Only in New York is a Yeshiva not religious

The precedent of case law has established a “religious exemption”: the state cannot, for instance, coerce Catholic seminaries into training female priests. As Tocqueville would have said if he’d visited America more recently, in America all legal conflicts become political ones in which the adherents of the red team or the blue team use the courts to hammer their enemies into submission, rather than split the cake of liberty in Solomonic style. The case of Jew vs Jew at state level will become a case of Republican vs Democrat if it goes to the Supreme Court.

“Any ruling that Yeshiva is not religious is obviously wrong,” Hanan Eisenman, a YU spokesman, told the New York Times. “As our name indicates, Yeshiva University was founded to instill Torah values in its students while providing a stellar education, allowing them to live with religious conviction as noble citizens and committed Jews.”

YU’s lawyer Eric Baxter, who works for the Becket Fund for Religious Liberty, argued YU requires all male students to study Torah for at least an hour a day, that every doorway on campus has a mezuzah, and that 80 per cent of the 6,000 students take up YU’s advice to spend a year at a yeshiva in Israel. Note: none of this apples to YU’s janitors. Don’t they also have a right to equal treatment as noble citizens on their own terms? YU Pride’s lawyer Katie Rosenfield argued that when YU altered its charter in 1967, it defined itself as “an educational corporation under the education law of the State of New York” that was “organised and operated exclusively for educational purposes.” The judge agreed. The charter was “not merely form over substance”: it was “the basis for licensure and the receipt of grants and other public funding”.

I‘ve written a few times on the Trump-era extension of Title VI of the Civil Rights Act to cover the civil rights of Jews. In these cases, Jewish groups rallied around Title VI to protect Jewish students against “anti-Zionist” agitation by left-wing and Islamist groups. But at YU, Title VI sets Modern Orthodox Jews against each other. YU may well win if it appeals to the Supreme Court. The Court leans right, and these days religious liberty is a right-wing issue. Last June, the Court endorsed the right of a Catholic social services agency in Philadelphia to refuse to foster children with same-sex couples.

YU and the Becket Fund can argue that the “educational purposes” in YU’s 1967 charter align “Torah and Science”, and in that order of priority. And precedent, Baxter says, establishes that a judge cannot “second-guess a religious institution’s religious activities when its religious activities are plain and obvious.” But its interactions with the secular state are no less obvious. Precedent also suggests that this case will deepen the gulf between Orthodox and non-Orthodox institutions, and deepen the divide between their adherents.

Dominic Green is a British historian based in Boston