Yeshiva Denies Housing for Same-Sex Couples
Appeals court Upholds Decision and Practice; Future Policy Unclear
by Commentator Staff
May 22, 2000
Last week, an appeals court in Manhattan ruled that Yeshiva University can continue its practices of barring same-sex couples from living in school-subsidized housing. The Supreme Court's Appellate Division upheld a lower court ruling that Yeshiva's policy- which provides housing to students, their spouses, and dependent children at below-market rates - violates no existing city or state statutes.
Lawyers for two same-sex couples argued last month that Yeshiva University's medical school, The Albert Einstein College of Medicine, unlawfully discriminates against lesbian and gay students by barring their life partners from apartments provided to married students. The suit was filed by Sara Levin, 28, of San Francisco, a fourth-year student at Einstein. She maintained that the school discriminated illegally by not allowing her domestic partner to live with her.
The court rejected Levin's argument, pointing out, as Justice Franklin Weissberg did on March 29, 1999, that the University does not let unmarried heterosexual students live with their lovers in school housing either. The appeals court also rejected the argument that the housing policy discriminates on the basis of marital status and sexual orientation, since lesbians can't marry each other.
Judge Weissberg observed that nothing in the law prevented Yeshiva from distinguishing between married and unmarried couples in deciding who would be allowed to live in school-subsidized housing. Abe Habenstreit, Einstein spokesman, issued a statement saying school officials were "gratified" by the ruling. "We have maintained all along that our student housing policies are fair and non-discriminatory."
The argument before a panel of the Appellate Division, First Department, was one of the first lawsuits brought in the United States aimed at challenging a university policy barring same-sex couples from graduate student housing. Initially arguing the appeal for the plaintiffs, James D. Esseks of Vladeck, Waldman, Elias & Engelhard, claimed that the University's policy violates the New York City Human Rights Law since it has a disparate impact on students of differing sexual orientations. He also alleged that the policy contradicts the city and state human rights law protections against discrimination based on marital status.
But the lawyer for Yeshiva University, Mark A. Jacoby of Weil, Gotshal & Manges, responded that the policy is motivated by the limited supply of student housing and does not discriminate based on the sexual orientation of students. Mr. Jacoby, responding to a question from Justice Peter Tom, affirmed that if a future ruling provided marriage certificates to same-sex couples, the school would recognize the marriage and provide the appropriate housing.
"A marriage certificate is a marriage certificate," Jacoby answered Justice Tom. "That is the policy." Mr. Jacoby also informed the panel that the school would provide family housing to a lesbian or gay student and their dependent child. Jacoby's position is sure to cause ripples throughout the Yeshiva community, as the University has effectively promised to permit same-sex couples to live in subsidized housing provided that the law recognizes their marriages.
Justice Richard T. Andrias ruled that "it seems to be an odd distinction to bring the child into student housing, but not the partner of the parent." Justice Angela M. Mazzarelli also pressed Mr. Jacoby on this point, calling the distinction "a bizarre result." Mr. Esseks observed, however, that there are currently no jurisdictions anywhere in the United States or in the world that recognize same-sex marriage.
"Yeshiva says that any disparate impact comes from the state's definition of marriage," Mr. Esseks said. "But Yeshiva chose to introduce the concept of marriage into its housing policy."
Ms. Levin, a third-year student at Einstein, and her domestic partner of six years, Carla Richmond, were barred from the University's couples housing in 1996 because they were not married. Ms. Jones, a first-year student at Einstein, and her domestic partner of five years, Joslyn Hidalgo, were likewise denied housing.
Both the Levin-Richmond and Jones-Hidalgo couples are registered as domestic partners.
"This is a question of a limited amount of housing," Mr. Jacoby said. "The University can provide it to spouses and children of students, but it is not opening housing to all persons who want to live with their partner."
Although Yeshiva University's various schools have their roots as Jewish institutions, the University is a secular university that admits students of all creeds and accepts federal and state funding for its Einstein Medical College, lawyers for both sides agreed. Accordingly, the school did not raise a defense based on the First Amendment's strictures against church state-entanglements, which would be available to a religious but not a secular institution.
The University's contention that they would grant the requested housing if legal marriage certificates are issued to the same-sex couples, seems to reaffirm the focus that they are placing on the secular nature of their institution. "Yeshiva for once must decide where it stands. Are we a Yeshiva first and then a University, or chalila fakert [G-d forbid the opposite]," bemoaned one Rosh HaYeshiva.
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