, though, is really one of YU’s own making. It wasn’t being asked by students, or being told by a court, to hold egalitarian prayer services in its sanctuaries, serve non-kosher food in its cafeteria, or allow Shabbat desecration in its dormitories. It wasn’t being ordered to tear down its sukkot, replace matzah with bread on Pesach, or hang crucifixes in its beit midrash. I understand how those issues would threaten YU’s future, and why a fight to the death on such core values and halachic prescriptions might be necessary.
But it drew a line in the sand over allowing a club that would make some of its students feel more comfortable and secure – a goal YU’s own policies support; a club that wants to sponsor shabbatons and give out shalach manot and Pesach packages. That’s the issue about which it couldn’t find the wisdom to resolve outside a courtroom? That’s the issue over which it wants to stake its right to religious freedom?
Litigating this issue so aggressively was not only wrong and unnecessary, it was also deeply hurtful to its LGBTQ students who are among some of its most vulnerable, and who, as YU’s own policies dictate, deserve love and support and understanding. And yet, YU went to the Supreme Court of the United States – the Supreme Court! – to crush a club that is so very personal to the inner selves of some of their students. It has tethered its right to religious freedom to banning an inoffensive student club. This is hurtful, not supportive; callous rather than loving.
The relationship between the Modern Orthodox community and its LGBTQ members is a serious and difficult issue for my community; it’s one with which I’m sure we will continue to grapple over the next several decades. But in doing so, let’s deal with the wheat of real issues and not fight unnecessarily about the chaff of school clubs.
I learned as a lawyer that there’s almost always time for the parties to agree privately to a solution on the courthouse steps before a decision is handed down, and it’s often wise to do so. I sincerely hope that YU can still find a gracious exit from this dilemma that will show sensitivity to its students, bring glory to Torah, and allow its legacy to continue to flourish.