Ecclesiastical Abstention Doctrine Leads to Dismissal of Church Property Dispute

In Atlantic Korean American Presbytery v. Shalom Presbyterian Church of Washington, Inc., (VA App., March 11, 2025), a Virginia state appellate court held that the ecclesiastical abstention doctrine barred civil courts from hearing a church property dispute where the church involved had previously invoked jurisdiction of the Presbyterian Church Synod in the church's controversy with the Korean American Presbytery. The church went to a civil court only when it was unhappy with the Synod's ruling. At issue was whether the church's property was held in trust for either of the church's parent bodies-- the Atlantic Korean American Presbytery or the Presbyterian Church, U.S.A.  The court said in part:

AKAP asserts that because the PCUSA Synod previously adjudicated part of this dispute after Shalom invoked the Synod’s authority to prevent AKAP from assuming control of its assets, Shalom’s decision to seek a decision from the PCUSA Synod deprived the circuit court (and by extension, this Court) of jurisdiction to hear the matter.  Since we find the Synod’s decision deprives the circuit court of jurisdiction to hear this matter under the ecclesiastical abstention doctrine, we agree that the circuit court could not reach this matter because it lacked jurisdiction even to hear Shalom’s claim as pleaded. ...

By filing the instant complaint in the circuit court, Shalom is collaterally attacking the decision of the PCUSA’s Synod, whose jurisdiction Shalom had previously submitted to before ever initiating the current civil litigation.  Moreover, when initiating its opposition to AKAP’s attempt to seize control over its assets and operations by an Administrative Commission, Shalom filed an ecclesiastical complaint before the Synod while asserting standing to do so as a member of PCUSA and, thus, per PCUSA’s Book of Order, stating it was also a member of AKAP.  When the Synod subsequently denied their ecclesiastical complaint, instead of appealing that decision to the PCUSA General Assembly, Shalom “terminated [its] connection” with AKAP, and filed a civil complaint in the circuit court that sought a declaration that Shalom was not a member of AKAP.  And this complaint did not assert that the Synod’s decision was fraught with fraud or collusion.  Hence, by filing this civil complaint, Shalom effectively collaterally attacked the Synod’s decision (instead of appealing it) and entirely reversed the position it took on its PCUSA membership status before the ecclesiastical tribunal....  For us to find it permissible for Shalom to undertake a litigation strategy of first filing an ecclesiastical complaint in the ecclesiastical bodies of the Presbyterian Church USA, and then, instead of appealing an adverse judgment within that forum—immediately filing a civil complaint in the Circuit Court of Fairfax County to attack the judgment of the Synod—would violate both the Establishment and Free Exercise Clauses of the United States Constitution.

The court's 43-page opinion includes a lengthy review of the development of the ecclesiastical abstention doctrine in Virginia.

Title VII Applies to Liberty University's Firing of Transgender Employee

In Zinski v. Liberty University, Inc., (WD VA, Feb. 21, 2025), a Virginia federal district court refused to dismiss a Title VII sex discrimination lawsuit against Liberty University brought by a former employee whose employment as an IT Apprentice was terminated because she underwent a male to female sex transition. In an extensively reasoned 70-page opinion, the court rejected several defenses asserted by the University. First the University contended that §§702 and 703 of the 1964 Civil Rights Act allow a religious employer to discriminate on the basis of transgender status when that is consistent with the employer’s religious belief. Those section allow a religious employer to discriminate "with respect to the employment of individuals of a particular religion." The court said in part:

Having determined that no source of law—from statutory text to legislative history to precedent—answers the question before us, the Court is left to weigh the imperfect arguments above, alongside the potential legal and social consequences of our decision. Drawing upon all of these considerations, we conclude that Sections 702 and 703 must be narrowly construed so as to permit discrimination only on the basis of an employee’s espoused religious belief or practice, such that religious employers have no license to discriminate on the basis of any other protected class. Where a religious employer discriminates on the basis of any other protected class in a but-for fashion, a statutory violation occurs, even if the decision was religiously motivated....

To decide that sex discrimination is acceptable so long as it is religiously motivated would allow employers to achieve all manner of discrimination under the banner of religion. So long as the religious institution can show that its view—despite directly implicating sex, race, or national origin—is a sincerely held religious belief, the religious institution would have free license to discriminate at will and evade the scrutiny of civil law. Not only would this subject potentially thousands of people to discrimination..., but it would supply religious institutions with a power not afforded to secular institutions, thereby generating favorites under the law and raising Establishment Clause questions....

The court also rejected the University's RFRA defense, concluding first that RFRA applies only to suits in which the government is a party. It added:

And even if Liberty were entitled to raise RFRA as a defense, we find that Title VII likely passes strict scrutiny....

On the record before us, enforcing this statute in Zinksi’s case merely requires Liberty to maintain an employee who has not followed the university’s Doctrinal Statement to the letter, i.e., an employee who has sinned. It does not require Liberty to change its belief, to endorse Zinksi’s behavior, or to allow Zinksi to spread a new message within the organization.... The minimal inroad on religious liberty here is easily justified by the exceedingly compelling governmental interest in eradicating sex discrimination in employment. Accordingly, we find that Liberty’s brief argument as to burden is insufficient to show substantial burden at this stage of litigation. Thus, strict scrutiny does not apply, and our analysis can come to an end.....

The court rejected the ministerial exception defense, saying in part that "nothing in the record suggests that Zinski was a minister." The court also rejected the University's freedom of expressive association claim, saying in part:

... [W]e must defer Liberty’s claim that it opposes transgender identification and seeks to avoid any promotion of transgender status as an appropriate form of behavior. However,... we cannot conclude that Zinksi’s presence at Liberty would “force the organization to send a message” that Liberty accepts transgender conduct as a “legitimate form of behavior.”... Zinksi is an IT employee who has limited to no interactions with students, has no role in influencing or promoting Liberty’s value system, and has no role in Liberty’s religious curriculum or programming. The only inference that we can draw for Liberty is that Liberty may be seen as a hypocrite for employing a transgender person when it opposes transgender identity; but the same could be said for Liberty’s employment of any other type of person who “sins” despite Liberty’s opposition to sin in general....

Finally, the court rejected the University's ecclesiastical abstention defense, saying in part:

Zinski’s complaint asks the Court to determine whether Title VII prohibits a religious institution from firing a transgender person, not whether a religious institution, like Liberty, has properly interpreted its religious doctrine when determining that a transgender person violates religious law and must be fired.

Court Rules On Pre-Trial Motions by Defendant Charged with Obstruction by Force of Religious Free Exercise

In United States v. Jiang, (ED VA, Feb. 6, 2025), a Virginia federal district court ruled on several technical and procedural issues raised in pre-trial motions by a defendant indicted, among other charges, for attempted forcible obstruction of free exercise of religious beliefs in violation of 18 USC §247. According to an AP report on an earlier aspect of the case:

Prosecutors say Jiang intended to shoot congregation members of the Park Valley Church in Haymarket in September 2023. He was arrested during Sunday services at the church, armed with a handgun and other weapons, after a former girlfriend called police and alerted them to disturbing social media posts he made.

According to authorities, Jiang had recently joined to the church but indicated that he was mad at God and at men for blocking him from having romantic relationships with women. He left behind a “final letter” in which he said he intended to only shoot and kill men and apologized in advance for any women who might be "collateral damage."

The court held that while §247 refers to obstructing "any person in the enjoyment of that person's free exercise of religious beliefs," it is sufficient that the indictment identified defendant's victim as “the congregants of Park Valley Church,” rather than identifying each individual.

The court also rejected defendant's argument that since he did not remove a firearm from his waistband while at the church until law enforcement instructed him to do so, he could not be charged with the aggravated offense of attempting to kill church members

Today Is Religious Freedom Day

President Biden has issued a Proclamation (full text) declaring today as Religious Freedom Day, the anniversary of the adoption by Virginia in 1786 of the Statute of Religious Freedom. The President's Proclamation reads in part:

We are all blessed to live in a Nation that is home to people of many faiths.  However, even in our land of liberty, too many people are afraid that practicing their faith will bring fear, violence, and intimidation.  Over the past year, we have seen a shocking rise in antisemitism in the wake of Hamas’s terrorist attack against Israel and a disturbing rise in Islamophobia.  Hate has no safe harbor here in America.  And around the world, minority communities continue to live in fear of violence and are denied equal protections under the law, including Christians in some countries.

My Administration is committed to ensuring that people of every faith and belief can live out their deepest conviction freely, peacefully, and safely....

Today, we recognize how religious freedom is at the core of who we are as a Nation. It is central to the freedom we offer all Americans. And it is threaded throughout all our work to advance human freedom and dignity in the world.

Secretary of State Anthony Blinken also issued a Statement (full text) marking the occasion, saying in part:

The United States’s dedication to the freedom of religion or belief continues uninterrupted.  Over the past four years, the United States has worked tirelessly to secure this right for everyone around the world.  These efforts include: documenting religious freedom conditions in every country....; declaring the actions of members of the Burmese military against Rohingya to be genocide and crimes against humanity; expanding to over 40 countries the International Freedom of Religion or Belief Alliance....

The United States has also expanded diplomatic efforts to advance freedom of religion or belief through the UN, the Article 18 Alliance, the International Contact Group, and in close coordination with partner countries.  These efforts helped secure the release of religious prisoners of conscience in Nicaragua, the People’s Republic of China, Nigeria, Iran, Somalia, Vietnam, and elsewhere around the world.

Court Examines Sincerity and Religiosity of Vaccine Objections

Stynchula v. Inova Health Care Services, (ED VA, Nov. 19, 2024), is another of the dozens of cases working their way through the courts in which employees have asserted religious objections to Covid vaccine mandates, and their employers have refused to accommodate their objections on the ground that the employees' beliefs were either not religious or not sincerely held. Here the court examines objections asserted by two employees (Netko and Stynchula) and says in part:

Inova argues that Netko’s claim fails because his requests for religious exemptions from the COVID vaccine requirement did not assert beliefs that he sincerely held. The Court agrees....

... Netko’s practice with respect to medicines and vaccines developed using fetal cell lines “[was] inconsistent. He puts some medicines in his body, but not others” and thus he has severely contradicted his assertion that he could not receive a COVID-19 vaccine without compromising his religious beliefs.....  

Netko rejects this conclusion in several ways, none of which is compelling. He argues that Inova cannot show that he subjectively knew of the involvement of fetal cells in the medications and vaccinations that he received, when he received them, and because “sincerity is a subjective question pertaining to the party’s mental state,” if Netko received them ignorant of the fact of fetal cell involvement, “that is not behavior that is markedly inconsistent with his stated beliefs.” ... But there is no rule that a subjective mental state cannot be proven by objective circumstantial evidence....

Netko also contends that his failure to consistently raise fetal cell objections is of no consequence because “a finding of sincerity does not require perfect adherence to beliefs expressed by the [plaintiff], and even the most sincere practitioner may stray from time to time.”... But for a self-declared life-long adherent of a belief, like Netko, such a principle does not mean that sincerity is evident when he strays one hundred percent of the time until one day, he ostensibly decides to outwardly manifest his belief.

... Netko’s assertion that his religion prevented him from taking such vaccines “appears to have been newly adopted only in response to the demand that [he] take the COVID-19 vaccine,”... which is consistent with his general hostility to authority with respect to the COVID pandemic as a whole....

Inova asserts that Stynchula’s claim must fail because her vaccine exemption requests reflect beliefs that are secular, rather than religious, in nature....

Stynchula has not presented facts that show her vaccine-related beliefs are religious....   She states that her fetal cell line objections are grounded in her Catholic upbringing, whereas she joined the Church of Scientology in 2001.... And, the connection between her Scientological beliefs and her vaccination objections is undeveloped except to the extent that she objected to COVID vaccinations as “foreign substances” on the basis of the “axiom” of “Self Determinism” ...  and the idea that “the spirit alone may save or heal the body”... But these simply “seek[] a religious objection to any requirement with which [Stynchula] disagrees” and do not concern religious beliefs.... They are, rather, “isolated moral teaching[s]” in lieu of a “comprehensive system of beliefs about fundamental or ultimate matters.”...

Relatedly, Stynchula’s statements and conduct “only reinforce[] that her opposition stems from her medical beliefs.” ... She believes that her “body is a gift from God” and objects to vaccinations because “[she] do[es] not believe in injecting foreign substances unless there is a therapeutic reason”... and because they would “impact [her] relationship with God” and “would be a sin, as it goes against [her] deeply felt convictions and the answers [she] ha[s] received in prayer”....

... Stynchula does not review medication and vaccine information with an eye towards religious mandates or prohibitions. That is, her search is not to ensure that a specific substance is not present in her medications, or that certain religious procedures have been followed. She simply engages in a cost-benefit analysis of vaccines and medications rooted in her personal concerns over their safety and efficacy. Attaching a gloss of “general moral commandment[s],” such as beliefs in personal liberty or that the body is a temple, to these concerns cannot alone render them religious.

George Mason Law Students Sue Claiming "No-Contact" Order Violates Their Free Speech and Free Exercise Rights

Suit was filed last week in a Virginia federal district court by two Christian female law students at George Mason University contending that a "no-contact" order issued against them by the University's DEI Office violates their free speech and free exercise rights. The complaint (full text) in Ceranksoky v. Washington, (ED VA, filed 11/1,2024), relates that plaintiffs were ordered to avoid contact, including through social media, with a classmate (identified in the complaint only as Mr. Doe) who is the Law School's representative on the Graduate and Professional Studies Assembly. Through an online chat platform, Mr. Doe proposed having hygiene products available in men's rest rooms as well as in women's in order to accommodate transgender men. According to the complaint:

5. [Plaintiff posted] ... her concern that if GMU adopted a policy “allow[ing] biological females into male restrooms to access period products as ‘trans men,’” then that would mean “female bathrooms will welcome male occupants.” She asked her classmate to “recognize the concerns of biological female students” and how they would feel “considerably uncomfortable if there are males using private women’s spaces on campus.” She noted that “[w]omen have a right to feel safe in spaces where they disrobe.” ...

7. Their classmate, who had claimed to be their representative to the student government and initially promised to “advocate for all” students and viewpoints, responded by mocking their concerns and labeling their views as bigoted for questioning others’ gender identity. 

8. Two weeks later ... [plaintiffs] received no-contact orders from GMU’s Office of Diversity, Equity, & Inclusion (“DEI Office”), prohibiting them from having any contact with their classmate....

152....  Defendants have singled out Plaintiffs’ expression and prevented them from engaging in religious expression with Mr. Doe.

153. Defendants’ no-contact orders have also chilled Plaintiffs from engaging in religious expression with other students at the Law School or the rest of GMU....

175.  Plaintiffs are motivated by their sincerely held religious beliefs to speak on-campus on many topics from a Christian worldview. Plaintiffs believe their on-campus speech is a way to share the Gospel of Jesus Christ with non-Christians and a way to disciple and equip other Christians on campus to grow and mature in their faith.

ADF issued a press release announcing the filing of the lawsuit.

Former Priest's Defamation Claim Dismissed Under Ecclesiastical Abstention Doctrine

In Episcopal Diocese of Southern Virginia v. Marshall, (VA App., July 16, 2024), a Virginia state appellate court held that a defamation per se claim by a former Episcopalian priest against a bishop who removed him from the ministry should be dismissed under the ecclesiastical abstention doctrine. The former priest, Robert Marshall, allegedly made improper comments to a female employee. The court said in part:

We find that the defamation claim is inextricably intertwined with the disciplinary proceedings that led to the priest’s ouster.  In addition, the trier of fact would have to decide if the priest committed “sexual misconduct” within the meaning of canon law, which proscribes a broader swath of conduct than secular law....

Marshall claims that the bishop falsely stated that the investigator had “determined that the allegations had merit.” ... He says that the bishop falsely stated that Marshall had admitted to the improper conduct....  He pleads that Bishop Haynes also lied when she claimed that the church had followed the process required under ecclesiastical law....

[A]lthough Marshall denies that he wants a secular court to undo his defrocking, his defamation claim is so intertwined with the bishop’s deposing him as a priest that the defamation claim cannot be litigated without entangling the court in a religious dispute.  When a priest who has been fired sues the church and its leadership raising tort claims that cannot be unscrambled from the church’s decision to fire him, “the First Amendment has struck the balance for us.” ...  Churches have an overarching interest “in choosing who will preach their beliefs, teach their faith, and carry out their mission.” ... In order for a church to remain “free to choose those who will guide it on its way,” ... such tort claims must sometimes give way. 

... The trial court erred in concluding that Marshall’s claim for defamation per se against Bishop Haynes could be resolved on secular principles...

6 More States Fend Off Enforcement of Title IX Transgender Discrimination Rules

Four days after a Louisiana federal district court enjoined the Department of Education from enforcing its new sex-discrimination rules under Title IX against Louisiana, Mississippi, Montana and Idaho (see prior posting), a Kentucky federal district court issued an opinion barring enforcement against Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia which were plaintiffs in the case. DOE's new rules interpret the Title IX ban on sex discrimination to include discrimination against transgender students and faculty by institutions receiving federal financial assistance. Intervenors in the Kentucky case are an organization of Christian educators and a cisgender high school girl who objects to a transgender female who was on her Middle School track team. In State of Tennessee v. Cardona, (ED KY, June 17, 2024), the court in a 93-page opinion said in part:

The Department’s new definition of “discrimination on the basis of sex” wreaks havoc on Title IX and produces results that Congress could not have intended....

For purposes of Title IX, “sex” is unambiguous.  Therefore, there is no “implicit delegation from Congress” to the Department to change or expand its meaning.... But even if the word were ambiguous, there would be significant reason for pause before assuming that Congress “had intended such an implicit  delegation.”...  Education is one of the most important functions of state and local governments and is an area where states “historically have been sovereign.” ...  Accordingly, it is unlikely that Congress would have intended to delegate the authority to deviate from Title IX’s original purpose “in so cryptic a fashion.”...

The major questions doctrine assumes that Congress speaks clearly when it delegates to an agency the authority to make “decisions of vast economic and political significance.”...

The court also concluded that the new rules violate teachers' free speech rights, saying in part:

... [P]rivate and public institutions, as well as the students, faculty, and staff therein, will be forced to convey a particular message that may contradict moral or religious values....  For example, the Final Rule’s definition of harassment will likely compel “students and teachers to use ‘preferred’ rather than accurate pronouns.” ...

It is unclear how the Government’s articulated position can be seen as anything less than a tacit endorsement of a content-based heckler’s veto So long as the offended individuals complain with sufficient vigor, the refusal to abide by preferred pronouns can be deemed harassment and exposes a recipient of Federal funds to liability under Title IX....

The court also focused on parental rights and privacy rights, saying in part:

Although the Final Rule gestures at retaining a certain role for parents, it does not provide that parental opposition to their child’s selective gender identity requires schools to exempt that student from Title IX’s new mandate.  To the contrary, it implies that Title IX could supersede parental preferences about a child’s treatment depending on the case.

... [D]espite society’s enduring recognition of biological differences between the sexes, as well as an individual’s basic right to bodily privacy, the Final Rule mandates that schools permit biological men into women’s intimate spaces, and women into men’s, within the educational environment based entirely on a person’s subjective gender identity.  This result is not only impossible to square with Title IX but with the broader guarantee of education protection for all students.

ADF issued a press release announcing the decision.

Student Sues School Board Alleging Gender Affirming Policies Violate Her Rights

Suit was filed earlier this week in a Virgina state trial court by a high school student challenging Fairfax County School Board regulations (full text) that support transgender students.  The complaint (full text) in Doe v. Fairfax County School Board, (VA Cir. Ct., filed 3/4/2024), alleges in part:

... FCPS Regulation 2603.2 and its application unconstitutionally violates the Petitioner’s sincerely held philosophical and religious beliefs by compelling her to refer to “[s]tudents who identify as gender-expansive or transgender [] by their chosen name and pronoun ....  

... [They] further unconstitutionally violate the Petitioner’s philosophical and religious beliefs by compelling her to share a restroom with a biological male. 

... [They] unconstitutionally discriminate against the Petitioner on the basis of her sex by requiring her to use a private restroom to remain consistent with her beliefs while allowing a biological male to use the female restroom... [and by permitting] a biological male to feel safe and comfortable by having full access to any restroom of his choice while not allowing the Petitioner to feel safe and comfortable by using the restroom of her biological sex....

... FCPS has knowingly and blatantly violated the Petitioner’s rights by forcing her to accept the ideological viewpoint of the government and the claimed rights and privileges of other students. 

America First Legal issued a press release announcing its filing or the lawsuit. FFXNow reports on the lawsuit.

Virginia Legislature Passes Symbolic Bill Recognizing Same-Sex Marriages

In Virginia, Governor Glenn Youngkin has until tomorrow to decide whether or not to sign HB 174/ SB 101 (full text) which provides:

No person authorized by § 20-14 to issue a marriage license shall deny the issuance of such license to two parties contemplating a lawful marriage on the basis of the sex, gender, or race of such parties. Such lawful marriages shall be recognized in the Commonwealth regardless of the sex, gender, or race of the parties.

Religious organizations and members of the clergy acting in their religious capacity shall have the right to refuse to perform any marriage.

As reported by Dogwood, the bill was introduced because of concern that the U.S. Supreme Court might overrule its caselaw protecting same-sex marriages. Even if the Governor signs the bill, its impact on same-sex marriages would only be symbolic since the Virginia Constitution Sec. 15-A prohibits recognition of same-sex marriages in the state and would take precedence over the statute if the U.S. Supreme Court returned the issue of recognition of same-sex marriages to the states.

Presumption of Discrimination in Virginia Fair housing Law Held Unconstitutional

 In Carter v. Virginia Real Estate Board, (VA Cir. Ct., Jan. 24, 2024), a Virginia state trial court held unconstitutional a portion of Virginia's Fair Housing Law (§36-96.3) that provides:

The use of words or symbols associated with a particular religion, national origin, sex, or race shall be prima facie evidence of an illegal preference under this chapter that shall not be overcome by a general disclaimer. However, reference alone to places of worship, including churches, synagogues, temples, or mosques, in any such notice, statement, or advertisement shall not be prima facie evidence of an illegal preference....

In the case, a realtor's e-mails contained a signature line reading "For Faith and Freedom, Jesus Loves You, and with God all things are Possible." Her e-mails also contained a personal statement reading "For God so loved the world that He gave his only begotten Son, that whosoever believeth in Him should not perish but have everlasting life. John 3:16". The Virginia Real Estate Board began an investigation of the realtor based on these religious statements. The court invalidated this portion of the Fair Housing Law, saying in part:

[This section of the] Virginia Fair Housing Law ... infringes the natural right of individuals to express their identity and, as such, stands in sharp contrast to the freedom of Virginians and Americans to express their identity that lie at the heart of the First Amendment ... and the Virginia Statute of Religious Freedom. Moreover, the statute restricts individual expression with a sweeping generalization so broad that any expression of individual identity related to religion, national origin, sex, or race is deemed tantamount to a desire to engage in unlawful discrimination.... Virginia's presumption of animus in the Fair Housing Law inequitably and overbroadly inhibits those rights, and as such, it fails to give the breathing space that First Amendment freedoms require....

ACLJ issued a press release announcing the decision.

Ministerial Exception Does Not Bar Whistleblower Suit by Liberty University Dean

 In Markley v. Liberty University, Inc., (VA Cir. Ct., Dec. 8, 2023), a Virginia state trial court held that the ministerial exception doctrine does not prevent a former Administrative Dean for Acedemic Operations from suing Liberty University, a Christian University, for unlawfully terminating his employment because he engaged in whistleblower activities. According to the court:

Markley, who holds a Bachelor of Science degree in Speech Communications, a Master of Divinity degree in Biblical Studies, a Master of Arts degree in Biblical Exegesis, and a Doctor of Philosophy degree in New Testament and Christian Origins, was employed by Liberty University from 2008 to 2022. During his employment, he held various positions. Though Markley never held a position that carried a religious title, such as minister, pastor, or deacon, Dr. Scott Hicks, Liberty University's Provost and Chief Academic Officer, testified that Liberty University considers all of its faculty to be ministers in the sense that they are ministering and spreading the university's religious doctrine to its students.

From 2008 until 2017, Markley taught Biblical Studies courses....

In 2018, Markley transitioned from being a full-time professor to being a full-time administrator.....

While Markley's administrative job carried no teaching responsibilities or requirements, he nonetheless did continue to teach online courses....

After considering Markley's job description and ...after taking all relevant circumstances into account, the Court finds that Markley's position as Administrative Dean for Academic Operations did not implicate the fundamental purpose of the ministerial exception. None of the essential functions or responsibilities of that administrative position involved Markley leading a religious organization, conducting worship services or important religious ceremonies or rituals, or serving as a messenger or teacher of the faith.... For purposes of the ministerial exception, the Court finds that Markley, as Administrative Dean for Academic Operations, was not a "minister."

The complaint in the case (full text) provides details of Markley's whistleblowing.

Virginia Supreme Court Rules For Teacher Who Refused To Use Student's Preferred Pronouns

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.

Fire Fighter Can Move Ahead with Free Speech and Free Exercise Claims

In Misjuns v. Lynchburg Fire Department, (WD VA, April 20, 2023), a Virginia federal district court held that a fire department captain who was denied training necessary for promotion, and who was ultimately investigated and terminated from his position, had adequately alleged free speech and free exercise violations. One of plaintiff's contentions was that adverse action was taken against him because of a religious anti-transgender posting on one of his Facebook pages. According to the court:

Plaintiff posted a meme ,,, which stated: “In the beginning, God created Adam & Eve. Adam could never be a Madam. Eve could never become Steve. Anyone who tells you otherwise defies the one true God.”...

Plaintiff has sufficiently alleged ... that Defendants’ retaliatory actions against him were due to religious beliefs, not just political beliefs.

Lynchburg News & Advance reports on the court's decision.

Virginia Legislature Passes Law Protecting Houses of Worship from Discriminatory Restrictions During Emergencies

Yesterday, the Virginia General Assembly gave final passage to HB 2171 (full text). The bill, which is a reaction to restrictions imposed during the COVID pandemic, provides:

No rule, regulation, or order issued by the Governor or other governmental entity pursuant to this chapter shall impose restrictions on the operation of a place of worship that are more restrictive than the restrictions imposed on any other business, organization, or activity.

Virginia Mercury, reporting on the bill's passage, says that Gov. Glenn Youngkin is expected to sign the bill. It quotes a proponent of the bill as saying: "This bill means the governor’s not gonna open liquor stores and close churches."

Suit Charges Selective Granting of Religious Exemptions From COVID Vaccine Mandate

A class action lawsuit was filed in a Virginia federal district court this week alleging that the University of Virgina Health System violated free exercise and establishment clause provisions of the federal and state constitutions as well as equal protection rights in the manner in which it administered applications from employees for religious exemptions from its COVID vaccine mandate. The complaint (full text) (memo in support of motion for preliminary injunction) in Phillips v. Rector and Visitors of the University of Virginia, (WD VA, filed 12/14/2022), alleges in part:

2. When UVA Health mandated that employees receive a COVID-19 vaccine, it knew that it was required to accommodate religious beliefs. But it wanted to minimize accommodations, and it believed that most objections were false political beliefs from members of the political right. 

3. So UVA Health drew up a list of churches that its human-resources personnel believed had official doctrines prohibiting vaccination. It then automatically exempted members of these religions from receiving the vaccine. As to employees who were members of other faiths, UVA Health automatically dismissed their religious objections to the COVID-19 vaccine as insincere, as non-religious in nature, as based on “misinformation,” or as a misinterpretation of the objector’s own religious beliefs....

5. The result was blatant—and blatantly unconstitutional—religious discrimination....

The complaint goes on to allege that UVA categorically dismissed as misinformation objections based on the relation of fetal cell lines to the vaccines. [Thanks to Samuel Diehl for the lead.]

Nurse Sues Clinic For Violating State Conscience Protections

Suit was filed yesterday in a Virginia state court by a Catholic nurse practitioner who was fired by a CVS Minute Clinic after she insisted that, for religious reasons, she would not provide or facilitate the use of hormonal contraceptives, Plan B and Ella which she considers abortifacients. For three years, the clinic had accommodated her religious beliefs, but it then changed its policy and refused to do so.  The complaint (full text) in Casey v. MinuteClinic Diagnostic of Virginia, LLC, (VA Cir. Ct., filed 8/31/2021) challenges her firing as a violation of Va. Code § 18.2-75 which provides that:

any person who shall state in writing an objection to any abortion or all abortions on personal, ethical, moral or religious grounds shall not be required to participate in procedures which will result in such abortion.

ADF issued a press release announcing the filing of the lawsuit.

Virginia Governor Signs Act Broadly Defining "Religion" In Civil Rights Laws

On Friday, Virginia Governor Glen Younkin signed House Bill 1063 (full text) which defines "religion" as used in the state's anti-discrimination laws as:

"Religion" means all aspects of religious observance, practice, or belief.

ADF issued a press release on the new law.

Certiorari Denied In Virginia Ministerial Residence Tax Exemption Dispute

The U.S. Supreme Court today denied review in Trustees of New Life In Christ Church v. City of Fredericksburg, Virginia,  (certiorari  denied, 1/18/2022), over the dissenting opinion of Justice Gorsuch. In the case, a Virginia state court denied the state's "ministerial residence" tax exemption to a local Presbyterian church because the Youth Ministers living in the home at issue were not ordained clergy and were not listed by the church as one of its primary pastors. (See prior related posting.) The city claimed that this meant they did not qualify as "ministers" under the Presbyterian Church's Book of Church Order, despite the local church's insistence that they do qualify.  Justice Gorsuch, in his opinion dissenting from the denial of certiorari, said in part:

[T]he City continues to insist that a church’s religious rules are “subject to verification” by government officials....

I would grant the petition and summarily reverse. The First Amendment does not permit bureaucrats or judges to “subject” religious beliefs “to verification.”...

This case may be a small one, and one can hope that the error here is so obvious it is unlikely to be repeated anytime soon. But I would correct it....

Courthouse News Service reports on the case.

Virginia Governor Creates Commission To Combat Antisemitism

Virginia's newly-inaugurated Governor Glenn Youngkin has issued an Executive Order (full text) creating a Commission to Combat Antisemitism. According to the Executive Order:

The purpose of this Commission is to study antisemitism in the Commonwealth, propose actions to combat antisemitism and reduce the number of antisemitic incidents, as well as compile materials and provide assistance to Virginia’s public school system and state institutions of higher education in relation to antisemitism and its connection to the Holocaust.

The Commission shall make recommendations to the Governor and General Assembly with the goal of identifying ways to reverse increasing antisemitic incidents in the Commonwealth.

According to a press release from the Governor's office, the Order was one of nine Executive Orders and two Executive Actions taken by Youngkin on Saturday, the day on which he was inaugurated.