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New York Court Sees Bias
in Yeshiva University Marital Policy

New York Court Sees Bias in Yeshiva University Marital Policy

Unfair to Insist that Couples be Married to Receive Recognition

Albany, New York--The highest court in New York state unanimously ruled on Monday that university policies that require couples to be married in order to qualify for subsidized housing can be challenged as discrimination based on sexual orientation.

The American Civil Liberties Union sued Yeshiva University on behalf of two lesbian graduate students who were denied access to university-subsidized housing for couples. The New York Court of Appeals in Albany ruled that lower courts erred in finding that Yeshiva's policy didn't violate New York City's gay rights law.

"This is a huge victory," said James Esseks, a partner at the New York law firm of Vladeck, Waldman, Elias & Engelhard, who volunteered with the ACLU on the case. "The court's decision today says that if you make marriage the primary qualification for anything, you are likely going to wind up discriminating against lesbians and gay men."

Lower courts had ruled that Yeshiva's policy was not discriminatory because it "had the same impact on non-married heterosexual students as it had on non-married homosexual students." Today, the Court of Appeals said this was the wrong standard.

"The decision says if using marriage as a qualification in effect excludes lesbians and gay men - and it always will as long as gay people can't marry - then policies tying benefits to marriage discriminate on the basis of sexual orientation," said Esseks, who starts work as the ACLU Lesbian & Gay Rights Project's Litigation Director later this month.

The ACLU has worked for more than two decades to convince the government that it's unfair to insist that people be married in order to have their relationships recognized, Esseks said. "This is a giant step forward in getting that almost self-evident idea accepted," he explained.

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Monday's decision will likely have an impact far beyond New York state, according to Matt Coles, Director of the ACLU Lesbian & Gay Rights Project. The court based its decision on the landmark 1971 U.S. Supreme Court decision striking down Duke Power Company's requirement that upper-level employees have high school diplomas because it had the effect of keeping African Americans out of jobs.

"Most state courts rely on the Duke Power case and similar federal decisions to interpret state anti-discrimination laws," Coles said. "This court's analysis of the Duke Power case means the decision will be important way beyond the borders of New York State."

The lawsuit against Yeshiva University is the first in the nation challenging a policy that offers subsidized housing to graduate students and their married spouses. Hundreds of universities nationwide offer such housing - and about half of them exclude lesbian and gay couples, who then pay hundreds of dollars a month in extra rent and commuting costs to live off-campus.

As a result of the lawsuit, ACLU campus groups and gay student organizations began working to change similar policies at universities nationwide. The University of California in Santa Barbara changed its policy as result, and others - including Tulane University and Colorado State University - clarified their policies to provide equal benefits to same-sex couples.

The ACLU lawsuit, initially filed in 1998, charged that Yeshiva's housing policy violates New York City law barring discrimination based on sexual orientation, as well as state law prohibiting marital status discrimination. Monday's ruling allowed the marital status claim to be dismissed.

Since Yeshiva is not a religious institution (with the exception of certain programs), attorneys for the university have not made any claims that the anti-gay housing policy has anything to do with religion. Instead, Yeshiva University said the ACLU's problem was actually with the state's marriage laws, which were not the university's fault.

In her concurrence of Monday's unanimous decision, Chief Judge Judith Kaye disagreed today. "The state marriage law merely defines who can and cannot marry," she wrote. "It was not intended to permit landlords to violate New York City's laws against housing discrimination."