2000-09-28 - The Commentator - Spitzer to Support Gay Students in Einstein Housing Battle

Spitzer to Support Gay Students in Einstein Housing Battle

By Dovid Rosen

September 28, 2000

Siding with gay students at Yeshiva University's Albert Einstein College of Medicine (AECOM), New York State Attorney General Eliot Spitzer has asked the New York Court of Appeals to review a lower court's decision upholding Yeshiva's policy of denying homosexual partners housing intended strictly for married students.

Contending that the court's earlier ruling threatened any possible application of New York City's Human Rights Law, Spitzer filed an amicus curiae -- "friend of the court" - brief supporting the plaintiffs' petition. Spitzer's involvement will very likely factor heavily in the court's decision of whether to reconsider overturning the earlier actions of the Appellate Division First Department and the trial judge, the Hon. Franklin Weissberg.

The lawsuit was first filed by the American Civil Liberties Union in 1998 by then AECOM student Dr. Sara Levin, whose partner was denied housing and privileges, including gymnasium usage and health benefits, routinely entitled to spouses of students. Judge Weissberg dismissed the case in 1999, maintaining that "the plaintiff's real complaint lies not with the defendants, but, rather, with the refusal of the New York State legislature to sanction same-sex marriages."

A subsequent appeal on the grounds that Yeshiva's policy violated the "disparate impact" Human Rights Law, which bars discrimination on the basis of sexual orientation and marriage status, was also denied this past April. The fivemember panel of the appellate court argued in a unanimous decision that homosexual couples were no more discriminated against than were heterosexual unmarried couples that are also denied housing privileges.

Michael Adams, Associate Director of the ACLU's Gay and Lesbian Rights Project strongly attacked the court's finding. "Yeshiva's housing policy offers starkly different benefits to straight, married people than it does to gay and lesbian students," he averred. "By eviscerating the notion of disparate impact, the lower courts in this case have set a potentially dangerous precedent that could make it much more difficult to protect anyone from discrimination."

Spitzer also directly addressed the disparate impact question. "The Appellate Division's one-sentence analysis ... misses the point," wrote Spitzer in his brief. "Unmarried heterosexual couples may obtain marriage licenses, which would qualify them for defendants' family housing; to date, no lesbian or gay couple has obtained one."

Spitzer asserted that the court's reading of the Human Rights Law would undermine any such disparate impact cases in the future.

The Attorney General, who won heavy orthodox Jewish support in his narrow 1998 election victory, was quick to point out that his stance was aimed neither against Yeshiva University nor orthodox Jewish beliefs. "I certainly don't intend to dictate to religious groups what their views should be," he remarked. Instead, he characterized his involvement in the case as an attempt to prevent civil rights abuses of all types.

While Yeshiva's counsel, Mark A. Jacoby, refused to comment on the ongoing legal proceedings, he did argue in a brief opposing leave-to-appeal that the case's "relatively narrow and unique context of a college student housing policy" did not raise issues relevant to disparate impact cases in general.

Yeshiva's primary line of defense has remained the lack of legal recognition afforded to homosexual couples by New York State law. "A marriage certificate is a marriage certificate, and we accept a marriage certificate," said a candid Jacoby during the earlier appellate process.

The court is expected to decide on hearing the appeal sometime before the end of the year.

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