Is New York’s Yeshiva University a religious institution? You might think that the right answer, given the subject matter, is to reply to a question with a question, perhaps whether the Pope is a Catholic. But this is not the right answer, at least as the law now stands.

Since 2009, students at the Modern Orthodox university have tried to convince its administrators to recognise an LGBTQ club. Last year, students and alumni filed a suit in the New York State Supreme Court. Last week, a judge ruled that Yeshiva University – motto Torah u-Mada (“Torah and Science”) – is not a religious institution, but an educational one. This means that YU cannot exempt itself from New York City’s Human Rights Law, which prohibits discrimination in employment, housing and what federal law calls “public accommodations”, facilities such as schools. And that means that the YU Pride Alliance has the same right to use YU’s photocopiers as any other student group and add its minyan to the many minyanim already on the premises.

The YU case is the latest in a recent series in which the apparently unstoppable force of liberalism meets the supposedly immovable object of religious faith. Two kinds of freedom are in conflict: the right to personal dignity on the terms you choose, and the right to religious liberty on the terms you choose. The gay couple want a wedding cake, but the evangelical bakers don’t want to cater for a gay wedding. Should the gay couple take their custom elsewhere, or should the state force the bakers to compromise on their religious principles? As Alexis de Tocqueville (pronouns: Il/Lui/Monsieur) observed in the 1830s, in America all ethical conflicts become legal ones.

Alexis deTocqueville by Théodore Chassériau

Nineteenth-century French philosopher Alexis de Tocqueville, who observed that in America all ethical conflicts become legal ones (Photo: Wikipedia)

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