September 4, 2022|ח' אלול ה' אלפים תשפ"ב YU and the Supreme Court
Print ArticleTaking his seat in his chambers, the judge faced the opposing lawyers. "So," he said, "I have been presented, by both of you, with a bribe." Both lawyers squirmed uncomfortably. "You, attorney Jon, gave me $15,000. And you, attorney Dave, gave me $10,000." The judge reached into his pocket and pulled out a check. He handed it to Jon ... "Now then, I'm returning $5,000, and we're going to decide this case solely on its merits." This morning I want to discuss a court case.
This past week, YU filed an emergency application to the United States Supreme Court requesting a stay of an order issued by the New York County Supreme Court requiring YU to recognize an LGBTQ club called the YU Pride Alliance. I am a passionate supporter of YU and I was very troubled by much of the reaction that I have been reading from orthodox Jews, some criticizing YU and some criticizing the LGBTQ community. Some have argued that YU is not being compassionate enough and it ignores the plight of the LGBTQ community that is being bullied and silenced on campus. Some have argued that YU is being unethical by claiming that, on the one hand, it is a religious institution and, on the other hand, it is entitled to government money and it is being overly aggressive in fighting all the way to the Supreme Court, thereby causing a chillul Hashem. Some have argued that the LGBTQ community is at fault because it is trying to destroy YU and its rich legacy by forcing it into a corner. I think all of these reactions are wrong. This is not a battle between YU and the LGBTQ community. This is not a game of identity politics when we must pick YU or members of the LGBTQ community. I think it’s something far more nuanced than that and three words in our Parsha should guide us in how to evaluate this litigation.
“Tzedek tzedek tirdof.” Pursue not just tzedek, meaning justice, but pursue justice justice. What does that mean? Rabbi Lamm had a beautiful explanation for the double use of the word “tzedek.” After all, tzedek can have at least two meanings. It can mean righteous and it can mean charitable. There is an objective “tzedek,” which is righteousness, and a subjective “tzedek,” which is compassion. The pasuk here tells us to pursue justice with a sense of compassion, warmth, concern and love. This is what, I believe, YU is trying to do.
On the one hand, YU is a religious institution governed by core religious values dictated by their Roshei Yeshiva. YU has not allowed other student clubs that were inconsistent with its core religious values involving shooting, videogames and gambling. It declined to approve a Yeshiva chapter of the Jewish AEPi fraternity because it concluded that certain aspects of traditional fraternity life would be inconsistent with YU’s Torah values. In this light, YU’s Roshei Yeshiva believe that the Torah’s message when it comes to the LGBTQ community is to accept each individual with love while affirming that certain behavior is halachically forbidden and forming an LGBTQ club would cloud this nuanced message. I think that there is no question that forming an LGBTQ club would contribute to the mental health and well-being of members of the LGBTQ community and may help them find a place within the orthodox community. However, it is hard to deny that this would also cloud the message that LGBTQ relationships are in fact halachically problematic. I believe that YU’s position regarding this club is correct and at the very least a reasonable position for a religious institution to take. At a minimum, YU has the right to make its own decisions about its core values for its own religious institution.
I also believe that YU is acting completely ethically by appealing the lower court’s ruling if it feels that its core values are being compromised. We have a requirement of dina d’malchuta dina, that we must follow the law of the land. We must be good citizens. This case revolves around the parameters of the constitutional right of free exercise of religion and whether YU is a religious institution. YU is taking the position that it is a religious institution and it has a constitutional right to make its own religious rules even if it accepts governmental money. There is nothing unethical about this. There is nothing unethical about an individual or an organization litigating for what it believes to be the truth because that is what our court system is for. People have said that YU cannot have its cake and eat it too. It can’t take government money and make religious rules for its institution. Why not? What makes that unethical? A sound legal argument based on the principle of religious liberties can be made to allow a university to have access to federal funds and simultaneously allow the university to function based on its core values. YU’s position is not unethical. It is a legal question and in America you have the right to litigate even aggressively for what you believe in. This is completely consistent with the doctrine of dina d’malchuta dina.
It is unfortunate that this case has brought about probably more anger towards the LGBTQ community for trying to bring YU down of more anger towards YU for not allowing a Pride Alliance club. Perhaps the ethical thing would have been to quietly agree to the lower court’s ruling and have a club or not have any clubs in YU this year. However, besides the reasons mentioned above, YU has been forced to litigate this case for another reason, and that is because it’s not just about the club. if YU accepts the ruling of the lower court, then it means that YU will no longer be able to govern itself according to its religious values. It means that anyone can challenge the fact that YU has separate gender campuses, that there is Shabbat observance on campus or a whole host of other religious decisions. Not just YU, but any religious university could then lose state funding if someone challenges any of their religious policies. Therefore, It is not unethical for YU to argue for government funding even for a religious university. This, in a nutshell, is “tzedek” number one.
But, as Rabbi Lamm mentioned, there is “tzedek” number two. “Tzedek tzedek tirdof.” Tzedek is not only justice but it is also compassion. Tzedek is also warmth. Tzedek is also love. When tzedek number one and tzedek number collide, cognitive dissonance and a tremendous amount of pain ensue. On the one hand, the leaders at YU look at an application for the YU Pride Alliance and feel strongly that it is antithetical to their religious values. Simultaneously, compassion would move them to want to give this group of students what they are asking for in order to ease some of the suffering that they have endured for many years. We must be compassionate to everyone in our community and YU is committed to that. YU is committed to supporting all of its students. My wife, Yael, is the director of YU’s counseling center. The counseling center hosts an LGBTQ support group, and they have run sensitivity trainings for faculty and Roshei Yeshiva and they provide support for LGBTQ students who struggle at YU.
Since we are a YU community, we should model this behavior and be supportive and fight discrimination and bullying of members of the LGBTQ community, and we should not use this legal battle to attack the LGBTQ community and say that it is trying to destroy YU. There are a number of people who are suing YU, but the entire LGBTQ community is not. Instead of attacking the LGBTQ community at this time, we need to be extra sensitive to this community while upholding our religious sensitivities.
I think, though, that there is another definition of “tzedek tzedek tirdof” that is applicable here. Rashi explains that the double language of tzedek means to always look for the best beit din. Don’t just pursue good justice. Pursue the best justice. Try to find the best beit din. Perhaps continuing with this train of thought, the Chozeh of Lublin explains that the double terminology means that we must constantly strive for justice because justice is never fully attained. There is always more to do. I think that there has been a shift in the way that our community has related to the LGBTQ community, engaging its members with greater empathy, viewing each member of our community as a tzelem Elokim, as someone created in the image of God, not judging him or her, trying to understand his or her struggles, while holding fast to our timeless Torah values. It’s a hard tightrope to balance and there’s a lot of work to be done. Many people have come out and have asserted that there is still a lot of bullying and discrimination in our community. And they are probably right. So as we pursue tzedek, justice, core values in our communities, let us also pursue another tzedek. Don’t let this litigation cloud our love and compassion for every person and let’s not simply refer to any member of our community as a sinner. For those who think that we are not doing enough, realize that we have made strides. For those of us who think that we’ve done a lot in this area, realize that tzedek tzedek, there’s still a lot more work to be done.