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`SUPREME COURTOF THE STATE OF NEW YORK
`NEW YORK COUNTY
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`PRESENT: HON. LYNN R. KOTLER, J.S.C.
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`Justice
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`PART__
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`8
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`YU PRIDE ALLIANCE etal.
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`~v-
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`YESHIVA UNIVERSITYetal.
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`, were read on this motion to/for
`The following papers, numbered 1 to
`Notice of Motion/Order to Show Cause — Affidavits — Exhibits
`Answering Affidavits — Exhibits
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`Replying Affidavits
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`inoex no. 154010/21
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`MOTION DATE
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`motion sea. no. 6 and 13
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`{ No(s).
`J No(s).
`| No(s).
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`Upon the foregoing papers,it is ordered that this motion is decided in accordancewith the accompanying
`memorandum decision/order.
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`
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`MOTION/CASEISRESPECTFULLYREFERREDTOJUSTICE
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`
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`FORTHEFOLLOWINGREASON(S):
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`Datea; June 4 2022
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`4. CHECK ONE: v.csccessssossccsssscesescestussvssessscnsossesucersussecsvssvess
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`[-] CASE DISPOSED
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`HO
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`J.S.C.
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`NROKOTLER
`J.S.C.
`(X} NON-FINAL DISPOSITION
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`2, CHECK AS APPROPRIATE:...s..ses00-aaeeeeseaesMOTION IS:
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`[_] GRANTED
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`LJ] DENIED
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`[X] GRANTEDIN PART
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`_} OTHER
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`3. CHECK IF APPROPRIATE: .......:ccccssoscossssscnecssonsseecorsnsusoness L SETTLE ORDER
`(_]DO NOT POST
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`Cj SUBMIT ORDER
`C] FIDUCIARY APPOINTMENT
`[JREFERENCE
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK: PART 8
`eexX
`YU PRIDE ALLIANCE, MOLLY MEISELS, DONIEL
`WEINREICH, AMITAI MILLER, and
`ANONYMOUS,
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`DECISION/ORDER
`INDEX No.:
`154010/21 -
`MoTSeQ:
`OO6AND 013
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`Plaintiff(s),
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`-against-
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`YESHIVA UNIVERSITY, VICE PROVOST CHAIM
`NISSEL, and PRESIDENT ARI BERMAN,
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`Present:
`Hon. Lynn R. Kotler, J.S.C.
`
`Defendant(s).
`eeaeeeeen woeeeeeeaeeeexX
`Recitation, as required by CPLR 2219 [a], of the papers considered in the review ofthis
`(these) motion(s):
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`Papers
`Motion Sequence 006
`N/Motion, exhs, Memo of Law 00.0... cece cceee terre etter nnn treet ead nnneeeeeeeeenenn ea 70-83
`Aff in opp, exhs, Memo of Law in Of— ......... ccc ce eee sere terri ntennneneerernenerereee rece 105
`Reply Aff, OxAS 0... cc ccccccccccccceeeeeeceeeeeeeeeeecceneaaaaaaaaeaeeeeaeeeeeeneeeeeeeeseneeeeeceseeeeeeeeeeseeeeeeees 107
`Decision/Order and Interim Order dated 8/18/21 00.0.0... cece cece ce eneeeee eee eee sea neeeneeeeeeees 117
`NiTTCe 0°)©)OF =>(0eee 188-229
`N/X-mot, affirm, exhs, Memo of Law...............cc cece eeeeee eee etteeeeeeeeeeean nee eteeeeeeeeaneel 230-272
`Sur-reply, Memo Of LAW ou... ccc ceeececeee eect eee eeeennneeee eee tere eter prt nnneeeunneeeereeeeeneeea 277-300
`2/10/22 Transcript ..........0..ccccccceceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeaeaaeeeeeeeas cece cca seeeeeeeeeeeaaaaeeteeeres 325
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`Numbered
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`Motion Sequence 013
`N/Motion, exhs, @Micusbrief oo... cece cece ecccceeeeeeeeeeeseeeeceneeeeeeeeaeaeeseeaaeeeeneaea 308-324
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`Two motions are pendingin this action (sequence 6 and 13) and are hereby
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`consolidated for consideration and disposition in this single decision/order. Previously,in
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`a decision/order and interim order dated August 8, 2021 (the “prior decision”), the court
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`converted defendants’ motion to dismiss (Sequence 6) to a motion for summary
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`judgment pursuant to CPLR § 3211(c). Plaintiffs then cross-moved for partial summary
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`judgment and a determination that defendant Yeshiva University (“Yeshiva”) is not a
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`“religious corporation” as the term is used in Admin. Code § 8-102’s definition of a
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`“Place or provider of public accommodation’. In motion sequence 13, The Lesbian and
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`Gay Law Association Foundation of Greater New York (“LeGaL”) movesfor leave to
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`submit a brief of amicus curiae. LeGaL’s motion is submitted without opposition and is
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`granted. As for sequence 6, defendants’ motion is denied, andplaintiffs’ cross-motion is
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`granted asfollows.
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`The prior decision is herein incorporated by reference. As the court stated
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`therein, Yeshiva refuses to formally recognize plaintiff YU Pride Alliance, an LGBTQ
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`student organization. The remaining plaintiffs are former students and an anonymous
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`current student. The remaining defendants are Vice Provost Chaim Nissel and
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`President Ari Berman ofYeshiva.
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`The prior decision was issuedin the context of plaintiffs’ application for a
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`preliminary injunction for an order compelling Yeshivato officially recognize the YU
`Pride Alliance as an LGBTQ studentorganization. The court denied plaintiffs’ motion for
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`injunctive relief becauseplaintiffs had failed to demonstrate a likelihood of success on
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`the merits at that juncture. In tandem, defendants argued thatplaintiffs claims were
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`untenable under the New York City Human Rights Law, Admin Code § 8-101, et seq.
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`(the “NYCHRL”), because Yeshiva falls within an exception to its application.
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`Defendants further argued that if the NYCHRL applies to them, such application is
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`unconstitutional. However, defendants’ motion was based upon facts and proof which
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`could not be properly considered on a CPLR § 3211 motion to dismiss. Afterlimited
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`discovery, the issue of whether the NYCHRLapplies to Yeshiva is ripe for summary
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`adjudication and the present motion sequenceis now before the court.
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`Discussion
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`Applicable standard of review
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`On a motion for summary judgment, the proponent bears the initial burden of
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`setting forth evidentiary facts to prove a prima facie case that would entitle it to
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`judgmentin its favor, without the needfora trial (CPLR 3212; Winegrad v. NYU Medical
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`Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).
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`If the proponentfails to make outits prima facie case for summary judgment, however,
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`then its motion must be denied, regardless of the sufficiency of the opposing papers
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`(Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v. Gervasio, 81 NY2d 1062
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`[1993}).
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`Granting a motion for summary judgmentis the functional equivalentof a trial,
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`therefore it is a drastic remedy that should not be granted where there is any doubt as
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`to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]).
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`The court’s function on these motionsis limited to “issue finding,” not “issue
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`determination” (Silliman v. Twentieth Century Fox Film, 3 NY2d 395 [1957]).
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`Is Yeshiva a Religious Corporation under Admin Code § 8-102?
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`This motion turns on whether Yeshivais a religious corporation within the
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`meaning of the NYCHRL.Atfirst blush, the answerto this question may seem obvious
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`given Yeshiva is an educational institution with a proud and rich Jewish heritage and a
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`self-described mission to combine “the spirit of Torah” with strong secular studies.
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`However, the court must examine the precise language of the NYCHRL exemption
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`which Yeshivarelies on, Admin Code§ 8-102, as well as the legislative intent, and
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`determine whether Yeshivais a religious corporation exempt under the statute as the
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`Plaintiffs have sued Yeshiva as a “place or provider of public accommodation”
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`pursuant to Admin Code § 8-107(4) and (20). This statute provides in relevant part as
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`follows:
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`4. Public accommodations.
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`a. It shall be an unlawful discriminatory practice for any person who
`is the owner, franchisor, franchisee, lessor, lessee, proprietor,
`manager, superintendent, agent or employee of any place or
`provider of public accommodation:
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`1. Because of any person's actual or perceived race, creed, color,
`national origin, age, gender, disability, marital status, partnership
`status, sexual orientation, uniformed service or immigration or
`citizenship status, directly or indirectly:
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`(a) To refuse, withhold from or deny to such person the full and
`equal enjoyment, on equal terms and conditions, of any of the
`accommodations, advantages, services, facilities or privileges of
`the place or provider of public accommodation; ...
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`20. Relationship or association. The provisionsof this section set
`forth as unlawful discriminatory practices shall be construed to
`prohibit such discrimination against a person because ofthe actual
`or perceived race, creed, color, national origin, disability, age,
`sexual orientation, uniformed service or immigration orcitizenship
`status of a person with whom such person has a knownrelationship
`or association.
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`Meanwhile, Admin Code § 8-102, which sets forth the definitions of terms used
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`under the NYCHRL,defines place or providers of public accommodation as follows:
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`The term “place or provider of public accommodation” includes
`providers, whetherlicensed or unlicensed, of goods, services,
`facilities, accommodations, advantagesorprivileges of any kind,
`and places, whetherlicensed or unlicensed, where goods, services,
`facilities, accommodations, advantagesorprivileges of any kind are
`extended, offered, sold, or otherwise made available. Such term
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`does notinclude any club which provesthatit is in its nature
`distinctly private. A club is notin its nature distinctly private if it has
`more than 400 members, provides regular meal service and
`regularly receives payment for dues, fees, use of space, facilities,
`services, meals or beveragesdirectly or indirectly from or on behalf
`of non-membersfor the furtherance of trade or business. For the
`purposesofthis definition, a corporation incorporated under
`the benevolent orders law or described in the benevolent
`orders law but formed underany otherlaw of this state, ora
`religious Corporation incorporated under the education law or
`the religious corporation law is deemedto bein its nature
`distinctly private. No club that sponsors or conducts any amateur
`athletic contest or sparring exhibition and advertises orbills such
`contest or exhibition as a New York state championship contest or
`uses the words “New York state” in its announcementsis a private
`exhibition within the meaning ofthis definition.
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`(Emphasis added.)
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`The NYCHRL expressly excludes “a religious corporation incorporated under the
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`education law” from application of the NYCHRL prohibition of discrimination by places or
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`providers of public accommodation. Yeshiva asserts thatit is a religious corporation
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`incorporated under the education law.If that is the case, then plaintiffs do not have a
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`claim under the NYCHRL against Yeshivaforfailure to officially recognize YU Pride
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`Alliance.
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`There is no dispute that Yeshiva is incorporated under the education law. Thus,
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`the court must determine whether Yeshivais a religious corporation as defendants
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`contend. This court finds that it is not. Defendants’ position conflicts with the fact that
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`Yeshiva’s own Amendmentto its Charter adopted December 15, 1967 provides as
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`follows:
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`1. This corporation, incorporated as The Rabbi Isaac Eichanan
`Theological Seminary Association under the Membership
`Corporations Law of the State of New York on March 20, 1897, the
`name of which was subsequently changed by the Regents of the
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`University of the State of New York to Yeshiva University, is hereby
`continued as an educational corporation under the Education
`Law of the State of New York...
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`9. Yeshiva University is and continues to be organized and
`operated exclusively for educational purposes...
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`(Emphasis added).
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`Defendants would have this court look beyondits own organizing documents and
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`examineits functions and attributes to determinethat it is a “religious” corporation as
`that term is used in the Section 8-102 exemption. Meanwhile,plaintiffs point to the
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`Religious Corporations Law definition of a religious corporation. Defendants correctly
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`assert that the RCL definition is not outcome determinative since it would render the
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`exemption duplicative insofar as it exempts both religious corporations organized under
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`either the RCL or Educational Law. The court cannot ignore, however, the RCL definition
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`or caselaw that seeks to define religious corporations.
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`A Religious Corporations Law corporation is a corporation created for religious
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`purposes (RCL § 2). RCL § 2 further defines incorporated and unincorporated churches,
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`clergyman and ministers and funeralentities. Both types of churches are defined as
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`enabling people to meet for divine worship or other religious observances. Two Second
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`Department cases have also defined corporations as religious when the certificate of
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`incorporation specifies religious purposes such as “a place of worship” (Temple-Ashram
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`v. Satyanandji, 84 AD3d 1158 [2d Dept 2011]) and “to provide religious services and
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`services to senior citizens” (Agudist Council of Greater N.Y. v. Imperial Sales Co., 158
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`AD2d 683 [2d Dept 1990)).
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`Yeshiva’s organizing documents do not expressly indicate that Yeshiva has a
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`religious purpose. Rather, Yeshiva organizeditself as an “educational corporation” and
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`for educational purposes, exclusively. Defense counsel's arguments about the
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`implications of this court’s ruling are overblown. Every schoolwith a religious affiliation
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`or association is not necessarily affected by this court’s determination that Yeshiva is not
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`exempt from the NYCHRL. Rather, the inquiry must focus on the purpose ofthe
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`institution, which is typically expressed in a corporation’s organizing documents. There
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`may be schools organized under the education law that have stated a religious purpose
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`so that they are exempt from the NYCHRL under Section 8-102. Since Yeshiva has not
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`doneso, the court does not need to reachthis issue.
`Indeed, defendants concede that Yeshiva’s amended charter represented a
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`departure from its initial charter which stated an exclusively religious purpose, to wit, “to
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`promote the study of Talmud”. Then, in 1967, Yeshiva amendedits charter to state thatit
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`“is and continues to be organized and operated exclusively for educational purposes’.
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`The court rejects defendants’ contention that Yeshiva’s amendedcharter confirmed “that
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`the original religious education purposescarried through”. Yeshiva itself broadened the
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`scope of education it was to provide; pursuant to the amended charter Yeshiva was now
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`authorized by the State of New York to confer degreesof: [1] Doctor of Hebrew
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`Literature; [2] Bachelor of Arts; [3] Bachelor of Science; [4] Doctor of HumaneLetters;
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`[5] Doctor of Laws; [6] Bachelor of Hebrew Literature; [7] Master of Hebrew Literature;
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`[8] Bachelor of Religious Education; [9] Master of Religious Education; [10] Masterof
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`Science; [11] Doctor of Philosophy; [12] Doctor of Medicine; [13] Doctor of Dental
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`Surgery; [14] Masterof Art; [15] Doctor of Education; [16] Master of Social Work; [17]
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`Associate in Arts; and [18] Doctor of Religious Education. The court finds that Yeshiva’s
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`educational function, evidenced byits ability to now confer many secular multi-
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`disciplinary degrees, thus became Yeshiva’s primary purpose. Evenif Yeshivastill
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`“promote[d] the study of Talmud”, that does not necessarily make Yeshiva a religious
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`corporation as that term was intended by the City Council when it enacted Section 8-
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`102.
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`In a letter dated April 27, 2021 from faculty members of the Benjamin N. Cardozo
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`School of Law to defendant Berman, the authors write:
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`As members of the Yeshiva University community, the fifty-one
`undersigned faculty members of Benjamin N. Cardozo Schoolof
`Law write to express our dismayat the University’s continued
`refusal not to allow undergraduate students to form a group
`devoted to building community and support for LGBTQ+ students.
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`... Indeed, at Cardozo, where LGBTQ+ students are a vital part of
`our community, with an active and engaged student group, no such
`discrimination is practiced or tolerated. We find it unacceptable that
`our parent University would adopt such a hurtful policy towards the
`undergraduate student body.
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`The University’s decision also is unlawful under federal, state, and
`city civil rights laws, all of which prohibit discrimination on the basis
`of sex and sexual orientation. As a non-sectarian institution of
`higher education, the University must abide by these
`proscriptions. We understand that the University cameto the
`same conclusion more than 25 years ago — concluding thatit was
`required by antidiscrimination laws to afford equal treatmentto
`LGBTQ+ students — and the legal protections for LGBTQ+ people
`have significantly strengthened since that time.
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`Faculty members, law professors even, within Yeshiva’s own community
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`recognize that Yeshivais not a religious corporation and is subject to the NYCHRL.
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`Further, Yeshivaitself has long acknowledged that it was subject to the NYCHRL.
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`A 1995 fact sheet about gay student organizations at Yeshiva prepared by Yeshiva as
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`per a September 5, 1995 letter from David M. Rosen, Director of Yeshiva’s Department
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`of Public Relations, provides in pertinent part as follows:
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`1.
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`I’ve read that there are “gay student clubs” at some of Yeshiva
`University’s graduate schools.Is this true?
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`Yes. A handful of students at two graduate schools have formed organizations
`— sometimes referred to as “clubs” — to discuss issues of concern to the gay
`community.
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`. Which schools have these clubs? How many students are involved?
`Whatdo they do?
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`Gay student clubs exist at Benjamin N. Cardozo School of Law and Albert
`Einstein College of Medicine. Informal groups with similar interests have met
`sporadically at Wurzweiler School of Social Work and Ferkauf Graduate
`School of Psychology. The student bodies of these graduate-level,
`professional schools are co-educational and diverse ethnically, religiously,
`and racially. Altogether about three dozen out of YU’s 5,000 students are
`involved. Their activities generally involve informational and educational
`meetings. They do not proselytize. These groups have existed for years but
`went largely unnoticedprior to the recent spate of distorted media reports.
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`. Given the strong prohibition against homosexual behavior in Jewish
`law, why does YU permit gay groups on campus?
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`Yeshiva University is subject to the humanrights ordinance of the City of New
`York, which provides protected status to homosexuals. Underthis law, YU
`cannot ban gay student clubs. It must makefacilities available to them in the
`same mannerasit does for other student groups.
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`At oral argument, defense counselproffered “Yeshiva would be happyto stipulate
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`to adding a more direct statementofreligious purposein its charterif plaintiffs would
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`agree to dismiss the case.” This assertion concedesthe point. Yeshiva’s charteris not
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`merely form over substance. Its corporate purposeis the basis forlicensure and receipt
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`of grants and other public funding. Asplaintiffs learned during the course oflimited
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`discovery, Yeshiva submitted various forms to governmental agencies whichbelie its
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`contention in this action that it is a religious corporation. In 2018, Yeshiva reported in
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`Form CHAR410 to the New York State Department of Law, Charities Bureau, that it was
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`an “educational institution, museum orlibrary incorporated under the NY State
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`Education Law or by special act” rather than an “organization [] incorporated under the
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`religious corporations law or is another type of organization with a religious purpose or
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`is operated, supervised or controlled by or in connection with a religious organization”
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`(emphasis in original). Yeshiva’s Director of Tax & Compliance, Alan Kruger, testified
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`that Yeshiva registered as an educational corporation and not a religious corporation
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`because “it would bedifficult” to produce documents showing entitlementto the latter
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`exemption.
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`In a letter dated February 16, 2021, Jon Greenfield, Director of Government
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`Relations at Yeshiva, wrote to Senator Robert Jackson requesting New York State
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`capital construction funding. Greenfield identified Yeshiva as a “501[c][3] not-for-profit
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`institution of higher learning...”, not a religious corporation. How Yeshiva represents
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`itself is not merely “form over substance” as defense counsel argues. Rather, the term
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`“religious corporation” as the City Council intended neatly squares with howthe term is
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`used in other legal and/or formal applications and settings. Yeshivais either a religious
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`corporation in all mannersorit is not. Yeshiva’s decision to amendits charter in 1967
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`and otherwise hold itself out as non-sectarian since then must be accorded. Thus, the
`record showsthat Yeshivais not a “religious corporation” on paper, does notholditself
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`out to be a “religious corporation” and at least 27-years ago knewthatit was not exempt
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`from the NYCHRL and wasotherwise boundbyits antidiscrimination mandates.
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`The court also does not need to contort itself to ascertain the intent of the
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`legislature when it enacted the NYCHRL, commonly knownasone of the most
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`protective anti-discrimination laws in the country. The legislative intent is no better
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`stated than in Admin Code § 8-130, entitled “Construction”:
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`a. The provisionsofthis title shall be construedliberally for the
`accomplishmentof the uniquely broad and remedial purposes
`thereof, regardless of whether federal or New Yorkstate civil and
`humanrights laws, including those laws with provisions worded
`comparably to provisionsofthis title, have been so construed.
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`b. Exceptions to and exemptions from the provisions ofthis title
`shall be construed narrowly in order to maximize deterrence of
`discriminatory conduct.
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`While the 1965 NYCHRLexcluded “colleges and universities” from classification
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`as a place of public accommodation, in 1991, the City Council removedthis exemption
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`from the NYCHRL. Thus, the court’s determination that Yeshiva is not exemptfrom the
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`NYCHRLis wholly consistent with the legislative intent of the NYCHRL, which requires
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`that exemption from it be narrowly construed in order to minimize discriminatory
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`conduct.
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`Even if the court were to adopt Yeshiva’s religious function test, the court would
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`reach the sameresult. Plaintiffs’ counsel correctly characterizes defendants’ argument
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`on this point: defendants wantthis court to find that Yeshiva is a religious corporation in
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`the same manneranordinary person would describe themselvesasa religious person.
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`There is no doubt that Yeshiva has an inherent and integral religious character which
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`definesit and sets it apart from other schools and universities of higher education.
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`However, Yeshiva mustfit within the term “religious corporation” as the legislature
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`intended the term to mean in the NYCHRL.Yeshivais a university which provides
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`educational instruction, first and foremost. Yeshiva’s religious character evidenced by
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`required religious studies, observation of Orthodox Jewish law, students’ participation in
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`religious services, etc. are all secondary to Yeshiva’s primary purpose. “[A] religious
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`corporation should be one formedprimarily for religious purposes; exercising some
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`ecclesiastical control over its members, having some distinct form of worship and some
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`method of discipline for violation thereof’ (Naarim v. Kunda, 7 Misc.3d 1032(A) [NY Sup
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`Ct, Kings Co 2005]). Defense counsel’s assertion that “[y]ou cannot step onto the
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`campusorinto a batei midrash without recognizing that this is a sacred space for
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`students who are studying there” undercuts defendants’ argument. The record shows
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`that the purpose students attend Yeshivais to obtain an education, not for religious
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`worship or some otherfunction whichis religious at its core. Thus, religion is necessarily
`secondary to education at Yeshiva.
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`Defendants’ reliance on Scheiberv. St. John’s University (84 NY2d 120 [1994)) is
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`misplaced. In that case, the Court of Appeals found that St. John’s University (“SJU”)
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`wasa “religious institution” within the meaning of the New York State Human Rights
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`Law,to wit Exec. Law § 296(11). Chief Judge Judith Kaye concluded that although SJU
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`was“conceivedwith the intent of fulfilling a secular educational role, SJU has not
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`abandonedits religious heritage and plainly falls within the exemption for entities that
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`are ‘operated, supervised or controlled by or in connection with a religious organization”.
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`Exec. Law § 296(11) is more expansive than Admin Code § 8-102 in that the former
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`exempts “any religious or denominational institution or organization, or any organization
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`operated for charitable or education purposes, which is operated, supervised or
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`controlled by or in connection with a religious organization...” Since SJU was “an
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`educational organization operated in connection with the Vincentian order — a religious
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`institution or organization — SJU is itself a “religious institution” within the language of
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`Executive Law § 296(11)”. That fact has no bearing on whetherYeshivais a “religious
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`corporation” within the meaning of the NYCHLR. Therefore, contrary to defense
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`counsel's contention, Scheiber is not on point and this court does not need to
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`“contradict the Court of Appeals to rule in plaintiffs’ favor.”
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`Accordingly, the court finds that Yeshiva is not a “religious corporation” as the
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`term is used in Admin Code § 8-102. Defendants’ motion onthis point is denied and
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`plaintiffs’ cross-motion for partial summary judgmentis granted to the extent that the
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`court finds that the defendant Yeshivais not a “religious corporation” as the term is used
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`in the Admin Code § 8-102 exemption of a “Place or provider of public accommodation’.
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`First Amendmentimplications
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`The court now must consider whether the NYCHRL as applied to Yeshiva
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`violates Yeshiva’s First Amendmentrights. The First Amendment to the US Constitution,
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`as applied to the States via the Fourteenth Amendment, provides that “Congressshall
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`makeno law respecting an establishmentofreligion, or prohibiting the free exercise
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`thereof; or abridging the freedom of speech, ... or the right of the people peaceably to
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`assemble...”
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`Defense counsel quotes Obergefell v Hodges, (576 US 644, 679-680 [2015]) and
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`claims that “[t]he First Amendment ensuresthat religious organizations ... are given
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`proper protection as they seek to teach the principles that are sofulfilling and so central
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`to their lives and faiths, and to their own deepaspirations to continue the family
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`structure they have long revered.” Defendants arguethat plaintiffs’ claims as applied to
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`Yeshiva violate Yeshiva’s religious autonomy,the Free Exercise Clause, the Free
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`Speech Clause and the Assembly Clause. Meanwhile, plaintiffs assert that the NYCHRL
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`does not violate defendants’ First Amendmentrights because“[iJt is a law of general
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`applicability, and the Council's intent to prohibit discrimination in places of public
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`accommodation provides a rational basis for its enactment” citing Catholic Charities of
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`Diocese of Albany v. Serio, 7 NY3d 510 [2006].
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`The NYCHRLand the First Amendmentare not incompatible (see i.e. Salemiv.
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`Gloria’s Tribeca Inc., 116 AD3d 569 [1st Dept 2014]). In Catholic Charities, the Court of
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`Appeals explained that the First Amendmentdoesnotprotect an individual from valid
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`and neutral laws of general applicability, even when those laws forbid or compel
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`conduct which goes againstthe grain of a religion. Catholic Charities cited Employment
`Div., Dept of Human Resources of Oregon v. Smith, 494 US 872 [1990], in which the
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`Supreme Court upheld a state law of general applicability against a free exercise
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`challenge. In response to EmploymentDivision, Congress enacted the Religious
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`Freedom Restoration Act of 1993, which was then held unconstitutional in 1997 by the
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`Supreme Court in City of Boerne v. Flores, 521 US 507. Thus, EmploymentDivision is
`good precedent(see ie. Matter of Gifford v. McCarthy, 137 AD3d 30 [3d Dept 2016)).
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`Defense counsel argues that Catholic Charities is no longer good precedent
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`because of Fulton v. City of Philadelphia, Pennsylvania, 141 SCt 1868 [2021]). That
`case, however, found a foster care contract was not generally applicable and thus was
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`subject to strict scrutiny. Nor do casesinvolving secular exemptions apply, since Section
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`8-102 contains a very broad exemption for religious corporations organized under the
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`RCL or Education Law and a smaller exception for private organizations.
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`Assuming arguendothat Yeshiva’s refusal to recognize an LGBTQ student group
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`is part of its exercise of religion, the NYCHRL’s impact on Yeshiva’s exercise ofreligion
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`is only incidental to the NYCHRL’s ban on discrimination. There can be no disputethat
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`the NYCHRLis a neutral law of general applicability. It does not target religious practice,
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`its intent is to deter discrimination, only, and it applies equally to all places of public
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`accommodation other than those expressly exemptedas distinctly private or a religious
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`corporation organized under the education orreligious corporations law. Indeed, the
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`religious corporation carve-out under Section 8-102 was an attempt by the City Council
`to ensure that the NYCHRLwill not be unconstitutionally applied to religious
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`organizations. Thus, Yeshiva’s Free Exercise argumentis rejected.
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`The court further finds that Yeshiva’s Free Speechrights will not be violated by
`application of the NYCHRL. Formal recognition of a student group does not equate to
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`endorsement with that group’s message (see e.g. Bd. Of Educ. of Westside Community
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`Schools v. Mergens By and Through Mergens, 496 US 226, 250 [1990]). Whatplaintiffs
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`seek is simply equal accessto the tangible benefits that Yeshiva affords other student
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`groups onits campus.By following the law and granting the YU Pride Alliance formal
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`recognition and equal access, Yeshiva need not make a statement endorsing a
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`particular viewpoint as defense counsel posits. Moreover, Yeshiva’s Graduate Schools
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`have LGBTQ student groups, which undercuts Yeshiva’s arguments regarding
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`compelled speech when LGBTQ student groups are already a formally recognized part
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`of the Yeshiva community and have been sofor nearly 30 years. Thus, the record
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`showsthat Yeshiva knowsthat formal recognition of LGBTQ student groups does not
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`equate endorsement(see the 1995 Fact Sheet).
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`Finally, the court is unpersuaded by defendants’ association argument, as
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`Yeshiva has not come forward with any evidence that formal recognition of an LGBTQ
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`student group and/or the grant of accommodatio