Yeshiva University is in a lawsuit with some of its gay students in a case about discrimination that rose to the Supreme Court, and is hurting its reputation among progressives. Yet the case has nothing to do with discrimination, as it is about the inherent non-binary nature of modern Orthodoxy, something the progressive and LGBT community should understand.
A Modern Orthodox Institution
Yeshiva University is the flagship university of modern Orthodoxy in the world. Founded in New York City in 1886, the school has grown considerably, and now consists of three undergraduate schools – Yeshiva College for Men, Stern College for Women, and the Sy Syms School of Business – and numerous graduate schools.
While the entire university operates under a mission statement of providing an excellent education coupled with strong ethical and moral values, the undergraduate schools have a particular dual curriculum which stresses “the timeless teachings of Torah“, the Hebrew Bible and associated texts. The students learn Talmud, Mishnah, the Old Testament, the Prophets and various other texts for several hours every morning before focusing on secular studies. The long morning sessions are often rounded out by students with “night seder“, where they continue to study the ancient texts.
All of the discussions and classes are done through a modern Orthodox lens. Even beyond the school walls, the school posts old and new classes (shiurim) online on its YUTorah.org website for students, alumni and others. Rabbi Joseph B. Soloveitchick (1903-1993) has 525 classes on the site and Rabbi Dr. Aharon Lichtenstein (1933-2015) has 465. The rabbis are all modern Orthodox, many of whom were ordained at the university’s Rabbi Isaac Elchanan Theological Seminary (RIETS), its rabbinical school. The school even has a rabbinic placement office where it places rabbis in modern Orthodox schools and synagogues around the world.
The school acts as much more than a school for young Jews: it is very much part of the global modern Orthodox world.
No one questions the religious orientation of the school. Its mission statement is clearly laid out: “At Yeshiva University, our mission, Torah Umadda, is to bring wisdom to life through all that we teach, by all that we do and for all those we serve.” The phrase, “Torah Umadda” means Jewish commandments together with worldly knowledge. The term is emblazoned on the university’s logo in Hebrew, atop an outline of a Torah.
All Backgrounds Are Welcome
While the school is modern Orthodox, it does not limit admission to only Jews of that denomination. The Judaic part of the program has four tracks, enabling the students to find a level of study appropriate for their background and interest. For example, the James Striar School is designed “for students less familiar with Hebrew language and textual study.”
Students who attend the school typically come from modern Orthodox high schools and families but not exclusively. All of the students understand that regardless of their backgrounds, the school is run as a modern Orthodox institution. For example, while some students may not be strictly kosher in their homes, they will only find kosher foods in the school cafeteria. Even if they do not observe the Sabbath in their homes, they will be expected to do so in the dormitories.
The students have a Bill of Rights and Responsibilities which specifically calls out freedom of expression, association and from discrimination:
- “Students have the right to examine and exchange diverse ideas, consistent with the mission of the University, in an orderly, respectful and lawful manner inside and outside the classroom.”
- “Students have the right to associate and interact freely with other individuals, groups of individuals, organizations and institutions in a manner that does not infringe on the rights of others or interfere with the mission of the University.“
- “Students who are otherwise qualified have the right to participate fully in the University community without discrimination as defined by federal, state and local law.“
As seen in the selection above, students’ rights are protected, as long as they are consistent with the mission of the university, which is infused and directed by the modern Orthodox interpretation of the Torah. That is further qualified by being able to participate in the community, without discrimination as defined by U.S. law.
LGBT Students
As described above, all students are welcomed at the university. The YU student body does not exclude people because of race, religious denomination, sexual orientation, disability or any other feature. The school has LGBT students and faculty and everyone is allowed to participate in all activities. There is no activity that is open to straight or cisgender students that is not available to others.
The LGBT students at Yeshiva have a club called the Pride Alliance. It is a student run club that decided it wanted to become an officially recognized club by the university, which would enable it to have a small budget and access to email addresses and school facilities. The school declined to give the club official status because it viewed the club’s mission as not in concert with the university’s mission as a modern Orthodox institution. It would have denied officially recognizing the club if straight cisgender students applied for the LGBT club as well. The university rejected the club, not the students.
As there is no bias against any individual in the university, there is no basic argument for discrimination. Any claim for discrimination would therefore rest on an argument that the university singled out the LGBT club while permitting other similar clubs to get official recognition.
Club Recognition and a Torah Mission
The university mission rests on the modern Orthodox interpretation of the 613 mitzvot (commandments) in the Torah. The list is commonly broken down into 248 positive commandments (like honor one’s parents) and 365 negative commandments (do not commit adultery).
The 365 negative commandments include many related to idol worship, to defiling the Temple and religious holidays, financial matters and sexual relationships. The school does not endorse any club that runs afoul of these negative commandments.
For example, if students asked for official recognition of a shatnez club (garments made from wool and linen), the school would decline based on the Torah (Leviticus 19:20). If a group of students wanted to arrange a ghost and sorcery club, the school would have blocked its establishment (Leviticus 19:32, 20:6, 20:27). Similarly for cross-dressing (Deuteronomy 22:5) and various forms of incest (Leviticus 20:10-21).
Some progressive members of the Orthodox community argue that the prohibition in Leviticus 18:22 “Do not lie with a male as one lies with a woman; it is an abhorrence,” relates to male-male sexual relationships only, and has nothing to do with lesbians or passively being gay. As such, the school should allow the club if it abstains from discussing or promoting gay sexual relationships.
That solution is problematic on multiple levels.
The school does not monitor student clubs. Should it allow the club but insist on monitoring it, that action could actually run afoul of U.S. discrimination laws, as the school would uniquely be singling out the club for oversight. If the university just allowed the lesbian club at the women’s school, it might also run afoul of discrimination according to U.S. law, allowing a club for one gender but not the other.
The university’s approach has been to follow the same guidelines it expects from its students: “to associate and interact freely with other individuals, groups of individuals, organizations and institutions in a manner that does not infringe on the rights of others or interfere with the mission of the University.”
Is Yeshiva University Religious or Secular?
The legal case about discrimination seems very straight-forward, which begs why the courts did not dismiss the case quickly in favor of the university.
In June 2022, New York Judge Lynn Kotler said that the university is chartered as a secular organization and is therefore subject to the city’s human rights law barring discrimination based on sexual orientation. The court also said the university offers too many secular degrees to qualify for religious exemptions, and therefore the school must recognize the LGBT club.
Kotler is technically correct that the school did check off the secular box in its charter. However, the choice before the institution was binary, either secular of religious. Had there been a third choice of both, the school would definitely have chosen that, as consistent with its mission of Torah Umaddah, Jewish religious teaching and worldly knowledge.
The non-binary position of YU should be abundantly recognizable to progressives and the LGBT community. The LGBT Foundation has a page on its website for “Non-Binary Inclusion.” It is used for individuals who do not feel that the discrete choices of male/female apply to them: “Non-binary people feel their gender identity cannot be defined within the margins of gender binary. Instead, they understand their gender in a way that goes beyond simply identifying as either a man or woman.”
In a similar way, while secular Jews feel comfortable with the ‘secular’ label and ultra Orthodox / Haredi Jews like to be called ‘religious’, the modern Orthodox community does not fit neatly into either camp. It is both at the same time.
That fact is abundantly clear to the courts which are taking the narrow view of how the institution chose to designate itself according to the U.S. courts’ rigid charter choices, rather than acknowledging the reality that YU is both secular and religious, and cannot be compelled to officially recognize a club that is not in keeping with its reading of religious texts.
Progressive Activists Within Modern Orthodoxy
While the courts should be expected to ultimately understand the non-binary nature of YU, the LGBT students at YU know this better than anyone. Not only were they enrolled in an institution that lives the combined worlds of secular and religious everyday, many of the students live with their own duality of their sexual orientation within the university’s particular duality, like nested matryoshka dolls.
While it is undoubtedly understood, the progressive modern Orthodox community is looking to break the LGBT taboo.
While many non-Orthodox rabbis have begun to recognize gay weddings over the past few years, almost all Orthodox rabbis still do not officiate. Some progressive modern Orthodox rabbis have been trying to dance the line, congratulating gay couples from the synagogue bima, and some attend the wedding services, even when not officiating, in an attempt to welcome the individuals.
By pushing this matter in the courts, the LGBT and progressive communities are trying to force the entire modern Orthodox community to officially recognize the legitimacy of their relationships. It is a outcome that some in the modern Orthodox community are comfortable doing on a secular basis but almost all cannot on a religious basis.
Even more immediate and pressing, a great many socially-conservative members of the modern Orthodox community are appalled that the LGBT students have gone to the U.S. courts to force such a matter, and the progressive members of the community are angered at YU’s stance, as they would like to see a change in the community to accept such unions.
The New York and/or the Supreme Court will most likely decide in favor of YU in this case and that discrete matter will be settled. But the Jewish community must get past their internal anger and grievances on this topic, and appreciate that the modern Orthodox community is itself non-binary, and afford the rabbis and religious institutions the same grace and space it readily gives to non-binary individuals.
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{Reposted from the author’s blog}
