In Vlaming v. West Point School Board, (VA Sup. Ct., Dec. 14, 2023), the Virginia Supreme Court, in a 4-3 decision, held that a teacher who was fired after refusing for religious reasons to use masculine pronouns in referring to a biologically female student has a claim for violation of the free exercise provisions of the Virginia state Constitution. The majority, in a 73-page opinion, held that the Virginia Constitution requires greater accommodation than does the First Amendment of the U.S. Constitution when a neutral law of generally applicability conflicts with a religious belief. The majority said in part:
[W]e hold that in the Commonwealth of Virginia, the constitutional right to free exercise of religion is among the “natural and unalienable rights of mankind,” ... and that “overt acts against peace and good order,” correctly defines the limiting principle for this right and establishes the duty of government to accommodate religious liberties that do not transgress these limits.
The majority also held that plaintiff had adequately stated a claim under the Virginia Religious Freedom Restoration Act as well as a claim for violation of the free speech and due process provisions of the Virginia Constitution. The majority said in part:
Because the gravamen of Vlaming’s free-speech claims involves an allegation of compelled speech on an ideological subject, we hold that the circuit court erred when it dismissed Vlaming’s free-speech claims....
At the time that the School Board fired Vlaming, no clearly established law — whether constitutional, statutory, or regulatory — put a teacher on notice that not using third-person pronouns in addition to preferred names constituted an unlawful act of discrimination against transgender students. If the government truly means to compel speech, the compulsion must be clear and direct.
Finally the majority concluded that plaintiff adequately alleged that the School Board had breached his contract.
Justice Powell, joined by Chief Justice Goodwyn concurred in part, saying in part:
I write separately to clarify that, in my opinion, the proper test to evaluate a free exercise claim under Article I, Section 16 of the Virginia Constitution is traditional strict scrutiny as expressed in Sherbert v. Verner.... I disagree with the majority’s conclusion “that ‘overt acts against peace and good order,’ ... correctly defines the limiting principle for this right [in Article I, Section 16] and establishes the duty of the government to accommodate religious liberties that do not transgress these limits.”
Justice Mann filed a 64-page opinion dissenting in part. He said in part:
I dissent from the majority’s analysis and interpretation of Article I, Section 16.... The majority’s proposed limiting principle for the free exercise provision ... is not supported by the plain words of our Constitution, its history, our legal precedent, or legislative action of the General Assembly. I also dissent with respect to the majority’s rulings on Vlaming’s free speech and due process claims. Regarding Vlaming’s free-exercise claim, the majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either.,,,
Where a claimant alleges that the government was hostile towards his religious free exercise or that the government did not neutrally apply the law, the reviewing court should apply strict scrutiny to determine whether the government’s enforcement was narrowly tailored to achieve a compelling state interest....
As for Vlaming’s free speech and due process claims, the facts speak for themselves. Under well-established federal precedent, Vlaming’s allegations as pleaded establish that Vlaming was (1) a public employee engaged in curricular speech pursuant to his official job duties, (2) not speaking as a private citizen on a matter of public concern; and (3) had ample notice that his refusal to use Doe’s preferred pronouns was a violation of the School Board’s policies, and the School Board provided him an opportunity to be heard on his discipline....
Justice Powell and Chief Justice Goodwyn joined the portions of Justice Mann's opinion that relate to the Virginia Religious Freedom Restoration Act, and the free speech and due process provisions of the Virginia Constitution.
