The Supreme Court of the United States decision in Yeshiva University vs. YU Pride Alliance may seem like a problem for Christian colleges that hold conservative positions on sexuality and gender identity.
After all, the court ruled that the Orthodox Jewish university must officially recognize a group of LGBT students. But a fuller reading of the decision portends a favorable outcome for Christian higher education in the future.
The case went to trial on what observers call the Supreme Court’s “shadow case”, where justices make substantive decisions without oral arguments or competing legal briefs. Here, judges ruled that Yeshiva University did not actually qualify for court review, rejecting the university’s claim that a trial court order recognizing the student group violated its mission. religious.
It would be easy to read this decision as an attack on the religious freedom of colleges with codes of conduct regarding sexual orientation. But the decision is a classic example of the Supreme Court relying on procedure and requiring aggrieved parties to exercise all possible legal options before asking the highest court to intervene.
In other words, it is a mistake to interpret too much what the court would do if it decided this case holistically.
In yeshivathe 5-4 majority – including two Conservatives, John Roberts and Brett Kavanaugh –tenuous that the university had not yet exhausted its options in seeking to overturn the decision of a state trial court. Importantly, the judges reached no conclusion on the merits of the case, or what the outcome would be if they weighed the constitutional arguments at stake.
Clues to the future of this case can be found in the dissenting opinion of the decision, by Samuel Alito and three other judges. “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 determined to be incorrect? The answer to this question is surely “no”.
Alito goes on to say that there are enough judges to grant a full review of the case (a case only needs four), and that the Yeshiva “would probably win if their case came before us.”
There are many reasons to believe that Alito is correct in asserting that, should this case come to the Supreme Court for full review, the majority of the justices would side with Yeshiva University.
First, the court’s recent record on religious freedom cases is entirely consistent with Yeshiva’s arguments. Of Fulton vs. City of Philadelphia at Our Lady of Guadalupe School v. Morrissey-Berru at Carson v. Makin, the court’s most recent decisions regarding the free exercise clause have squarely taken the side of expanding religious freedom protections. Nothing in the details of Yeshiva announce a break with this recent trend.
Second, this case would give the Supreme Court a clear opportunity to correct a jaw-dropping 2010 decision. Christian Legal Society v. Martinezthe court ruled that a University of California chapter of the Christian Legal Society could not retain funding for its school while denying leadership positions to students who did not affirm the chapter’s statement of faith.
Martinez has been criticized on free exercise grounds, yes, but also on other First Amendment grounds, including freedom of assembly. Yeshiva seems like a reasonable way for the court to revisit this strange precedent, especially with only one judge from this majority coalition still on the bench.
To finish, Yeshiva would potentially give the Supreme Court another opportunity to balance the inevitable clashes between religious freedom and LGBT rights. In Bostock v. County of Claytonthe court held that sexual orientation and gender identity were covered by federal civil rights law, while also stating that the ruling did not diminish religious freedom protections.
The judiciary was prepared to do what the legislature could not: find a compromise between these competing rights claims. A future decision in favor of Yeshiva University would be a further step in this direction.
It is tempting to respond to any Supreme Court decision impulsively by decrying adverse outcomes as evidence of impending doom. In a recent article, Keisha Toni Russell, attorney at First Liberty Institute interpreter courts yeshiva decision as opening the door to “legalized ideological supremacy” against religious institutions.
Ben Shapiro called the decision an example of “cultural imperialism of the left”. And Yoram Hazony, president of the Edmund Burke Foundation, tweeted that “Orthodox Judaism can no longer be practiced freely in New York.”
Stepping back, however, and looking at the bigger picture usually brings clarity. Although Yeshiva University did not get the result it wanted from the highest court in the land, that is by no means the end of the story.
If he exhausts his legal remedies at the state level, an appeal to the Supreme Court will be filed. And as Alito noted, the court is well placed to correct any decision that restricts the mission of a distinctly religious college – something Yeshiva lawyers appear achieve.
Time and time again, the Bible exhorts Christians to practice discernment. This is true when we seek God’s wisdom and our growth in the Holy Spirit, but it is also true in our interactions with the world. While the Supreme Court’s recent decision certainly wasn’t the optimal outcome for religious colleges and universities, the dynamics of the ruling mean it’s far from the end of the conversation.
In this context, Christians have the opportunity to be among the first to recognize a nuanced situation such as this, and to do so with the certainty that our hope ultimately lies elsewhere.
Daniel Bennett is associate professor of political science at John Brown University and associate director of the Center for Faith and Flourishing.
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