Vlaming v. West Point School Board ( 2023 )

PRESENT: All the Justices
PETER VLAMING
OPINION BY
v. Record No. 211061 JUSTICE D. ARTHUR KELSEY
DECEMBER 14, 2023
WEST POINT SCHOOL BOARD, ET AL.
FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
Jeffrey W. Shaw, Judge
The West Point School Board terminated the employment of Peter Vlaming, a high
school French teacher. Vlaming claims that he lost his job not because of something he had
said — but because of what his conscience would not allow him to say. In class, Vlaming
referred to a transgender student by the student’s preferred name and avoided the use of third-
person pronouns when referring to the student. Vlaming claims that the School Board ordered
him to use government-mandated pronouns in addition to using the student’s preferred name.
The School Board fired Vlaming for refusing to do so.
Vlaming sued the West Point School Board, the principal and the assistant principal of
the high school, and the superintendent (collectively, the “School Board”), alleging
constitutional, statutory, and breach-of-contract claims. Examining only the allegations in
Vlaming’s complaint, the circuit court dismissed Vlaming’s claims, finding that they failed to
state legally viable causes of action. Disagreeing with the circuit court, we reverse and remand
for further proceedings.
I.
Without hearing any evidence, the circuit court ended this case at its earliest stage by
sustaining the School Board’s demurrer and granting the School Board’s plea in bar. Given this
procedural posture, we accept on appeal the facts alleged in Vlaming’s complaint as true and
draw any reasonable inferences from those facts in his favor. See, e.g., Eubank v. Thomas, 300
Va. 201, 206 (2021); Plofchan v. Plofchan, 299 Va. 534, 547-48 (2021). We apply the same
presumption of correctness to allegations challenged by a plea in bar when, as here, the plea
seeks to duplicate the function of a demurrer and when no disputed facts are resolved following
an evidentiary hearing. See California Condo. Ass’n v. Peterson, 301 Va. 14, 20-21 (2022); Our
Lady of Peace, Inc. v. Morgan, 297 Va. 832, 847 n.4 (2019).
So viewed, Vlaming’s complaint alleges the following facts. Vlaming taught French at
West Point High School for six years. Consistently giving Vlaming positive evaluations, the
School Board granted him “continuing contract status.” See J.A. at 5, 42. Near the end of the
2017-18 school year, Vlaming learned that a biologically female student (referred to in this
litigation as “John Doe”) intended to transition to a male identity. Id. at 6-7. Previously a
student in Vlaming’s Exploratory French and French I classes, Doe planned to enroll in
Vlaming’s French II class for Fall 2018.
At the beginning of the school year, Vlaming ordinarily asked each student to pick a
French name that the student preferred to use for that class and any subsequent French classes.
Prior to the beginning of the 2018-19 school year, Vlaming “became aware that [Doe] desired to
be called by a more culturally masculine name instead of [Doe’s] culturally female names (both
[Doe’s] given and French names).” Id. at 7. Seeking “[t]o avoid drawing unwanted attention” to
Doe, Vlaming asked the entire French II class to “pick new French names for the semester”
despite having already chosen a French name in French I “so that [Doe] would not be the only
one changing names.” Id.
Toward the middle of the fall semester, Vlaming alleges, he also became aware that Doe
wanted to be referred to by masculine pronouns. For Vlaming, this request asked him to violate
his conscience. He holds religious and philosophical convictions that reject the idea that “gender
2
identity, rather than biological reality, fundamentally shapes and defines who we truly are as
humans” and instead accept as a verity that “sex is fixed in each person, and that it cannot be
changed, regardless of our feelings or desires.” Id. at 2-3. In the “ongoing public debate
regarding gender dysphoria,” Vlaming alleges that he cannot in good conscience “use pronouns
that express an objectively untrue ideological message.” Id. at 2. “Mr. Vlaming’s conscience
and religious practice,” the complaint states, “prohibits him from intentionally lying, and he
sincerely believes that referring to a female as a male by using an objectively male pronoun is
telling a lie.” Id. at 11.
Seeking to respect Doe’s preferences while remaining true to his conscience, Vlaming
used Doe’s “new preferred names (both French and English),” id. at 7, and avoided using third-
person pronouns when referring to Doe. To limit the risk of Doe feeling singled out, Vlaming
“also rarely, if ever, used third person pronouns to refer to any students during class or while the
student being referred to was present.” Id. “In class discussion,” the complaint explains, “if Mr.
Vlaming refers to a student, or their work, it is rare that he uses a pronoun. Rather he would say,
for example, ‘What do you think about John’s answer?’ or, ‘Was John’s answer correct?’” Id.
On October 22, 2018, Vlaming met with Doe and explained that “he was trying to honor
[Doe’s] wishes” by using Doe’s preferred name and “would not use the female pronoun” to refer
to Doe when the two of them were present. Id. at 8. “During the meeting,” the complaint
alleges, Doe “did not take issue with, or mention at all, Mr. Vlaming’s practice of not using
pronouns in class. The meeting ended on a good note, and the student seemed to be satisfied and
comfortable with the situation.” Id. Later that day, Vlaming called Doe’s parent. The parent
told Vlaming that Doe “had thought the meeting had gone well.” Id. When Vlaming explained
3
his reasons for avoiding the use of pronouns, the parent told Vlaming that he “should leave his
principles and beliefs out of this and refer to [Doe] as a male.” Id. at 9.
On October 23 and 24, Vlaming met with Assistant Principal Suzanne Aunspach to
discuss Vlaming’s treatment of Doe. Aunspach told Vlaming “that he should be aware of the
law.” Id. at 10. Aunspach gave Vlaming two documents prepared by the National Center for
Transgender Equality. See id. at 46-49. One of these documents asserted that transgender
students have the legal “right to be addressed by the names and pronouns that they use” and the
legal “right to use the restrooms and locker rooms that match their gender identity.” Id. at 46.
With respect to students “whose genders aren’t entirely male or female, sometimes called non-
binary or genderqueer students,” the document stated that “these student[s] should determine
which locker rooms and restrooms, pronouns, and dress code standards are most appropriate for
them in accordance with their gender identity.” Id. at 47.
During his conversations with Aunspach, Vlaming again explained that “using male
pronouns to refer to a female was against his religious beliefs.” Id. at 10. Vlaming believes
“both as a matter of human anatomy and religious conviction that sex is biologically fixed in
each person and cannot be changed regardless of a person’s feelings or desires.” Id. “Saying
‘he,’ ‘him,’ or ‘his’ objectively expresses the message that a person is, or the speaker believes
[the person] to be, male.” Id. Vlaming explained that his “conscience and religious practice
prohibited him from intentionally lying” by “referring to a female as a male.” Id. at 11.
Aunspach’s response was direct: Vlaming’s “personal religious beliefs end at the school door”
to the extent that they conflict with School Board policy. Id. Under School Board policy,
Aunspach said, Vlaming’s “non-use of pronouns was not enough,” and he “should use male
pronouns or his job could be at risk.” Id. at 10.
4
A week later, Vlaming met with Principal Jonathan Hochman. Vlaming explained that
he did not wish to offend Doe but that his religious beliefs prohibited him from using masculine
pronouns to refer to Doe. Like Aunspach, Hochman told Vlaming that he was required to use
masculine pronouns to refer to Doe “in any and every context” and that Vlaming’s failure to do
so could lead to the termination of his employment. Id. at 11. In another meeting with Vlaming,
Hochman and Aunspach together repeated that he was required to use masculine pronouns to
refer to Doe and would be reprimanded for not doing so in the past.
Shortly after this last meeting, Vlaming returned to his French class. Under his
supervision, the students participated that day in a paired classroom exercise involving the use of
virtual-reality goggles. At one point, Doe was wearing the goggles and walking through the
classroom while receiving instructions from a second student. Concerned that Doe was about to
walk into a wall, Vlaming exclaimed to the second student: “Don’t let her hit the wall!” Id. at
12. Vlaming immediately “put his hand to his mouth” and finished supervising the activity. Id.
When class concluded, Vlaming apologized to Doe, explaining that “this is difficult” and that his
remark was a spontaneous reaction to the risk that Doe was about to walk into a classroom wall
and get hurt. Id. Dissatisfied with this explanation, Doe withdrew from Vlaming’s class later
that day.
Vlaming immediately reported the incident to Hochman. Hochman explained that
Vlaming should have expressly apologized to Doe for not using a masculine pronoun. Hochman
told Vlaming: “You know what you do to d[e]fuse a situation like that? You say, ‘I’m sorry, I
meant to say him.’” Id. (emphasis in original). Later that day, Hochman recommended to
Superintendent Laura Abel that Vlaming be placed on administrative leave.
5
The following day, Abel suspended Vlaming pending an official investigation of his
actions. Five days later, Hochman issued a reprimand and final warning letter to Vlaming. The
letter explained that Vlaming’s refusal to use masculine pronouns to refer to Doe had violated
the School Board’s policy “prohibiting harassment or retaliation against students and others on
the basis of gender identity.” Id. at 14. Abel met the same day with Vlaming to discuss the
terms of the final warning letter. During this conversation, Vlaming said that he would continue
to use Doe’s preferred name but could not use masculine pronouns to refer to Doe because his
religious beliefs and conscience prohibited him from doing so.
Abel subsequently gave Vlaming a written directive ordering him to use masculine
pronouns to refer to Doe. Vlaming’s noncompliance, the directive warned, would result in the
termination of his employment. Having already committed to using Doe’s preferred name and
avoiding the use of third-person pronouns, Vlaming again said that he could not in good
conscience use masculine pronouns when referring to Doe. Abel then recommended Vlaming’s
termination to the School Board.
At the conclusion of a subsequent public hearing, the School Board voted to terminate
Vlaming’s employment. The School Board fired Vlaming, the complaint alleges, because he had
refused to use masculine pronouns to refer to Doe and had refused to comply with directives
from school administrators to do so. See id. at 16, 68-69. Vlaming’s refusals, the School Board
stated, had violated School Board Policies AC and GBA/JFHA, which prohibited discrimination
and harassment based on gender identity.
Vlaming later filed a complaint in the circuit court against the School Board, Abel,
Hochman, and Aunspach. The complaint asserted free-exercise, free-speech, due-process, and
breach-of-contract claims resulting from Vlaming’s termination. Vlaming based his claims
6
entirely on provisions of the Constitution of Virginia, Virginia statutes, and other Virginia law.
The School Board defendants filed a joint demurrer to each of the claims in Vlaming’s complaint
and a plea in bar to Vlaming’s free-speech claims. The School Board did not present any
evidence to support the plea in bar.
The circuit court granted the School Board’s plea in bar and sustained the School Board’s
demurrer. The circuit court sustained the School Board’s demurrer to Vlaming’s breach-of-
contract claim to the extent that it applied to Abel, Hochman, and Aunspach, but partially
overruled it to the extent that it applied to the School Board. As to the School Board, the circuit
court sustained the demurrer to that portion of the claim alleging that the School Board had
terminated Vlaming’s employment based upon unlawful grounds, and it overruled the demurrer
to the extent that the breach-of-contract claim asserted procedural challenges against the School
Board. 1 Vlaming nonsuited this surviving portion of his breach-of-contract claim against the
School Board.
II.
“On appeal, we review a circuit court’s judgment sustaining a demurrer de novo.”
Eubank, 300 Va. at 206. Likewise, the “standard of review on appeal when considering a plea in
bar is ‘functionally de novo’ when the appellate court must consider solely the pleadings to
resolve the issue presented.” Plofchan, 299 Va. at 547 (quoting Massenburg v. City of
Petersburg, 298 Va. 212, 216 (2019)). In this scenario, “we consider as true the facts alleged in
the [complaint] and the reasonable factual inferences that can be drawn from the facts alleged.”
1
On appeal, Vlaming only challenges the dismissal of the breach-of-contract claim to the
extent that it applies to the School Board’s decision to terminate his employment contract based
upon allegedly unlawful grounds. Vlaming has not challenged on appeal the dismissal of the
breach-of-contract claim as to Abel, Hochman, and Aunspach.
7
Eubank, 300 Va. at 206; see also Plofchan, 299 Va. at 547-48. “We do not evaluate the merits of
the allegations, but only whether the factual allegations sufficiently plead a cause of action.”
Eubank, 300 Va. at 206. Whether these factual allegations and inferences, when assumed to be
true, constitute a “viable cause of action” is a question of law. See Terry v. Irish Fleet, Inc., 296
Va. 129, 139 (2018).
A.
Because Vlaming predicates his free-exercise claim exclusively on Article I, Section 16
of the Constitution of Virginia, we limit our analysis and holding to its specific text and
historical context. “Just as it remains the duty of the United States Supreme Court to interpret
the text of the Constitution of the United States, our duty as the highest court in Virginia is to
reach our own conclusion with respect to the meaning of Virginia’s foundational charter of
government.” Palmer v. Atlantic Coast Pipeline, LLC, 293 Va. 573, 586 (2017) (McCullough,
J., concurring).
As Virginia’s Supreme Court, we must uphold the Constitution of
Virginia and the individual rights it protects. If, upon a careful
inquiry, some of the clauses of our Declaration of Rights are found
to offer more protection than the protections found in the
Constitution of the United States, . . . we [must] do our duty and
honor the original public meaning of those provisions.
Id. at 587. As we recently emphasized, “[e]ven when principles of federal and state
constitutional law share common ground, there is ‘no good reason not to look first to Virginia’s
Constitution for the safeguards of the fundamental rights of Virginians.’” McKeithen v. City of
Richmond, 302 Va. ___, ___ n.7, 893 S.E.2d 369, 378 n.7 (2023) (citation omitted). Our
colleagues in the federal courts are of one mind with us on this view: “[S]tate courts are
absolutely free to interpret state constitutional provisions to accord greater protection” than
8
federal-court interpretations of “similar provisions of the United States Constitution.” Arizona v.
Evans, 514 U.S. 1, 8 (1995).
We begin our analysis with the observation that the “constitutional guarantees of
religious freedom have no deeper roots than in Virginia, where they originated, and nowhere
have they been more scrupulously observed.” Reid v. Gholson, 229 Va. 179, 187 (1985)
(footnote omitted). “No State has more jealously guarded and preserved the questions of
religious belief and religious worship as questions between each individual man and his Maker
than Virginia.” Jones v. Commonwealth, 185 Va. 335, 343 (1946).
Given Virginia’s historic role in the protection of religious liberties, the provisions in the
Constitution of Virginia have “a vitality independent of the Federal Constitution.” 1 A.E. Dick
Howard, Commentaries on the Constitution of Virginia 303 (1974) [hereinafter Howard,
Commentaries]. Article I, Section 16 of the Constitution of Virginia states:
That religion or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and
conviction, not by force or violence; and, therefore, all men are
equally entitled to the free exercise of religion, according to the
dictates of conscience; and that it is the mutual duty of all to
practice Christian forbearance, love, and charity towards each
other. No man shall be compelled to frequent or support any
religious worship, place, or ministry whatsoever, nor shall be
enforced, restrained, molested, or burthened in his body or goods,
nor shall otherwise suffer on account of his religious opinions or
belief; but all men shall be free to profess and by argument to
maintain their opinions in matters of religion, and the same shall in
nowise diminish, enlarge, or affect their civil capacities. And the
General Assembly shall not prescribe any religious test whatever,
or confer any peculiar privileges or advantages on any sect or
denomination, or pass any law requiring or authorizing any
religious society, or the people of any district within this
Commonwealth, to levy on themselves or others, any tax for the
erection or repair of any house of public worship, or for the
support of any church or ministry; but it shall be left free to every
person to select his religious instructor, and to make for his support
such private contract as he shall please.
9
This fulsome language stands in stark contrast to the single clause in the First
Amendment addressing religious liberty: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. To
some Virginians of the founding generation, this contrast was worrisome — enough so that
Virginia delayed ratification of the First Amendment for a year and a half “partly on the
argument that the provision for religious freedom was too weak.” 1 Howard, Commentaries,
supra, at 293. Whether that fear was justified we cannot say.
What we can say is that Article I, Section 16 of the Constitution of Virginia plainly
declares that “all men are equally entitled to the free exercise of religion, according to the
dictates of conscience.” Among other things, this means that “[n]o man . . . shall be enforced,
restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of
his religious opinions or belief” and that “all men shall be free to profess and by argument to
maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or
affect their civil capacities.” Va. Const. art. I, § 16.
The first sentence of Article I, Section 16 has been in the Constitution of Virginia since
1776. “The remaining two sentences in this section draw heavily on Thomas Jefferson’s 1786
Statute for Religious Freedom and first appeared in the 1830 Constitution in the Legislature
Article, where they remained until they were moved to the bill of rights in the 1971
Constitutional revision.” John Dinan, The Virginia State Constitution 83 (2d ed. 2014). This
addition to the Constitution of Virginia “gave that legislative enactment, theretofore generally
treated as of constitutional consequence, explicit constitutional status.” Brent Tarter,
Constitutional History of Virginia 96 (2023).
10
Because of the marked textual differences between the religion clauses of the First
Amendment of the United States Constitution and the free-exercise provisions of the
Constitution of Virginia, interpretations of the former inform but do not necessarily govern the
construction of the latter. This observation requires us to examine the informative influence of
Employment Division v. Smith, in which the United States Supreme Court held that a neutral law
of general applicability does not violate the Free Exercise Clause of the First Amendment even
when the law incidentally burdens religious views, speech, or practices. See 494 U.S. 872, 878-
79 (1990). Four justices in Smith — Justices Brennan, Marshall, Blackmun, and O’Connor —
strongly disagreed with its reasoning: “In my view, today’s holding dramatically departs from
well-settled First Amendment jurisprudence . . . and is incompatible with our Nation’s
fundamental commitment to individual religious liberty.” Id. at 891 (O’Connor, J., concurring in
the judgment). Many others outside the judiciary, including the American Civil Liberties Union,
expressed even stronger views in the aftermath of Smith. 2
Though Smith has been interpreted broadly by some lower courts and narrowly by
others, 3 the consensus view of Smith appears to be that the government has no obligation to
2
At a congressional hearing addressing Smith and Congress’s bipartisan response to it,
the then-president of the American Civil Liberties Union expressed the view of many:
My colleague . . . I think used very dramatic, but not overly
dramatic language when he described the Supreme Court’s
decision in Smith as the Dred Scott of first amendment law. I
would like to play out that analogy and say, by the same reasoning,
that would make this act, the Religious Freedom Restoration Act,
the civil rights act of first amendment law. It is that important, and
I am very, very honored to have a chance to support it.
The Religious Freedom Restoration Act: Hearing on S. 2969 Before the S. Comm. on the
Judiciary, 102d Cong. 171 (1992) (statement of Nadine Strossen, President, American Civil
Liberties Union).
3
In recent years, the United States Supreme Court has sought to ameliorate the
11
accommodate sincerely held religious beliefs if it is enforcing a law or policy that passes the
neutrality and general-applicability tests. See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407,
2421-22 (2022); Lund, supra note 3, at 847-48. Never expressly overruled, Smith continues to
be controversial, and calls for its reconsideration have not subsided in the 33 years following its
issuance. See, e.g., Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1888 (2021) (Alito, J.,
concurring) (“We should reconsider Smith without further delay. . . . It swept aside decades of
established precedent, and it has not aged well.”); id. at 1882 (Barrett, J., concurring) (“In my
view, the textual and structural arguments against Smith are more compelling.”); id. at 1931
(Gorsuch, J., concurring) (“Smith committed a constitutional error.”); City of Boerne v. Flores,
521 U.S. 507, 556-57 (1997) (O’Connor, J., dissenting) (“I remain of the view that Smith was
wrongly decided . . . .”); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 559 (1993) (Souter, J., concurring in part and concurring in the judgment) (“I have doubts
about whether the Smith rule merits adherence. I write separately . . . to express my view that, in
a case presenting the issue, the Court should re-examine the rule Smith declared.”). 4
inflexibility of the Smith doctrine, but even the attempt at doing so, some critics say, has
“warp[ed] the doctrinal fabric of free exercise.” Christopher C. Lund, Second-Best Free
Exercise, 91 Fordham L. Rev. 843, 845 (2022).
4
Many legal scholars question the historicity of Smith’s reasoning. See generally John
Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 138 (3d ed.
2011); Marc O. DeGirolami, Free Exercise by Moonlight, 53 San Diego L. Rev. 105, 106
(2016); W. Cole Durham, Jr. & Alexander Dushku, Traditionalism, Secularism, and the
Transformative Dimension of Religious Institutions, 1993 BYU L. Rev. 421, 448; Kent
Greenawalt, Religion and the Rehnquist Court, 99 Nw. U. L. Rev. 145, 154 (2004); Douglas
Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 1; Douglas Laycock, The
Supreme Court’s Assault on Free Exercise, and the Amicus Brief That Was Never Filed, 8 J.L. &
Religion 99, 102-07 (1990) [hereinafter Laycock, Amicus Brief]; Lund, supra note 3, at 875-76;
Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev.
1109, 1116-19 (1990); Michael W. McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1419-1513 (1990) [hereinafter McConnell,
Origins].
12
Despite these significant reservations, the School Board argues that we should fold
Smith’s reasoning into our interpretation of Article I, Section 16 of the Constitution of Virginia.
One of our colleagues agrees with the School Board. 5 See post at 94 (“[W]hen a law is neutral as
to religion, Article I, Section 16 is not violated.”); see also post at 80-81, 86-88, 92-94, 97-98,
106-09. We do not. In our opinion, the federal Smith doctrine is not and never has been the law
in Virginia, and its shelf life in the federal courts remains uncertain. 6
Our reasoning instead begins with a review of the drafting history of the first sentence of
Article I, Section 16. This provision “appeared in the 1776 Constitution and has been unchanged
since that time.” Dinan, supra, at 81. When a constitutional provision has remained unchanged
throughout Virginia constitutional history, we apply the original meaning of the provision when
first adopted. See Howell v. McAuliffe, 292 Va. 320, 345-47 (2016). 7
5
Justice Mann issues a separate opinion concurring in part and dissenting in part. Chief
Justice Goodwyn and Justice Powell join only as to Parts II, III, and IV of Justice Mann’s
separate opinion. For the sake of simplicity, we will refer to Justice Mann’s separate opinion as
“the dissent.” Justice Powell and Chief Justice Goodwyn also issue a separate opinion that
concurs in the result that we reach on the free-exercise issue but disagrees with our analysis of
the limiting principle applicable to Article I, Section 16 of the Constitution of Virginia.
6
Citing Tran v. Gwinn, 262 Va. 572 (2001), the School Board argues that we have
already adopted Smith as the governing standard under Article I, Section 16 of the Constitution
of Virginia. See Appellees’ Br. at 13. Our opinion in Tran, however, rejected the plaintiff’s
claim that a zoning ordinance “violated his First Amendment rights of religion” because the
ordinance did not “satisfy the Smith test.” Tran, 262 Va. at 577, 580. We did not once mention
Article I, Section 16 of the Constitution of Virginia in our opinion in Tran. “For stare decisis to
apply, ‘the court must have decided the issue for which the precedent is claimed; it cannot
merely have discussed it in dictum, ignored it, or assumed the point without ruling on it.’” Jones
v. Commonwealth, 293 Va. 29, 50 (2017) (quoting Bryan A. Garner et al., The Law of Judicial
Precedent 6 (2016)).
7
The dissent claims that in Howell we consulted legal history only after making “an
express finding that the constitutional provision cited as authority by the Governor was
ambiguous before turning to the legislative history of Article I, Section 7 of the Constitution of
Virginia.” Post at 85 note 4. Had we not made such a finding, the dissent implies, the historical
meaning of a constitutional text would not have been considered. The dissent’s factual premise
and legal conclusion are both incorrect. The ambiguity observation in Howell only pertained to
13
During the debate preceding the adoption of the 1776 Constitution of Virginia, George
Mason proposed the following provision to protect religious liberty:
That religion, or the duty which we owe to our CREATOR, and the
manner of discharging it, can be (directed) only by reason and
conviction, not by force or violence; and therefore, that all men
should enjoy the fullest toleration in the exercise of religion,
according to the dictates of conscience, unpunished and
unrestrained by the magistrate, unless, under colour of religion,
any man disturb the peace, the happiness, or safety of society.
And that it is the mutual duty of all to practice Christian
forbearance, love, and charity towards each other.
George Mason, Committee Draft of the Virginia Declaration of Rights, in 1 The Papers of
George Mason 282, 284-85 (Robert A. Rutland ed., 1970) (emphasis added). Seeking more
robust protection for religious freedom, James Madison recommended the adoption of a broader
provision:
That religion, or the duty which we owe to our CREATOR, and the
manner of discharging it, can be directed only by reason and
conviction, not by force or violence; and therefore, that all men are
equally entitled to enjoy the free exercise of religion, according to
the dictates of conscience, unpunished and unrestrained by the
magistrate, [u]nless the preservation of equal liberty and the
existence of the State are manifestly endangered; [a]nd that it is the
Article V, Section 12, which governs gubernatorial clemency powers. See Howell, 292 Va. at
343. Our extensive review of legal history, however, pertained to our interpretation of Article 1,
Section 7, the anti-suspension provision that “has been repeated, without alteration, in all
subsequent versions of the Constitution of Virginia.” Id. at 345.
In another attempt to weaken the precedential weight of Howell, the dissent claims that
Howell “directly contradicts” our earlier opinion in Elliott v. Ashby, 104 Va. 716, 718 (1905).
Post at 85 note 4. In that case, we stated that, on the issue then before the Court, we had “a
judgment of this court, which has remained unquestioned as the law of this state for more than a
quarter of a century, construing a provision of the Constitution and a statute passed in pursuance
thereof, and the construction placed upon them has not only been unchallenged, but must be
taken as having been approved by the adoption of the identical language in the Code and the
Constitution.” Elliott, 104 Va. at 718 (emphasis added). Howell did not overlook or overrule
any “unquestioned” or “unchallenged” prior decisions that were later folded into a reenacted
statutory or constitutional provision. Nor do we in the present case. The dissent’s contention to
the contrary is unsupportable.
14
mutual duty of all to practice Christian forbearance, love, and
charity towards each other.
James Madison, Madison’s Amendments to the Declaration of Rights, in 1 The Papers of James
Madison 174, 174-75 (William T. Hutchinson & William M.E. Rachal eds., 1962) [hereinafter
Madison’s Amendments] (emphasis added) (footnotes omitted).
Mason and Madison both held strong views of religious liberty. Their only disagreement
appears to have been about the scope of the limiting principle applicable to that liberty interest.
While Mason believed that the Commonwealth could limit religious liberty if doing so was
necessary to protect “the peace, the happiness, or safety of society,” Mason, supra, at 284-85,
Madison believed that the Commonwealth could only interfere with religious practices “if the
preservation of equal liberty, and the existence of the State [would] be manifestly endangered,”
Madison’s Amendments, supra, at 174-75.
As Justice Sandra Day O’Connor, a strong critic of Smith, pointed out: “Although
Madison endorsed a more limited state interest exception than did Mason, [their] debate would
have been irrelevant if either had thought the right to free exercise did not include a right to be
exempt from certain generally applicable laws.” Flores, 521 U.S. at 556-57 (O’Connor, J.,
dissenting); see also McConnell, Origins, supra note 4, at 1463 (noting that “the dispute between
Madison and Mason would not have mattered if the proviso were of no legal significance, and
the proviso would have been of no legal significance if the ‘full and free exercise of religion’ did
not include the right of exemption from generally applicable laws that conflict with religious
conscience”).
In June 1776, the Fifth Virginia Convention at Williamsburg adopted a “Declaration of
Rights” and incorporated it into the first Constitution of Virginia. The Declaration asserted that
individuals “have certain inherent rights, of which, when they enter into a state of society, they
15
cannot, by any compact, deprive or divest their posterity.” Va. Declaration of Rights art. I
(1776). One such inherent right was the “free exercise of religion” compelled only by the
“dictates of conscience.” Id. at art. XVI.
Conspicuously absent in the Declaration of Rights, however, was any express resolution
of Mason and Madison’s debate over the proper limiting principle. There must be one, of
course. No matter its source, no legal right is absolute in all circumstances and at all times, no
matter the effect on others. As Justice Holmes observed:
All rights tend to declare themselves absolute to their logical
extreme. Yet all in fact are limited by the neighborhood of
principles of policy which are other than those on which the
particular right is founded, and which become strong enough to
hold their own when a certain point is reached.
Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349, 355 (1908); see also 1 William Blackstone,
Commentaries *125 (stating that “every man, when he enters into society, gives up a part of his
natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the
advantages of mutual commerce, obliges himself to conform to those laws, which the community
has thought proper to establish”).
We believe that the best inference to draw from this textual omission of a limiting
principle, as Justice O’Connor observed, is that “the Virginia Legislature intended the scope of
its free exercise provision to strike some middle ground between Mason’s narrower and
Madison’s broader notions of the right to religious freedom.” Flores, 521 U.S. at 557
(O’Connor, J., dissenting); see also McConnell, Origins, supra note 4, at 1463 (“It is fair to
assume . . . that the state’s interest must fall somewhere between . . . Mason’s broad
formulation . . . [and] Madison’s more limited formulation.”). Virginia’s search for this “middle
ground,” Flores, 521 U.S. at 557 (O’Connor, J., dissenting), did not end with the adoption of the
16
1776 Constitution of Virginia. Following robust debate, the Virginia General Assembly enacted
Thomas Jefferson’s Act for Religious Freedom in 1786. See Code § 57-1; 1 Howard,
Commentaries, supra, at 291-92. Interpreting the limits of religious liberty, the Act for Religious
Freedom provided that civil government could interfere with an individual’s sincerely held
religious principles only when these “principles break out into overt acts against peace and good
order.” Code § 57-1. As we later elaborated:
It is well to remember, too, that the act for religious freedom holds
this language: “That to suffer the civil magistrate to intrude his
powers into the field of opinion, and to restrain the profession or
propagation of principles on supposition of their ill-tendency, is a
dangerous fallacy, which at once destroys all religious liberty . . . ;
that it is time enough for the rightful purposes of civil government,
for its officers to interfere, when principles break out into overt
acts against peace and good order.”
Protestant Episcopal Educ. Soc’y v. Churchman, 80 Va. 718, 776 (1885).
This famous statute set the baseline for two centuries of thought on the relationship
between religion and government in a free society. Jefferson’s Act for Religious Freedom has
been viewed as “the most decisive element in an epochal shift in the Western world’s approach
to relations between civil and religious spheres of life after fourteen centuries.” Martin E. Marty,
The Virginia Statute Two Hundred Years Later, in The Virginia Statute for Religious Freedom:
Its Evolution and Consequences in American History 1, 1 (Merrill D. Peterson & Robert C.
Vaughan eds., 1988). The Act arose out of “[t]he struggle which took place in Virginia in its last
days as a colony and its early days as a state,” and “it influenced the American theories of
Church-State separation and religious freedom more than any other historical factor.” 1 Anson
Phelps Stokes, Church and State in the United States 366 (1950).
As recently as 2016, the Virginia General Assembly reaffirmed the modern salience of
Jefferson’s restatement of Virginia’s traditional view of religious liberty: “The General
17
Assembly does hereby declare again that the rights asserted in [the Act for Religious Freedom]
are the natural and unalienable rights of mankind and this declaration is the policy of the
Commonwealth of Virginia.” Code § 57-2. This understanding of religious liberty as a “natural
and unalienable” right explains the rationale behind Jefferson’s limiting principle in the Act for
Religious Freedom. Drawing upon Lockean principles of social-contract theory, Jefferson
reasoned that “our rulers can have no authority over such natural rights, only as we have
submitted to them.” Thomas Jefferson, Notes on Virginia, in 8 The Works of Thomas Jefferson
249, 399-400 (H.A. Washington ed., 1884).
Because “[t]he rights of conscience we never submitted,” Jefferson stated, “[t]he
legitimate powers of government extend to such acts only as are injurious to others.” Id. at 400.
Explaining what he meant by “injurious” acts, Jefferson gave an example: “[I]t does me no
injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor
breaks my leg.” Id. In the Act for Religious Freedom, Jefferson restated this common-sense
limitation in legal terms: The government could only curtail the free exercise of religion when it
resulted in “overt acts against peace and good order,” Code § 57-1. The manifest intent of the
Act was to “put teeth into the constitutional guarantee of rights of conscience” protected by the
Constitution of Virginia. 1 Howard, Commentaries, supra, at 292.
Considering the drafting history of the Constitution of Virginia — its specific text and
historical context — along with the 1786 Act for Religious Freedom and its reaffirmation in
2016, we hold that in the Commonwealth of Virginia, the constitutional right to free exercise of
religion is among the “natural and unalienable rights of mankind,” Code § 57-2, and that “overt
acts against peace and good order,” Code § 57-1, correctly defines the limiting principle for this
18
right and establishes the duty of government to accommodate religious liberties that do not
transgress these limits. As James Madison presciently observed:
[T]here is one State at least, Virginia, where religious liberty is
placed on its true foundation and is defined in its full latitude. The
general principle is contained in her declaration of rights, prefixed
to her Constitution: but it is unfolded and defined, in its precise
extent, in the act of the Legislature, usually named the Religious
Bill, which was passed into a law in the year 1786.
James Madison, Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments., in
Madison’s “Detached Memoranda,” 3 Wm. & Mary Q. 551, 554 (Elizabeth Fleet ed., 1946)
[hereinafter Madison’s Memoranda]. 8
The limiting principle — overt acts against peace and good order — does not encompass
all behaviors that may conceivably be regulated by all government laws, edicts, and policies, but
rather only a distinct subcategory of unlawful behavior. See generally John A. Ragosta,
Wellspring of Liberty 155-60 (2010); Michael W. McConnell, Freedom from Persecution or
Protection of the Rights of Conscience?: A Critique of Justice Scalia’s Historical Arguments in
City of Boerne v. Flores, 39 Wm. & Mary L. Rev. 819, 834-37 (1998); Branton J. Nestor, The
Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion, 42
Harv. J.L. & Pub. Pol’y 971, 977-99 (2019).
8
Justice Powell’s opinion argues that we have judicially amended Article I, Section 16 to
include the peace-and-good-order limitation expressly stated in Jefferson’s 1786 Act for
Religious Freedom. See post at 74-75. That argument, however, is not with us but with James
Madison. As noted above, Madison explained that the “general principle” of the constitutional
right to free exercise of religion was “unfolded and defined, in its precise extent” by Jefferson’s
famous Act. Madison’s Memoranda, supra, at 554 (emphasis added). We are confident that
Madison understood the difference between interpreting a constitutional provision and rewriting
it. And no Virginia court has ever suggested that he misstated the original meaning of religious-
liberty provisions of the Constitution of Virginia. We thus make no apologies for honoring
Madison’s views on this subject.
19
Instead, “peace and safety” constitutional provisions “identify a narrower subcategory of
the general laws” in an effort to ensure that “the free exercise provisions would exempt
religiously motivated conduct from these laws up to the point that such conduct breached public
peace or safety.” McConnell, Origins, supra note 4, at 1462. Under this proviso, any duty to
accommodate an individual’s religious liberty could not undermine “the government’s right to
protect public peace and safety.” Id. at 1464. “There is no free exercise right,” to mention just a
couple of obvious examples, “to kidnap another person for the purpose of proselytizing, or to
trespass on private property . . . to protest immoral activity.” Id.
Prior to Smith, the prevailing federal doctrine recognized that claims for religious
exemptions from neutral laws could be rejected when “[t]he conduct or actions [in question]
have invariably posed some substantial threat to public safety, peace or order.” Sherbert v.
Verner, 374 U.S. 398, 403 (1963) (emphasis added). Protecting the public from such a threat can
constitute a “compelling state interest,” the United States Supreme Court held prior to Smith,
only in situations involving “the gravest abuses, endangering paramount interest[s].” Id. at 406
(citation omitted). These must be “interests of the highest order,” and any government coercion
must be “narrowly tailored to achieve those interests.” Fulton, 141 S. Ct. at 1881 (citation
omitted). While not endorsing or rejecting the application of this standard in specific federal
cases, we believe that Sherbert correctly framed the nature of the limiting principle. It captured
well the historical view that “strict scrutiny” policed the government’s claim that such a threat
existed in the first place and that, even if it did, the threat could not be defused and the contest
20
sidelined by “less restrictive means.” See id. at 1893 (Alito, J., concurring in judgment)
(applying Sherbert and its progeny). 9
And this should not surprise us. The state constitutional provisions and statutes that
historically protected the free exercise of religion unless it endangered the public peace, safety,
or order have been considered “precursor[s] to the compelling-interest test and impl[y] that the
free exercise of religion was understood to include an exemption from generally applicable
laws.” Michael W. McConnell, Should Congress Pass Legislation Restoring the Broader
Interpretation of Free Exercise of Religion?, 15 Harv. J.L. & Pub. Pol’y 181, 181-82, 185-86
(1992) (noting that the United States Supreme Court had “expounded” upon the “peace and
safety” provisos in many early state constitutions by putting them “in more modern terms by
stating that a burden on the free exercise of religion is constitutional only if there is a compelling
government interest that justifies that burden”); see also Laycock, Amicus Brief, supra note 4, at
102-03 (noting that exceptions were necessary to free-exercise clauses through “peace and
safety” limits for state constitutional provisions and the parallel “compelling interest” test for the
federal constitutional provision because “primacy of conscience was the starting presumption”).
After Sherbert and before the demise of the peace-and-good-order limiting principle in Smith, the
United States Supreme Court continued to link the principle to Sherbert’s compelling-state-
9
Both legal scholars, see Stephanie H. Barclay, The Historical Origins of Judicial
Religious Exemptions, 96 Notre Dame L. Rev. 55, 113-16 (2020), and three Supreme Court
Justices, see Fulton, 141 S. Ct. at 1909 (Alito, J., concurring in the judgment), view the
reasoning in Commonwealth v. Cronin, 2 Va. Cir. 488, 499-505 (1855), as an early Virginia
example of the free-exercise methodology that was later folded into the Sherbert standard. The
author of Cronin, Judge John A. Meredith, was a distinguished judge of the Richmond Circuit
Court, a former Virginia State Senator, and a Delegate to the Virginia Constitutional Convention
of 1850. See Miscellany, 6 Va. L.J. 250, 250-51 (1882).
21
interest test. See, e.g., McDaniel v. Paty, 435 U.S. 618, 631 n.2 (1978) (Brennan, J., concurring);
Wisconsin v. Yoder, 406 U.S. 205, 219-21, 229-30 (1972). 10
We need not catalogue, for our resolution of this appeal, the subset of “overt acts” that
would forfeit an individual’s constitutional right to free exercise of religion and relieve the
government from any constitutional duty of accommodation. Nor is it necessary to speculate on
putative compelling state interests in other contexts. This case comes before us from the
dismissal of a complaint (on demurrer and in part on a plea in bar) without any consideration of
evidence. Our standard of review requires us to assume as true each of Vlaming’s factual
allegations and any reasonable inferences from those allegations. Those allegations claim that
the School Board fired Vlaming because he had refused to affirmatively use a masculine pronoun
to refer to Doe, a biologically female student. Had he done so, Vlaming claims, he would have
violated his sincerely held religious beliefs. The accommodation that he asked for was
straightforward: To honor his religious convictions, he would use Doe’s preferred name (both in
10
We agree with our concurring colleagues’ observation that the peace-and-good-order
limiting principle does not literally appear in the text of Article I, Section 16. Post at 74. But we
disagree with their argument that the textual omission of this historical principle renders it
irrelevant to the task of determining the presence of (using Sherbert’s modern turn of phrase) a
compelling state interest. After all, there is no textual limitation of any kind — whether written
in historical or modern verbiage — in Article I, Section 16. But that cannot mean, as Holmes
cautioned, that the mere declaration of a legal right renders it invariably absolute in any and all
contexts no matter the circumstances. Supra at 16.
The concurrence’s textual-omission argument thus proves too much. If it were true, the
right to free exercise would be limitless. Neither our concurring colleagues nor we believe that.
In the clearest of terms, they accept Sherbert’s “compelling state interest” formulation of the
limiting principle even though not a word of it appears in the text of either the First Amendment
to the United States Constitution or Article I, Section 16 of the Constitution of Virginia. We do
too. But for us the modern formulation of the principle must be understood in its historical
context. That is exactly what Sherbert was saying, two sentences before applying the
“compelling state interest” test, when it recognized that binding federal precedent interpreting
the First Amendment “invariably” refused to recognize the right to free exercise of religion when
it “posed some substantial threat to public safety, peace or order.” Sherbert, 374 U.S. at 403.
22
English and in French) and would avoid using any third-person pronouns to refer to Doe. The
School Board, according to Vlaming, rejected this accommodation and compelled him to use
government-approved pronouns instead of using only Doe’s preferred name.
The issue here is not whether the School Board’s policies forbidding discrimination and
harassment of students applied (as the School Board asserts) or did not apply (as Vlaming
asserts) to the compelled-speech situation alleged in the complaint. The issue is whether
Vlaming’s sincerely held religious beliefs caused him to commit overt acts that “invariably
posed some substantial threat to public safety, peace or order,” Sherbert, 374 U.S. at 403, and if
so, whether the government’s compelling state interest in protecting the public from that threat,
when examined under the rigors of strict scrutiny, could be satisfied by “less restrictive means,”
Fulton, 141 S. Ct. at 1893 (Alito, J., concurring in the judgment). 11
When religious liberty merges with free-speech protections, as it does in this case, mere
“objectionable” and “hurtful” religious speech or, as in this case, nonspeech, is not enough to
meet this standard. Id. at 1924. “In an open, pluralistic, self-governing society, the expression of
an idea cannot be suppressed simply because some find it offensive, insulting, or even
wounding.” Id. A lawful government “is not free to interfere with speech for no better reason
than promoting an approved message or discouraging a disfavored one, however enlightened
11
Justice Powell’s opinion criticizes our analysis because we fail to distinguish between
the semantic variation between the limiting principle expressed as “peace and good order” in
Jefferson’s Act and its restatement as “safety, peace or order” in Sherbert. Post at 77-78. As the
historical record shows, however, such abstract locutions share the same essential meaning: “It
is basic that no showing merely of a rational relationship to some colorable state interest would
suffice; in this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering
paramount interest, give occasion for permissible limitation.’” Sherbert, 374 U.S. at 406
(citation omitted). Strictly construed, only state interests “of the highest order” fit this
categorical limitation. Fulton, 141 S. Ct. at 1881 (citation omitted). Unlike our dissenting
colleagues, we see this modern restatement of the limiting principle as wholly in sync with its
conceptual antecedents.
23
either purpose may strike the government.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.
of Bos., 515 U.S. 557, 579 (1995). “Government may neither compel affirmation of a repugnant
belief,” Sherbert correctly declared, “nor penalize or discriminate against individuals or groups
because they hold religious views abhorrent to the authorities.” 374 U.S. at 402.
The essential character of this jurisprudential view seeks to protect diversity of thought,
diversity of speech, diversity of religion, and diversity of opinions. Our Constitutional Republic,
framed upon principles of classical liberalism, cannot be true to itself if it curates between those
who can and those who cannot participate in the public marketplace of ideas and retreat, when
necessary, to the private sanctuary of conscience. Absent a truly compelling reason for doing so,
no government committed to these principles can lawfully coerce its citizens into pledging verbal
allegiance to ideological views that violate their sincerely held religious beliefs.
Applying these principles to the presumptively accurate factual allegations in the
complaint and all reasonable inferences therefrom, we hold that Vlaming has alleged a legally
viable claim under Article I, Section 16 of the Constitution of Virginia. The circuit court erred in
dismissing this claim on demurrer on the ground that Vlaming’s factual allegations, even if
assumed to be true, were insufficient as a matter of law to state a free-exercise claim under
Article I, Section 16 of the Constitution of Virginia.
B.
On nearly every aspect of the free-exercise issue, the dissent takes a different view.
Using a thematic narrative, the dissent exclaims that our “dabble” in the “political” and
“ideological issues of the day,” post at 143, “tears at the very values that underpin Article I,
Section 16” by “creating a hierarchy of legal protections for ideas and expression” based wholly
on some unstated “epistemological source,” post at 104. Opining that our dabble strategy crosses
24
“the threshold into a world of academic speculation,” the dissent fears that we leave “our gates
open, unguarded” against the “injustice” of religious people seeking to protect their religious
liberties. Post at 81-82.
To close the gates to this parade of horribles, the dissent advocates that we adopt the
federal Smith thesis and justifies it by relying on four sources: (1) the plain text of Article I,
Section 16, (2) historical constitutional context, (3) our prior judicial precedent, and (4) the role
of the 1971 Constitution. All of these sources allegedly reaffirm the view that the federal Smith
standard is now and has been the law of Virginia since 1776. 12 We are unpersuaded.
1.
The “plain language” of Article I, Section 16, as the dissent reads it, adopts Smith’s
“neutrality analysis,” post at 81, which extinguishes any claim of religious liberty that collides
with a neutral, secular law of general applicability. We fail to see how this could possibly be
true. Article I, Section 16 includes 238 words and 8 independent clauses. See Va. Const. art. I,
§ 16. The second independent clause states that “all men are equally entitled to the free exercise
of religion, according to the dictates of conscience.” Id. Another independent clause states that
“[n]o man . . . shall be enforced, restrained, molested, or burthened in his body or goods, nor
shall otherwise suffer on account of his religious opinions or belief,” and yet another declares
12
Our dissenting colleague says that he is not “advocating for the Smith standard.” Post
at 93. Instead, Justice Mann believes he is merely advocating “for a Virginia standard which
supports strict scrutiny of non-neutral laws.” Post at 93 (emphasis added). But actually — that
is the Smith standard. “Smith held that laws incidentally burdening religion are ordinarily not
subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally
applicable.” Fulton, 141 S. Ct. at 1876 (emphasis added). “Failing either the neutrality or
general applicability test [as formulated by Smith] is sufficient to trigger strict scrutiny.”
Kennedy, 142 S. Ct. at 2422. Justice Mann then goes on to reject criticism of Smith on the
ground that such criticism “does not make Smith ‘bad law’ or any less instructive.” Post at 93
note 9. We can offer only one response to this observation: Whether it is being advocated or
merely admired, the Smith standard is not and has never been Virginia law.
25
that “all men shall be free to profess and by argument to maintain their opinions in matters of
religion.” Id.
Passing over these unqualified textual commands, the dissent fixates on this independent
clause — “and the same shall in nowise diminish, enlarge, or affect their civil capacities.” Id.
Tying that clause to the earlier “opinions in matters of religion” phrase, the dissent discovers its
zeitgeist: The Constitution of Virginia only protects “a person’s religious beliefs” and offers no
protection for “religiously motivated activities.” Post at 84. This argument stands on its own
shoulders. No Virginia court has ever so held. Since 1776, the Constitution of Virginia has
expressly protected “the free exercise of religion, according to the dictates of conscience,” and
has declared that no Virginia government can enforce, restrain, molest, burden or “otherwise
suffer” anyone because of their religious views. Va. Const. art. I, § 16 (emphases added). That
is quite plainly worded. The Civil Capacities Clause doubles down on the earlier provisions by
specifically protecting the “civil capacities” of religious people. 13
We understand, as everyone does, that some limiting principle on this textually
unqualified right must be recognized. With equal certitude, however, we know that the
13
Employing a unique “grammatical analysis,” the dissent contends that the “rule of the
last antecedent” supports the dissent’s interpretation. Post at 83-84. It is a valuable rule, to be
sure, but it has no applicability here. The independent clauses in Article I, Section 16 present an
array of protections (e.g., “free exercise of religion, according to the dictates of conscience”;
“shall [not] otherwise suffer on account of his religious opinions or belief”; and “free to profess
and by argument to maintain their opinions in matters of religion”), and none of these phrases
can be contextually limited by “the same shall in nowise diminish, enlarge, or affect their civil
capacities.” No Virginia court has held otherwise. Under settled principles, the last-antecedent
rule plays no role when “the sense of the passage requires a different construction.” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 146 (2012) (quoting
Sim’s Lessee v. Irvine, 3 U.S. (3 Dall.) 425, 444 n.* (1799)); see also Henry Campbell Black,
Handbook on the Construction and Interpretation of the Laws § 73, at 224 (2d ed. 1911); 2A
Norman J. Singer & Shambie Singer, Sutherland’s Statutes and Statutory Construction § 47:33,
at 501 (7th ed. 2014).
26
limitation cannot simply be to “keep your religion to yourself.” It would be alarming indeed to
think that in the Commonwealth of Virginia, a religious person needs a constitutional right
merely to hold a silent belief or opinion that does not change a thing he does or does not do. Nor
should the limiting principle be that no right to free exercise of religion exists at all in the face of
a secular law that is generally applicable and neutral. Endorsed by Smith and advocated by the
dissent, that rubric extinguishes the right to free exercise for anyone within the reach of such a
law. It is an eliminating, not limiting, principle. We reject it.
Before discerning the scope of any limiting principle, however, we first recognize that the
right to “exercise” one’s religion, if it means anything, includes the right to speak or not speak
and to act or not act based upon one’s religious sincerely held opinions or beliefs. The leading
federal case, Wisconsin v. Yoder, summarily rejected the idea that “religious beliefs are
absolutely free from the State’s control but . . . ‘actions,’ even though religiously grounded, are
outside the protection of the First Amendment.” 406 U.S. at 219-20. The plain meaning of “free
exercise,” Yoder made clear, cannot be displaced by “the idea that religiously grounded conduct
is always outside the protection of the Free Exercise Clause.” Id. (emphasis added). In religion,
as in many other areas of life, Yoder observed, “belief and action cannot be neatly confined in
logic-tight compartments.” Id. at 220. 14 Put another way, the First Amendment’s free-exercise
14
See also Thomas v. Review Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 717-18 (1981)
(explaining that “a burden upon religion exists” when “the state conditions receipt of an
important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit
because of conduct mandated by religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs”); Cantwell v. Connecticut, 310 U.S.
296, 303 (1940) (recognizing that the right to free exercise “embraces two concepts, — freedom
to believe and freedom to act”); 2 St. George Tucker, Blackstone’s Commentaries, Editor’s App.
Note G, at 4 (1803) (“Liberty of conscience in matters of religion consists in the absolute and
unrestrained exercise of our religious opinions, and duties, in that mode which our own reason
and conviction dictate . . . .” (emphasis added)); James Madison, Memorial and Remonstrance
Against Religious Assessments, in 8 The Papers of James Madison 295, 299 (Robert A. Rutland
27
right “protects not only the right to harbor religious beliefs inwardly and secretly. It does
perhaps its most important work by protecting the ability of those who hold religious beliefs of
all kinds to live out their faiths in daily life through ‘the performance of (or abstention from)
physical acts.’” Kennedy, 142 S. Ct. at 2421 (citation omitted). We hold the same views about
the free-exercise right recognized in Article I, Section 16 of the Constitution of Virginia.
We are also unpersuaded by any assertion that Article I, Section 16’s protection of
“religious opinions or belief” only forbids government from causing a religious person (to the
extent that he holds opinions or has beliefs) to “suffer” diminished “civil capacities.” 15 The Civil
Capacities Clause enters the text with the conjunction “and,” signaling an addition to, not a
limitation of, the overarching principles. These principles guarantee that all individuals are
“equally entitled to the free exercise of religion, according to the dictates of conscience,” that
none “shall otherwise suffer on account of his religious opinions or belief,” and that “all men
shall be free to profess and by argument to maintain their opinions in matters of religion,” Va.
et al. eds., 1973) (insisting that “[i]t is the duty of every man to render to the Creator such
homage and such only as he believes to be acceptable to him” and that religious liberties protect
“[t]his duty”); McConnell, Origins, supra note 4, at 1460 (“In the biblical tradition, ‘duties’ to
God included actions, perhaps all of life, and not just speech and opinion. So according to
Virginia, the right of free exercise extended to all of a believer’s duties to God and included a
choice of means as well as ends.”); id. at 1462 (noting that provisos limiting free exercise, such
as the one in Jefferson’s Act for Religious Freedom, to protect “peace and good order” confirm
“that the free exercise right was not understood to be confined to beliefs” because “[b]eliefs
without more do not have the capacity to disturb the public peace and safety”); id. at 1488-89
(contending that “the term ‘free exercise’ makes clear that the clause protects religiously
motivated conduct as well as belief” because “[a]s defined by dictionaries at the time of the
framing, the word ‘exercise’ strongly connoted action”).
15
The dissent asserts that Vlaming limited his “free-exercise cause of action based on his
diminished civil capacity as a public-school teacher.” Post at 84. We disagree. Vlaming’s
amended complaint, trial court briefs, appellate briefs, and oral argument before our Court make
clear that he has invoked the entirety of Article I, Section 16 in support of his free-exercise
claim. See, e.g., J.A. at 31-32, 168-71; Appellant’s Br. at 20-23, 35-36; Oral Argument Audio at
1:40 to 2:12, 42:15 to 42:48.
28
Const. art. I, § 16. 16 This language parallels Jefferson’s 1786 Act for Religious Freedom that
forbids the government from imposing “temporal punishment, or burthens, or . . . civil
incapacitations” on those expressing “religious opinions.” Code § 57-1 (emphasis added). 17
Even if Article I, Section 16 only protected the “civil capacities” of religious people,
Vlaming’s allegations of harm to his tenured public-teaching position, secured by a contract
enforceable by a suit at law, describe a legally cognizable diminishment of his “civil capacities.”
See J.A. at 31, 168-69, 170. The expression “civil capacities” has deep roots in legal history and
jurisprudential theory. 18 Under most, if not all such definitions, civil capacities come wholly
from positive-law pronouncements, not natural-law precepts. Positive law establishes “forms of
internal polity” that determine “the civil capacities and incapacities” of parties to the social
contract. See Polydore v. Prince, 19 F. Cas. 950, 952 (D. Me. 1837) (No. 11, 257). In this
context, “civil capacities” is an idiomatic phrase that refers to the bundle of positive-law rights
that enable individuals to participate fully in all lawful civil, political, and legal spheres of life.
16
See Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236 (2011) (recognizing that “linking
independent ideas is the job of a coordinating conjunction like ‘and’”); Scalia & Garner, supra
note 13, at 141 (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42 (1989))
(noting that “the conjunction and” is “essentially equivalent to together with”).
17
Eight other state constitutions prohibit impairments of civil “capacities” or the creation
of civil “incapacities” when directed against religious beliefs, opinions, or actions. See, e.g., Ala.
Const. art. I, §§ 3, 3.02; Colo. Const. art. II, § 4; Idaho Const. art. I, § 4; Ill. Const. art. I, § 3;
Iowa Const. art. I, § 4; Ky. Const. § 5; R.I. Const. art. I, § 3; W. Va. Const. art. III, § 15.
18
See generally Douglas G. Smith, Citizenship and the Fourteenth Amendment, 34 San
Diego L. Rev. 681, 747-52 (1997) (describing the origin of the concept of civil capacities in
Roman law, which granted “certain privileges of the civil law” to citizens, making “civil
capacities inherent in citizenship”); 1 John Bouvier, A Law Dictionary (10th ed. 1860) (defining
“in the law sense” the word “capacity” to include “the performance of civil acts” such as “to
make a contract, and the like” (emphasis added)); 1 Timothy Cunningham, A New and Complete
Law Dictionary 461 (1764) (defining “[c]apacity” in the legal sense to include the right “to sue
and be sued”).
29
In contrast, natural rights were historically understood as unalienable because they are
inherent in what it means to be human. Such rights preexisted the social contract and were not
created by civil government. The Founders keenly appreciated this distinction, particularly when
discussing constitutional rights. 19 The right to religious liberty, as Jefferson’s Act declared, was
a “natural right” bestowed by the “Almighty God” and not by any assembly of mortal men.
Code § 57-1. This ancient belief has fared well in Virginia over the last two centuries. As
recently as 2016, the General Assembly reaffirmed its view that religious liberty is one of the
“natural and unalienable rights of mankind and this declaration is the policy of the
Commonwealth of Virginia.” Code § 57-2.
A natural-law right (such as religious liberty) should be distinguished from a mere “civil
capacity” recognized in the social contract of lesser man-made laws (such as the right to make
and legally enforce a contract). We illustrated this point in Perry, a case in which we held that a
trial court had violated a witness’s religious liberty by “allowing [a] witness to be questioned [by
a prosecutor] on his voir dire touching his religious opinions.” Perry v. Commonwealth, 44 Va.
19See, e.g., 1 Annals of Cong. 454 (Joseph Gales ed., 1834) (recording James Madison’s
description of the Bill of Rights in a speech to Congress as containing, inter alia, “positive
rights” that “result from the nature of the compact” such as “[t]rial by jury [that] cannot be
considered as a natural right, but a right resulting from a social compact which regulates the
action of the community, but is as essential to secure the liberty of the people as any one of the
pre-existent rights of nature”); Additional Letters from the Federal Farmer to the Republican
(Dec. 25, 1787), in 2 The Complete Anti-Federalist 256, 261 (Herbert J. Storing ed., 1981) (“Of
rights, some are natural and unalienable, of which even the people cannot deprive individuals:
Some are constitutional or fundamental; these cannot be altered or abolished by the ordinary
laws; but the people, by express acts, may alter or abolish them — These, such as the trial by
jury, the benefits of the writ of habeas corpus, &c. individuals claim under the solemn compacts
of the people, as constitutions, or at least under laws so strengthened by long usage as not to be
repealable by the ordinary legislature — and some are common or mere legal rights, that is, such
as individuals claim under laws which the ordinary legislature may alter or abolish at pleasure.”);
2 James Kent, Commentaries on American Law 1 (1827) (“The rights of persons in private life
are either absolute, being such as belong to individuals in a single unconnected state; or relative,
being those which arise from the civil and domestic relations.”).
30
(3 Gratt.) 632, 645 (1846). The right to testify, Perry explained, was not a natural-law right
inherent in any religious practice or belief. The inability to testify because of proscribed
opinions was a mere “civil incapacity” that comes “[f]rom the law” promulgated by the “civil
institutions of the country.” Id. at 643-44. Even so, it could not be said that depriving the
witness of his man-made right to testify did not violate his natural-law right to religious liberty.
To the contrary, we declared, “the Constitution says that religious opinions shall not lessen ‘civil
capacities.’” Id. at 644. Perry was making the point that the constitutional right to religious
liberty in the Commonwealth of Virginia not only protects core attributes of religion (beliefs and
practices) but also wholly non-religious civil capacities that are not derived from natural law.
Viewing Vlaming’s allegations in their most favorable light, we hold that his “civil
capacity” as a tenured public employee constituted a right that comes “[f]rom the law” adopted
by the “civil institutions of the country,” id., and, as such, could not be diminished or affected by
Vlaming’s religious opinions or beliefs. Applying settled principles of law, Vlaming had an
intangible property interest in his continued employment and a corresponding right not to be
terminated without just cause. 20 His public teaching contract was not terminable at will, see J.A.
at 5, 42, and statutory provisions protected his legal right not to be fired or suspended from his
job without just cause. 21
20
See Board of Regents of State Colls. v. Roth, 408 U.S. 564, 576-77 (1972) (recognizing
that public employees in teaching positions held under tenure had intangible property interests in
their continued employment); Perry v. Sindermann, 408 U.S. 593, 601 (1972) (same); 4 Eugene
McQuillin, The Law of Municipal Corporations § 12:315, at 616-18 (3d ed. rev. 2019) (“A law
creates a property interest in continued employment when it places restrictions on the grounds
upon which an employee may be discharged.”).
21
See Code §§ 22.1-304(B) (providing that teachers “employed after completing the
probationary period shall be entitled to continuing contracts during good behavior and competent
service”), -307 (providing that “[t]eachers may be dismissed for incompetency, immorality,
noncompliance with school laws and regulations, disability as shown by competent medical
31
2.
We next turn to the dissent’s view that legal history supports the contention that the
religious-liberty clauses of the Constitution of Virginia were not intended to protect religious
people from neutral, secular laws that indirectly infringe upon religious liberty. “Rather,” the
dissent opines, “the framers of Article I, Section 16 intended to combat the religious intolerance
and establishment that pervaded Colonial Virginia.” Post at 87. We reject this view because it
tightly fuses the related, but nonetheless distinct, free-exercise protections and anti-establishment
prohibitions of Article I, Section 16. The effect of this conflation is to view Vlaming’s resistance
to compelled speech as a form of “religious intolerance,” post at 87, that should be categorically
outside the protection of the conjoined free-exercise and anti-establishment provisions.
Implicit in this argument is a startling fallacy: Any government accommodation of a
religious person’s sincerely held views — particularly those that the government finds
unorthodox — somehow establishes a religious beachhead on the shores of the secular state.
That inference explains the first citation in the dissent on this topic, Everson v. Board of
Education of Ewing Township, 330 U.S. 1 (1947), a United States Supreme Court case
interpreting the Establishment Clause of the First Amendment to the United States Constitution.
It serves as a good platform on which to stage our disagreement. The issue in Everson, but not
before us, was whether the government had directly or indirectly supported a state religion in
violation of the Establishment Clause. See id. at 7-8. The issue before us, but not in Everson, is
whether the government’s compelled-speech policy infringes upon the religious liberties of a
Virginia citizen. And the governing law before us is not, as in Everson, the Establishment
evidence when in compliance with federal law, conviction of a felony or a crime of moral
turpitude, or other good and just cause”), -315(A) (providing that teachers “may be suspended
for good and just cause”).
32
Clause of the First Amendment. The governing law is the Free Exercise Clause of the
Constitution of Virginia and its later amendments. Mixing these provisions together skews their
separate histories and purposes.
The First Amendment was ratified in 1791, and for the first time, the United States
Constitution included an express right to “free exercise” of religion and a prohibition against a
state-sponsored “establishment of religion.” In contrast, the first sentence of Article I, Section
16 of the Constitution of Virginia initially appeared in 1776 and stated unequivocally that “all
men are equally entitled to the free exercise of religion, according to the dictates of conscience.”
This individual right to free exercise was not conjoined with a prohibition on a state
establishment of religion. The delegates to the 1776 convention voted down one of Madison’s
proposed amendments to the free-exercise provision precisely because it “would have
disestablished the Anglican Church in Virginia and probably also barred state support of
religious sects generally.” A.E. Dick Howard, “For the Common Benefit”: Constitutional
History in Virginia as a Casebook for the Modern Constitution-Maker, 54 Va. L. Rev. 816, 825
(1968). The Commonwealth had an established religion both before and after the 1776
Constitutional Convention, and it remained largely intact for another decade until the passage of
Jefferson’s Act for Religious Freedom in 1786. See 12 William Waller Hening, The Statutes at
Large 84-86 (1823); 1 Howard, Commentaries, supra, at 290-92; Robert Allen Rutland, The
Birth of the Bill of Rights 1776-1791, at 83-88 (1955). In Virginia, even if not elsewhere, “the
modern argument against religious exemptions, based on the establishment clause, is thus
historically unsupportable.” McConnell, Origins, supra note 4, at 1511-12.
This decade-long disconnect between Virginia’s protection of an individual’s “free
exercise of religion, according to the dictates of conscience” and the later-adopted express
33
prohibition against the establishment of a state religion untangles any effort to bind these unique
concepts into a single inseparable doctrine. The dissent’s contrary view relies heavily on an
amicus curiae brief filed on behalf of Professor Alan Taylor. See post at 88. A highly respected
faculty member of the Department of History at the University of Virginia, Taylor has studied
the “political process” accompanying the “uneasy compromises” made in the 18th-century
struggles over church and state. See Amicus Br. for Professor Alan Taylor in Support of
Appellees at 16 [hereinafter Taylor Amicus Br.].
Taylor’s amicus brief advocates for a conflation theory that treats an individual’s right to
free exercise as a subsidiary notion completely encapsulated by the overarching maxim that
government should not establish a state religion. Taylor’s brief does not mention Smith by name.
Even so, just like the dissent, the brief applies the federal Smith neutrality doctrine to the
Constitution of Virginia and concludes that it “does not support a broad right to religious
exemptions from civil laws that are neutral toward religion.” Taylor Amicus Br., supra, at 17.
As we earlier explained, we reject the federal Smith neutrality doctrine as inconsistent with the
text and historical context of Article I, Section 16 of the Constitution of Virginia.
That said, it is not our place to question whether Smith correctly understood the
economized text of the First Amendment. We ask only if Smith accurately marks off the
doctrinal boundaries of Article I, Section 16 of the Constitution of Virginia. It does not. The
text of Article I, Section 16 makes clear what Virginians mean by religious liberty:
 “[A]ll men are equally entitled to the free exercise of religion,
according to the dictates of conscience . . . .”
 “No man . . . shall be enforced, restrained, molested, or burthened
in his body or goods, nor shall otherwise suffer on account of his
religious opinions or belief . . . .”
34
 “[A]ll men shall be free to profess and by argument to maintain
their opinions in matters of religion . . . .”
 “[A]nd the same shall in nowise diminish, enlarge, or affect their
civil capacities.”
Given the clarity and resoluteness of these words, we hold that religious liberties in this
Commonwealth do not vanish simply because a purely secular law says so — no matter its
impartiality toward specific religions or its impassivity toward religion generally.
3.
We now come to the dissent’s claim that we have jettisoned “[c]ontrolling [p]recedent” in
Virginia that “vindicates” the dissent’s “historical analysis.” Post at 93. Justice Mann mentions
several cases that we have allegedly overruled: Perry v. Commonwealth, 44 Va. (3 Gratt.) 632(1846); Remington v. Commonwealth, 262 Va. 333 (2001); Crook v. Commonwealth, 147 Va.
593 (1927); Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922); and Rich v. Commonwealth,
198 Va. 445 (1956). We have not overruled any of them, and none of them supports the
adoption of the federal Smith standard as Virginia law.
Perry held that the trial court violated a witness’s religious liberty by allowing a
prosecutor to question the witness’s “belief in rewards and punishments at the hands of the
Deity.” 44 Va. at 637. “It is justly supposed,” Perry acknowledged, “that all who acknowledge
an overruling and just God, whether they believe in a future state or no, believe that they incur a
higher obligation, when they invoke Him to witness their vows, or the truth of what they declare,
than by a simple promise or asseveration.” Id. at 638. Despite recognizing the “great value” that
we place “on the obligation of an oath,” Perry held that the oath could not be lawfully honored
by questioning a witness’s religious faith. Id. at 638, 645. The reason why was clear: The
Constitution of Virginia “declares, that all men shall be free to profess, and by argument to
35
maintain their religious opinions” and that the government can place “neither burdens nor civil
incapacities” upon doing so. Id. at 641, 643. We do not understand how this holding supports
the dissent’s conclusion that “[f]or the first time, this Court held [in Perry] that, when a law is
neutral as to religion, Article I, Section 16 is not violated.” Post at 94 (emphasis added). That is
not what Perry held.
The dissent also asserts that we have overruled Remington. In that case, a trial court in a
capital-murder case granted a prosecutor’s request to strike potential jurors from the venire
because they “stated that they would not vote to impose the penalty of death” even if the accused
were convicted of capital murder. 262 Va. at 346, 349. The venire members, however, never
articulated any religious belief or opinion as a basis for their refusal to impose the death penalty.
With a three-sentence holding, Remington ended the analysis there:
Contrary to Remington’s assertions, the record clearly indicates
that [the jurors] were not removed from the venire because of their
religious beliefs. Rather, [they] stated that they would not vote to
impose the penalty of death. We hold that the circuit court did not
err in removing [them] from the jury panel because their responses
demonstrated that their personal objections to the death penalty
would have substantially impaired or prevented them from
performing their duties as jurors.
Id. at 349 (emphases added). There was no violation of the jurors’ religious liberty because the
factual “record clearly indicate[d]” that the jurors did not testify that their refusal to impose the
death penalty was due to any religious beliefs or opinions. Id. Once again, this case has nothing
to do with the debate presently before us. 22
22
The dissent restates the Remington holding in this way: “Because the record showed
that the incapacity did not derive from the religious beliefs as beliefs, but rather from the fact that
the beliefs manifested into an unwillingness to perform their duties as jurors, it did not violate the
Constitution.” Post at 95 (emphases added). On several levels as expounded upon above, we
reject this unique interpretation.
36
Finally, the dissent calls our attention to Rich, Crook, and Pirkey Brothers. All involve
Sunday-closing laws. Rich held that the Commonwealth had failed to prove that the defendant
had violated a Sunday-closing law. 198 Va. at 450-52 (holding that “selling food and groceries”
on a Sunday was covered by the statutory “necessity” exception). In passing, Rich cited Crook,
which held that playing “professional baseball” was not covered by the statutory “necessity”
exception, Crook, 147 Va. at 600.
Both Rich and Crook cite Judge Burks’s opinion in Pirkey Brothers, which affirmed a
factual finding that the “work done” (operating the historic Weyer’s Cave) was not within the
statutory “necessity” exception, Pirkey Bros., 134 Va. at 730-31. As was the case in Rich and
Crook, the “constitutional validity of the statute” was not “called in question” in Pirkey Brothers.
Id. at 717. The case was before the Court merely to answer “the simple question whether the
keeping open of these caverns and admission to them of visitors on Sunday constitute a violation
of the statute commonly known as the ‘Sunday Observance Law.’” Id. at 716.
Though the constitutional issue was not before the Court, much of Judge Burks’s opinion
in Pirkey Brothers addressed in broad terms how the role of religiously motivated laws (like
Sunday-closing laws) can still have a secular purpose that do not offend established principles
ensuring the proper separation of church and state. The dissent, however, reads this discussion to
be Virginia’s anticipatory rejection of anything like Sherbert’s “compelling state interest”
standard and implicit endorsement of Smith’s later view that no religious liberties can ever be the
basis for attacking a generally applicable and neutral secular law. We think this view reads far
too much into these cases. None of the litigants in Rich, Crook, or Pirkey Brothers asserted that
the challenged laws burdened their free exercise of religion. It is an exaggeration, at best, to
37
suggest that these cases necessarily establish settled precedent adopting either the Smith or
Sherbert standards of religious liberty.
The Sunday-closing cases are nonetheless perplexing because they raise two related but
distinct issues: Can a state force employers to give workers one day a week of rest even if the
day chosen has religious antecedents, and if so, can a state punish religious persons (by denying
them unemployment benefits) if their religion celebrates a day of rest on some other day? We
agree with the answer in Pirkey Brothers to the first question and the answer in Sherbert to the
second question. What we do not agree with, however, is the assertion that the second question
is irrelevant because the government can eliminate religious objections altogether simply by
enacting a generally applicable, neutral statute.
4.
We must also address the dissent’s complaint that we spend too much time detailing the
history of the religious-liberty provisions, particularly the free-exercise provision of the 1776
Constitution of Virginia, because the real focus should be on the 1971 Constitution. As the
dissent reads our history, Virginians in 1971 adopted a new constitution that fully embraced the
federal Smith standard for religious liberty and thereby announced their “utter rejection” of any
other view being the “original understanding” of Article I, Section 16. Post at 93. Here again,
we see things differently.
The crucial first sentence in Article I, Section 16 has been in the Constitution of Virginia
since 1776. It remains unaltered to this very day. The next two sentences “drew heavily on
Thomas Jefferson’s 1786 Act for Religious Freedom and first appeared in the 1830 Constitution
in the Legislature Article, where they remained until they were moved to the bill of rights in the
1971 Constitutional revision.” Dinan, supra, at 83. The 1971 revision changed not a word of
38
these sentences, and the revisors expressly disavowed any intention to do so. As Professor
Howard, the Executive Director of the Commission, has explained, “parts of [the Constitution of
Virginia] have been simply carried forward,” and “[i]n particular, George Mason’s famous
Declaration of Rights of 1776 appears almost word for word today as Article I of the present
constitution.” A.E. Dick Howard & William Antholis, The Virginia Constitution of 1971: An
Interview with A.E. Dick Howard, 129 Va. Mag. Hist. & Biography 347, 348 (2021) [hereinafter
Howard & Antholis, Interview]. The revisers “understood George Mason, Thomas Jefferson,
[and] James Madison” and were “conversant with the Founders’ ideas and drew on their very
language.” Id. at 358.
The Commission Chairman, Albertis Harrison, Jr., was a former Governor and Virginia
Supreme Court Justice. He also made the continuity point clear at the time. Just before releasing
the Commission’s report, Justice Harrison emphasized that “little change has been made in the
Virginia Bill of Rights since 1776 when Virginia undertook to draft a Declaration of Rights” and
that he did not “think that anybody in our generation, and certainly none of us who constituted
this Commission, felt that we were so bold as to feel that we could do a better job than those who
had drafted the Bill of Rights.” Audiotape: Remarks on Release of Commission on
Constitutional Revision Report at 14:03 to 14:27 (Jan. 8, 1969) [hereinafter Remarks on Release]
(on file with the Library of Virginia). “With reference to religious liberty,” Justice Harrison
continued, the 1971 Constitution contained the “classic . . . statements of religious liberty, one by
Thomas Jefferson and the other by James Madison.” Id. at 15:50 to 16:05.
The Commission’s written report presented to the Governor and the General Assembly
confirmed that “the Commission ha[d] made no effort to ‘modernize’ the language of the Bill of
Rights, believing it would be unlikely to improve on the well-turned phrases of the original
39
framers.” The Constitution of Virginia: Report of the Commission on Constitutional Revision 85
(1969). The report noted that “many of the sections” in the Bill of Rights “have not changed
since 1776 — a testimonial to the insight which the original Framers had into the basic and
recurring questions of political philosophy” and stating that the Commission “approached the
Bill of Rights with special care” by recommending “few changes in the Bill of Rights as it now
appears.” Id.; see also id. at 100 (noting that “[t]he first sentence of proposed section 16,”
originally “inserted in the Bill of Rights in 1776,” was “preserved without change” and that the
“remainder of the proposed section,” which originally derived from Jefferson’s Act, “is taken,
again with no change whatever, from present section 58”).
These observations track Justice Harrison’s assurance that, despite substantial revisions
to some provisions, “We were not commissioned by the Governor, and the General Assembly
did not initiate this Commission with the idea of giving Virginia a new constitution, and we have
not done that.” Remarks on Release, supra, at 11:52 to 12:04. The dissent brushes aside this
statement as “incorrect” and worthy of “no judicial weight.” See post at 82 note 2. The dissent’s
assertion assumes that Justice Harrison did not know that the 1971 Constitution was “an
amendment in the form of a substitute” and, in that technical sense, a “new” constitution under
principles of “parliamentary practice.” Tarter, supra, at 281. 23 We think that supposition highly
23
This technical point is accurate but also somewhat misleading. The Act of Assembly
approving the 1971 Constitution described it as the “revised Constitution,” and the ballot
questions submitted to the voters for ratification “of the proposed general amendment of the
Constitution of Virginia” asked whether the Constitution of Virginia should “be generally
amended and revised.” 1970 Acts ch. 763, at 1595, 1623-24, 1626.
No one at the time thought the Commission on Constitutional Revision was attempting to
scrap the “old” constitution and start from scratch on a wholly “new” one. The use of this
parliamentary maneuver was only meant to achieve the political goals of avoiding an
“uncontrollable convention” and instead giving “full control” over the revisions to the “majority
[party] in both houses of the assembly.” Tarter, supra, at 278. For these reasons, the old/new
40
unlikely, but even so, it matters little to us. Justice Harrison was not contesting this
parliamentary practice or debating semantic nuances. He was only pointing out the obvious:
The religious-liberty clauses were wholly untouched by the 1971 Constitution, and no effort was
made to undo the meaning attributed to them by the original Framers — which is our point as
well.
Let’s suppose we are wrong, and Virginians in 1971 dismissed as anachronistic the views
of George Mason, Thomas Jefferson, and James Madison and instead looked solely to the
contemporaneous understanding of religious liberty prevailing in 1971. Would that support the
dissent’s view? Not at all. In 1971, Justice Brennan’s 1963 opinion in Sherbert represented the
near-universal understanding of “free exercise” of religious liberties. Justice Scalia’s 1990
opinion in Smith came nearly two decades later. And it did so over the objection of Justices
Brennan, Marshall, Blackmun, and O’Connor who pointed out that Smith “dramatically departs
from well-settled First Amendment jurisprudence” and “is incompatible with our Nation’s
fundamental commitment to individual religious liberty.” Smith, 494 U.S. at 891 (O’Connor, J.,
concurring in the judgment).
The dissent never expressly adopts Smith by name, but as mentioned above, Part I of the
dissent unequivocally endorses the federal Smith neutrality doctrine. 24 Because the School
Board’s policies are neutral and generally applicable, the dissent argues, “it does not matter
whether [Vlaming] has a religious or secular objection to them.” Post at 99 (emphasis added). 25
distinction is an unhelpful intellectual exercise. See, e.g., Howard & Antholis, Interview, supra,
at 376 (“In Virginia, the proposed constitution, in technical legal terms, was an amendment to the
previous constitution. It was in fact a wholesale replacement, a new constitution, but technically
it was an amendment to the 1902 constitution.”).
24
See supra at 13.
25
See supra note 12.
41
Like Justices Brennan, Marshall, Blackmun, and O’Connor, we think it does matter and that the
does-not-matter proposition entered American constitutional jurisprudence for the first time in
1990 when Smith reformulated the federal free-exercise doctrine. That mistaken view of
religious liberty was not the common understanding of Virginians nearly two decades earlier in
1971. Nor was it the view of the original Framers two centuries ago in 1776. And it is not our
understanding today.
We take seriously the dissent’s accusation that our efforts to unpack the early legal
history of the Constitution of Virginia is little more than “academic speculation.” Post at 82.
We make no pretense of having omniscient certitude on this or any other legal issue. We are
nonetheless duty bound to interpret and apply legal texts, such as the religious-liberty clauses of
the Constitution of Virginia, to concrete cases, such as the present dispute. We cannot do so in
this case, however, without recognizing that the legal concepts nested in the religious-liberty
clauses have historical origins. 26 The Founders understood the essentiality of this interpretative
task. Shortly after participating in the Federal Constitutional Convention, James Madison made
a profound observation about legal texts:
26
See Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon
the Legislative Power of the States of the American Union 59 (1868) (“But it must not be
forgotten, in construing our constitutions, that in many particulars they are but the legitimate
successors of the great charters of English liberty, whose provisions declaratory of the rights of
the subject have acquired a well-understood meaning, which the people must be supposed to
have had in view in adopting them. We cannot understand these provisions unless we
understand their history . . . .”); see id. at 54 (“The meaning of the constitution is fixed when it is
adopted, and it is not different at any subsequent time when a court has occasion to pass upon
it.”); A Discourse upon the Exposition & Understanding of Statutes with Sir Thomas Egerton’s
Additions 141 (Samuel E. Thorne ed., 1942) (arguing that statutes must be read in their historical
context “for without knowledge of the ancient law they shall neither know the statute nor
expound it well, but shall, as it were, follow their noses and grope at it in the dark” (altering
archaic spelling in title and text)). See generally Scalia & Garner, supra note 13, at 78-92
(outlining the “Fixed-Meaning Canon,” which states that “[w]ords must be given the meaning
they had when the text was adopted”).
42
All new laws, though penned with the greatest technical skill and
passed on the fullest and most mature deliberation, are considered
as more or less obscure and equivocal . . . . The use of words is to
express ideas. . . . But no language is so copious as to supply
words and phrases for every complex idea, or so correct as not to
include many equivocally denoting different ideas.
The Federalist No. 37, at 229 (James Madison) (Clinton Rossiter ed., 1961). Madison’s antidote
for such indeterminacy, however, was not to celebrate the elasticity of words using
instrumentalist and policy-oriented interpretative models. Instead, he believed that interpreters
should consult the popular meaning of legal words and phrases within the historical context in
which they arose. To Madison, this was not just a question of linguistics but also of democratic
legitimacy. 27 Not mincing his own words, he declared:
I entirely concur in the propriety of resorting to the sense in which
the Constitution was accepted and ratified by the nation. In that
sense alone it is the legitimate Constitution. . . . If the meaning of
the text be sought in the changeable meaning of the words
composing it, it is evident that the shape and attributes of the
government must partake of the changes to which the words and
phrases of all living languages are constantly subject. What a
metamorphosis would be produced in the code of law if all its
ancient phraseology were to be taken in its modern sense!
Letter from James Madison to Henry Lee (June 25, 1824), in 3 Letters and Other Writings of
James Madison 441, 442 (1867) (emphasis added). Reflecting on this view a couple of years
27
See Memorandum by Nicholas P. Trist of Conversation with James Madison (Sept. 27,
1834), in 3 The Records of the Federal Convention of 1787, at 533, 534 (Max Farrand ed., 1911)
(recording Madison’s desire that the government “conform to the Constitution as understood by
the Convention that produced and recommended it, and particularly by the State conventions that
adopted it”); Letter from James Madison to Thomas Ritchie (Sept. 15, 1821), in 3 Letters and
Other Writings of James Madison 228, 228 (1867) (stating that “the legitimate meaning” of the
Constitution “must be derived from the text itself . . . in the sense attached to it by the people in
the respective State Conventions, where it received all the authority which it possesses”); 5
Annals of Cong. 776 (1796) (“As the [Constitution] came from [the drafters] it was nothing more
than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by
the voice of the people, speaking through the several State Conventions.”).
43
later, Madison restated his point with a rhetorical question: “In the exposition of laws, and even
of Constitutions how many important errors may be produced by mere innovations in the use of
words and phrases, if not controulable by a recurrence to the original and authentic meaning
attached to them.” 28
Thomas Jefferson, Madison’s mentor, agreed: “On every question of construction,”
Jefferson said, “[let us] carry ourselves back to the time when the Constitution was adopted,
recollect the spirit manifested in the debates, and instead of trying what meaning may be
squeezed out of the text, or invented against it, conform to the probable one in which it was
passed.” Letter from Thomas Jefferson to Judge William Johnson (June 12, 1823), in 15 The
Writings of Thomas Jefferson 439, 449 (Andrew A. Lipscomb & Albert Ellery Bergh eds.,
memorial ed. 1904). Such views date back to the very origins of the Anglo-American common-
law methods of textual interpretation. See generally 1 William Blackstone, Commentaries *59.
To answer the dissent’s charge of “academic speculation,” post at 82, we will concede the
incontestable: The use of legal history to understand the original denotation and connotation of
words used in legal texts may not deliver the exactitude of a mathematical equation. And it is a
difficult task when interpreting low-resolution legal texts written in centuries past. But it is far
preferrable than its more indeterminate alternative — modern judges engaging in an eisegesis,
declaring what the text ought to mean, rather than an exegesis, determining what the historical
text actually meant when the words became law.
28
See Letter from James Madison to Sherman Converse (Mar. 10, 1826), in 3 Letters and
Other Writings of James Madison 518, 519 (1865).
44
C.
Vlaming also contends that the allegations of his complaint are sufficient to set forth a
statutory free-exercise claim under the Virginia Religious Freedom Restoration Act (“VRFRA”),
Code § 57-2.02, and that the circuit court erred in dismissing this claim on demurrer. We agree.
1.
First enacted in 2007, the General Assembly patterned the VRFRA to parallel, in varying
degrees, similar statutes enacted by the United States Congress and numerous state legislative
assemblies. The core provision of the VRFRA announces a general rule and a narrow exception.
The general rule states that “[n]o government entity shall substantially burden a person’s free
exercise of religion even if the burden results from a rule of general applicability.” Code § 57-
2.02(B). The narrow exception adds that a violation of the general rule will only be excused if
the government “demonstrates that application of the burden to the person is (i) essential to
further a compelling governmental interest and (ii) the least restrictive means of furthering that
compelling governmental interest.” Id.
The VRFRA is quite specific about who must prove what. The claimant has the initial
obligation to show that the government “substantially burden[ed]” the “free exercise of religion,”
id., which includes any act that “inhibit[ed] or curtail[ed]” the “religiously motivated practice,”
Code § 57-2.02(A). If the claimant makes that prima facie showing, the government then has
“the burdens of going forward with the evidence and of persuasion under the standard of clear
and convincing evidence,” id., to show that the specific “application of the [government’s]
burden to the person is (i) essential to further a compelling governmental interest and (ii) the
least restrictive means of furthering that compelling governmental interest,” Code § 57-2.02(B).
45
The VRFRA differs from its federal counterpart, the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4, in some respects. Unlike the VRFRA, the federal
RFRA does not require the government to prove that its contested actions be “essential” to the
furtherance of “a compelling governmental interest.” Compare Code § 57-2.02(A)-(B), with 42
U.S.C. § 2000bb-1. 29 Nor does the federal RFRA require the government to prove the
essentiality of its compelling interest by “clear and convincing evidence,” see 42 U.S.C.
§ 2000bb-1, a heightened standard of evidentiary proof. 30
In one important respect, however, the VRFRA closely parallels the federal RFRA.
“‘The least-restrictive-means standard is exceptionally demanding,’ and it requires the
government to ‘show that it lacks other means of achieving its desired goal without imposing a
substantial burden on the exercise of religion by the objecting party.’” Holt v. Hobbs, 574 U.S.
352, 364-65 (2015) (alterations omitted) (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
29The VRFRA’s requirement that the means be “essential,” Code § 57-2.02(B), elevates
this already demanding standard even further. See, e.g., Marianist Province of U.S. v. City of
Kirkwood, 944 F.3d 996, 1003-04 (8th Cir. 2019) (describing similar language in Missouri’s
RFRA as a “heightened” version of “the usual strict-scrutiny standard”); Roles v. Townsend, 64
P.3d 338, 340 (Idaho Ct. App. 2003) (analyzing whether Idaho’s tobacco-free prison policy was
not only in furtherance of a compelling interest but also, pursuant to Idaho’s RFRA, “essential”
to its interest in “maintain[ing] internal security and control[ling] the black market for tobacco”).
30
As an evidentiary standard of proof, “‘clear and convincing evidence’ has been defined
as ‘that measure or degree of proof which will produce in the mind of the trier of facts a firm
belief or conviction as to the allegations sought to be established.’” Judicial Inquiry & Rev.
Comm’n v. Pomrenke, 294 Va. 401, 409 (2017) (citation omitted). The standard “is considerably
higher than a ‘mere preponderance’ and has been fairly characterized as a ‘heavy burden.’” In re
Brown, 295 Va. 202, 227 (2018) (citations omitted); see also 2 Kenneth S. Broun et al.,
McCormick on Evidence § 340, at 712 (Robert P. Mosteller ed., 8th ed. 2022) (describing this
standard as “a more exacting measure of persuasion”). Thus, the standard is not satisfied when
the evidence leaves “competing inferences ‘equally probable.’” Edmonds v. Edmonds, 290 Va.
10, 22 (2015) (citation omitted). Stated differently, “the persuasive quality of clear-and-
convincing evidence must establish that ‘the thing to be proved is highly probable or reasonably
certain.’” In re Brown, 295 Va. at 227 (quoting Black’s Law Dictionary 674 (10th ed. 2014)).
46
682, 728 (2014)). This highly “focused” evidentiary analysis “requires the [g]overnment to
demonstrate that the compelling interest test is satisfied through application of the challenged
law ‘to the person’ — the particular claimant whose sincere exercise of religion is being
substantially burdened.” Burwell, 573 U.S. at 726 (quoting Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006)).
In this case, the core allegation in Vlaming’s complaint is that he was fired as a French
teacher for referring to a biologically female student only by the student’s preferred name instead
of by both the preferred name and government-mandated masculine pronouns. Vlaming alleges
that he could not comply with this compelled-speech mandate because it coerced him into
violating his conscience by endorsing an ideology at odds with his sincerely held religious
beliefs. This allegation, when placed in the context of all other supporting facts and supporting
inferences in Vlaming’s 39-page complaint, asserts a prima facie claim of a statutory violation of
Code § 57-2.02(B).
2.
The School Board argues that even if Vlaming’s allegations state a prima facie claim, the
circuit court was nonetheless correct in dismissing the claim because the VRFRA categorically
exempts some government actions from its reach. In support of this argument, the School Board
relies upon Code § 57-2.02(E), which states that “[n]othing in this section shall prevent any
governmental institution or facility from maintaining health, safety, security or discipline.” The
School Board argued in the circuit court that this provision, as a matter of law, bars Vlaming’s
VRFRA claim. See J.A. at 111-12. Although the circuit court did not directly address this issue,
the School Board raises it on appeal as a free-standing legal basis for affirming the circuit court’s
dismissal of Vlaming’s complaint. See Appellees’ Br. at 42-44. We reject this argument.
47
Whatever the meaning of Code § 57-2.02(E), one interpretative baseline is clear: If
broadly construed, the exemption would apply to nearly all government actions. Most, if not all,
laws, policies, or actions could plausibly be said to promote “health, safety, security, or
discipline” in some manner. This is necessarily so because “the police power is essentially the
inherent power of sovereign state governments ‘to enact laws “to promote the health, peace,
morals, education, and good order of the people.”’” Hooked Grp., LLC v. City of Chesapeake,
298 Va. 663, 668 (2020) (alteration and citation omitted); see also Bacon v. Walker, 204 U.S.
311, 317 (1907) (noting that the police power includes “regulations designed to promote the
public health, the public morals, or the public safety”). Such a construction of Code § 57-
2.02(E) would eviscerate the VRFRA. We cannot adopt an interpretation of the VRFRA that
“would render it a dead letter and defeat its essential purpose.” Graham v. Community Mgmt.
Corp., 294 Va. 222, 230 (2017).
Aware of this interpretative risk, the School Board argues that no matter how broadly or
narrowly interpreted, subsection E bars Vlaming’s prima facie claim as a matter of law. See
Appellees’ Br. at 42. 31 We need not demark with specificity the conceptual boundaries of Code
31
When a statute “carves an exception” out of its “general scope,” we must determine
whether the exception constitutes a “negative element” of the claimant’s “prima facie case” or an
affirmative defense upon which the defendant has the burden of production and persuasion.
Myers v. Commonwealth, 299 Va. 671, 678-79 (2021) (applying this principle to Code § 18.2-
308); see also New Dimensions, Inc. v. Tarquini, 286 Va. 28, 33-34 (2013) (noting that under the
Equal Pay Act, plaintiffs must “make out a prima facie case” by showing a pay differential with
an equally skilled “higher-paid male employee” but that “the burden then shifts to the employer
to prove . . . that the pay differential is justified by . . . one of the four statutory exceptions”);
Vaughan v. Mayo Milling Co., 127 Va. 148, 156 (1920) (applying the interpretative canon that
“when the exception or provision is in a subsequent substantive clause, the case contemplated in
the enacting or general clause may be fully stated without negativing the exception or proviso, as
a prima facie case is stated; and it is for the party who relies upon the matter of excuse or defense
furnished by the statute . . . to bring it forward in his defense”); cf. 3C Shambie Singer,
Sutherland’s Statues and Statutory Construction § 76:3, at 323 (8th ed. 2018) (noting that in
construing civil-rights legislation, “those who claim the benefit of an exception have the burden
48
§ 57-2.02(E) to answer this assertion. According to the complaint, the School Board fired
Vlaming because he had referred to a student only by the student’s preferred name, avoided the
use of any third-person pronouns, and refused to use the government-mandated pronouns.
Whatever the outer reaches of Code § 57-2.02(E), we find little difficulty in concluding that the
School Board’s termination of Vlaming’s employment (assuming, as we must, that his
allegations are true) does not qualify under subsection E as a wholesale exemption from the
VRFRA’s reach. The literal text, historical context, and essential purpose of the VRFRA cannot
so easily be set aside. 32
D.
Vlaming also challenges the circuit court’s dismissal of his free-speech claims asserted
under Article 1, Section 12 of the Constitution of Virginia. Pruned down to its trunk line,
Vlaming’s complaint does not allege that the School Board fired him for saying something he
should not have said — but for not saying something that his religion and his conscience forbade
him from saying. While no liberty is absolute, Vlaming contends that the right to freedom of
expression is at its apogee in compelled-speech cases. Fully embracing this premise, we find
that it applies to this case and that the circuit court erroneously dismissed Vlaming’s free-speech
claims.
of proving they come within the limited class for whose benefit the exception was established”).
Given the carefully prescribed burdens of proof in subsections A and B of Code § 57-2.02, we
find it implausible that the General Assembly intended subsection E to constitute a negative
element of the claimant’s prima facie case.
32
The dissent concludes that our constitutional analysis “in one fell swoop” renders the
VRFRA “suddenly irrelevant.” Post at 106. We question what is meant by this. Suffice it to
say, the presence or absence of statutory rights does not determine the existence and scope of
constitutional rights. In a democratic republic, “[i]t is emphatically the province and duty of the
judicial department to say what the law is.” Howell, 292 Va. at 350 (quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
49
1.
The First Amendment of the United States Constitution provides with characteristic
brevity that “Congress shall make no law . . . abridging the freedom of speech.” Article I,
Section 12 of the Constitution of Virginia, however, provides an amplified restatement of the
right to free speech:
That the freedoms of speech and of the press are among the great
bulwarks of liberty, and can never be restrained except by despotic
governments; that any citizen may freely speak, write, and publish
his sentiments on all subjects, being responsible for the abuse of
that right; that the General Assembly shall not pass any law
abridging the freedom of speech . . . .
While the First Amendment’s prohibition against government restriction speaks solely in the
negative — “Congress shall make no law” — the Virginia clause speaks in both negative and
affirmative terms — “any citizen may freely speak . . . on all subjects,” and “the General
Assembly shall not pass any law abridging the freedom of speech.” Compare U.S. Const.
amend. I, with Va. Const. art. I, § 12.
As earlier observed, the architecture of judicial power implicit in American federalism
gives the United States Supreme Court the last word on the meaning of the First Amendment and
gives the Supreme Court of Virginia the last word on the meaning of the Constitution of
Virginia. When we interpret the protection given to free speech by the Constitution of Virginia
as being “coextensive with the free speech provisions of the federal First Amendment,” Elliott v.
Commonwealth, 267 Va. 464, 473-74 (2004), we are not outsourcing to the federal courts our
decision-making power over the Constitution of Virginia. See Richmond Newspapers, Inc. v.
Commonwealth, 222 Va. 574, 588 (1981). We are merely acknowledging that the then-existing
interpretation of the First Amendment by the United States Supreme Court matches our own
understanding of Article I, Section 12 of the Constitution of Virginia. The Virginia protection of
50
free speech coexists (and thus is coextensive) with the federal protection because, as we have
understood both in specific cases, the former appeared to be at least as strong as the latter.
To be sure, in some cases, we might find that the Virginia constitutional right of free
speech is stronger than the prevailing interpretation of the First Amendment by the United States
Supreme Court. In the present case, however, we need not speculate on such hypotheticals. We
believe that the extant principles of free speech presently articulated by the United States
Supreme Court in its interpretation of the First Amendment equally describe the baseline
protection of the right of free expression secured by the Constitution of Virginia. That said, even
if our understanding of existing federal precedent is incorrect, we would nonetheless hold fast to
our reasoning in the present case as the proper interpretation of the right to free speech protected
by Article I, Section 12 of the Constitution of Virginia.
2.
In the vocabulary of First Amendment jurisprudence, Vlaming’s principal theory of
recovery asserts a “compelled speech” claim. This type of claim challenges an attempt by the
government to “compel an individual to create speech [he] does not believe” and to “‘utter what
is not in [his] mind’ about a question of political and religious significance.” 303 Creative LLC
v. Elenis, 600 U.S. 570, 578-79, 596 (2023) (citations omitted).
As the complaint frames this factual scenario, the School Board fired Vlaming not
because of what he said but because of what he refused to say. He used Doe’s preferred name
but avoided the use of any third-person pronouns when referring to Doe and “rarely, if ever, used
third person pronouns to refer to any students during class or while the student being referred to
was present.” J.A. at 7. The School Board terminated Vlaming’s employment, the complaint
51
alleges, because he refused to use the government-mandated pronouns in addition to Doe’s
preferred name.
(a)
The constitutional right to free speech “includes both the right to speak freely and the
right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (citing West
Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 633-34 (1943)). “If there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein.” Barnette, 319 U.S. at 642. “A system which secures the right
to proselytize religious, political, and ideological causes must also guarantee the concomitant
right to decline to foster such concepts.” Wooley, 430 U.S. at 714.
It is a “cardinal constitutional command” that government coercion, even when indirect,
cannot constitutionally compel individuals to “mouth support” for religious, political, or
ideological views that they do not believe. Janus v. American Fed’n of State, Cnty., & Mun.
Emps., Council 31, 138 S. Ct. 2448, 2463 (2018). “[I]n most contexts, any such effort would be
universally condemned” because individuals cannot be constitutionally “coerced into betraying
their convictions.” Id. at 2463-64. “Forcing free and independent individuals to endorse ideas
they find objectionable is always demeaning, and for this reason, one of our landmark free
speech cases said that a law commanding ‘involuntary affirmation’ of objected-to beliefs would
require ‘even more immediate and urgent grounds’ than a law demanding silence.” Id. at 2464(citation omitted).
As the United States Supreme Court recently reaffirmed, the freedom to speak or not
speak generally endures “regardless of whether the government considers [the] speech sensible
52
and well intentioned or deeply ‘misguided’ and likely to cause ‘anguish’ or ‘incalculable grief.’”
303 Creative LLC, 600 U.S. at 586 (citation omitted). “Nor does it matter whether the
government seeks to compel a person to speak its message when he would prefer to remain silent
or to force an individual to include other ideas with his own speech that he would prefer not to
include.” Id. Some find these axioms of liberty troubling because they trust “state governments
to coerce only ‘enlightened’ speech. But if that is the calculation, it is a dangerous one indeed.”
Id. at 2320. “[I]f liberty means anything at all, it means the right to tell people what they do not
want to hear.” Id. (citation omitted). All the more, it means the right to disagree without
speaking at all.
The constitutional prohibition on government punishing protected speech relies heavily
on the idea that “the best test of truth is the power of the thought to get itself accepted in the
competition of the market” of free thinking. Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting). “That at any rate is the theory of our Constitution.” Id. The
constitutional prohibition on government compelling its citizens to “mouth support” for
ideological beliefs, Janus, 138 S. Ct. at 2463, takes that idea one step further. Forcing creedal
conformity is more pernicious than silencing dissent because the former seeks to monopolize the
marketplace of ideas by making everyone in the market say the same thing about the same idea.
See id. at 2464 (“When speech is compelled, . . . additional damage is done.”); Turner Broad.
Sys. v. FCC, 512 U.S. 622, 641 (1994) (observing that government efforts to “suppress
unpopular ideas or information or manipulate the public debate through coercion rather than
persuasion . . . ‘rais[e] the specter that the Government may effectively drive certain ideas or
viewpoints from the marketplace’” (citation omitted)).
53
Because of this distinction, the government has a higher burden to justify compelled
speech than when it seeks to punish or to censor protected speech. “When a public employer
does not simply restrict potentially disruptive speech but commands that its employees mouth a
message on its own behalf, the calculus is very different.” Janus, 138 S. Ct. at 2473. Under this
stricter standard, “a law commanding ‘involuntary affirmation’ of objected-to beliefs would
require ‘even more immediate and urgent grounds’ than a law demanding silence.’” Id. at 2464(quoting Barnette, 319 U.S. at 633); see also Riley v. National Fed’n of the Blind of N.C., 487
U.S. 781, 795-97 (1988) (rejecting a “deferential test” for compelled-speech claims). In short,
courts apply “rigorous scrutiny” to any effort by government to “compel speakers to utter or
distribute speech bearing a particular message.” Turner Broad. Sys., Inc., 512 U.S. at 642.
(b)
The need to reinforce these principles “is nowhere more vital than in the community of
American schools.” Shelton v. Tucker, 364 U.S. 479, 487 (1960). Teachers and students do not
“shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Students in a public-
school classroom, for example, cannot be compelled to salute the flag or recite the pledge of
allegiance. See Barnette, 319 U.S. at 642. Both the nonverbal flag salute and the verbal pledge
of allegiance declare a speaker’s ideological belief about our national self-identity — a belief
sacred to some but not to others. Requiring a nonbeliever to salute the flag or to recite the pledge
would constitute a government “compulsion” on the speaker to “declare a belief.” Id. at 631.
Constitutional free-speech protections are not limited to students or to university
professors. Secondary-school teachers unquestionably enjoy free-speech protections. See, e.g.,
Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 413 (1979); City of Madison, Joint Sch.
54
Dist. No. 8 v. Wisconsin Emp. Rels. Comm’n, 429 U.S. 167, 176-77 (1976); Pickering v. Board
of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968); Shelton, 364 U.S. at 486-87.
The right to be free from compelled speech is among these protections. See, e.g., Russo v.
Central Sch. Dist., 469 F.2d 623, 631-33 (2d Cir. 1972); State v. Lundquist, 278 A.2d 263, 274
(Md. 1971); Opinions of the Justices to the Governor, 363 N.E.2d 251, 254 (Mass. 1977). That
does not mean, of course, that secondary-school teachers cannot be expected (and even
compelled as a condition of employment) to teach the curricular materials for the classes that
they are hired to teach. “The core of the teacher’s job is to speak in the classroom on the
subjects she is expected to teach.” Brown v. Chicago Bd. of Educ., 824 F.3d 713, 715 (7th Cir.
2016) (emphasis added). Math teachers must teach math, science teachers must teach science,
history teachers must teach history, and so on. But none of them can be compelled into the
service of controversial “religious, political, [or] ideological causes,” Wooley, 430 U.S. at 714.
In this case, Vlaming alleges that the School Board fired him as a French teacher for
refusing to use masculine pronouns when referring to Doe, a biologically female student.
Vlaming did not insist on referring to Doe with feminine pronouns. Instead, he avoided the use
of third-person pronouns altogether either when referring to Doe or to any other students in
French class, and he instead used Doe’s preferred name. The coerced masculine pronouns had
nothing to do with any curricular topic related to the French language. This coercion was
instead, Vlaming argues, simply a compelled-speech mandate seeking to use him as “an
instrument for fostering public adherence to an ideological point of view he finds unacceptable,”
id. at 715, and to compel him to “speak in ways that align with [the government’s] views” in a
manner that defies his “conscience about a matter of major significance,” 303 Creative LLC, 600
U.S. at 602-03. Notions of “the need for orderly school administration,” Pickering, 391 U.S. at
55
569, may play a role in balancing the government’s right to punish or to censor speech — but
these concerns play no role as a counterbalance to a teacher’s right not to be compelled to give a
verbal salute to an ideological view that violates his conscience and has nothing to do with the
specific curricular topic being taught.
The concept of “gender identity” is among many “controversial subjects” that are rightly
perceived as “sensitive political topics.” Janus, 138 S. Ct. at 2476. Speech on such matters
occupies the “‘highest rung of the hierarchy of First Amendment values’ and merits ‘special
protection.’” Id. (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)). The ideological nature
of gender-identity-based pronouns involves a palpable “struggle over the social control of
language in a crucial debate about the nature and foundation, or indeed real existence, of the
sexes.” Meriwether v. Hartop, 992 F.3d 492, 508 (6th Cir. 2021) (citation omitted). Compelling
an educator’s “speech or silence” on such a divisive issue would cast “a pall of orthodoxy over
the classroom” on a topic that has “produced a passionate political and social debate.” Id. at 503,
508. Whether at the highest or lowest level, the government has no inherent power to declare by
ipse dixit that controversial ideas are now uncontroversial. After all, the “freedom to differ is not
limited to things that do not matter much. That would be a mere shadow of freedom. The test of
its substance is the right to differ as to things that touch the heart of the existing order.”
Barnette, 319 U.S. at 642.
3.
Our colleagues in dissent take a different view, asserting that our “distinction between
free speech and compelled speech is a siren song; it is constitutionally insignificant.” Post at
132. This insignificance, the dissenters argue, stems from the “[s]imply stated” axiom that “the
School Board is the speaker and Vlaming its spokesperson; thus, the School may regulate its own
56
messages to that effect.” Post at 129. Under this logic, Vlaming has no right to free speech
because he is not the speaker. The School Board is the speaker and Vlaming its mouthpiece.
Everything he says is officially compelled, and everything he cannot say is officially censored.
This is the thesis underlying the dissenters’ belief that Vlaming can be compelled to convey the
school’s “specific message” on “preferred pronouns” and “be a part of a larger initiative” while
trying to teach the French language to high schoolers. Post at 122, 128.
This approach closely tracks the School Board’s illiberal view of its teachers’ right to free
speech. The School Board argues that it could constitutionally compel Vlaming to use the
government-mandated pronouns, in addition to using students’ preferred names, because doing
so was among the “official duties” that he owes to the School Board. See Appellees’ Br. at 48-
52. In its broadest sense, however, this argument is circular. If it were true, the government
could define away a teacher’s right against compelled speech by unilaterally deeming such
speech a compulsory official duty. The arguments on brief by the School Board seem to suggest
that this is what it attempted to do:
• “Vlaming’s speech in the hallways and classrooms of West
Point High School was pursuant to his official duties as a
public school teacher and therefore is not protected speech.
Put more simply, a public school board may dictate the in-
classroom speech of a public high school teacher without
running afoul of the Virginia Constitution’s free speech
provisions.” Appellees’ Br. at 9.
• “Vlaming’s on-the-job speech in dereliction of his basic
teaching responsibilities thus finds no protection under the
Virginia Constitution.” Id. at 47.
• “Public school teachers like Vlaming are only in a position to
address students like Doe because they are hired to do so by
government employers. . . . Vlaming’s mode of addressing his
students constitutes ‘speech [he] was expected to deliver in the
course of carrying out his job’ . . . . The School Board was
57
thus entitled to regulate it without implicating the Virginia
Constitution.” Id. at 48-49 (citation omitted).
At face value, the School Board’s assertions suggest that a secondary-school teacher’s
free-speech rights end at the schoolhouse gate. As long as the teacher is in the schoolhouse halls,
classrooms, gymnasium, auditorium, or teachers’ lounge, the School Board can require the
teacher to say something, or nothing, on any topic virtually without limit. Under this sweeping
definition, all aspects of a teacher’s “on-the-job speech,” id. at 47, are categorically off the list of
protected constitutional rights. In our opinion, this definition of the “official duties” limitation
on free speech sweeps too broadly.
The leading case on the “official duties” limitation, Garcetti v. Ceballos, involved a
deputy prosecutor who wrote an internal legal memorandum asserting that a search warrant in a
pending criminal case had been improperly obtained. 547 U.S. 410, 414 (2006). At the later
suppression hearing, the deputy prosecutor took the witness stand on behalf of the accused and
testified against the enforceability of the search warrant. See id. at 414-15. After the trial court
rejected the defendant’s motion to suppress, the deputy prosecutor’s supervisors removed him
from the prosecution team and later demoted him. 33 See id. at 415.
The deputy prosecutor sued the district attorney’s office claiming that his supervisors had
retaliated against him in violation of the First Amendment. The United States Supreme Court
rejected the claim. Focusing its analysis on the deputy prosecutor’s internal legal memo, the
Court concluded that the act of writing the memo was one of the deputy prosecutor’s official
duties in the district attorney’s office. See id. at 421. The supervising prosecutors had every
33
The lower court opinions provide a full description of the facts of the case. See
Ceballos v. Garcetti, 361 F.3d 1168, 1170-72 (9th Cir. 2004); Ceballos v. Garcetti, No.
CV0011106AHMAJWX, 2002 WL 34098285, at *1-2 (C.D. Cal. Jan. 30, 2002) (unpublished).
58
right, the Court held, to “take proper corrective action” against the deputy prosecutor for what
they perceived to be a misguided (and ultimately unsuccessful) legal analysis of the suppression
issue. Id. at 423.
For several reasons, we reject the School Board’s view that Garcetti should govern
Vlaming’s case. To begin with, Garcetti was not a compelled-speech case. Garcetti applied the
official-duties doctrine to “expressions employees make pursuant to their professional duties,” id.
at 426 (emphasis added), not expressions employees refuse to make. Punishing a government
employee for improper speech may or may not be constitutionally violative, but it is “not easy to
imagine a situation in which a public employer has a legitimate need to demand that its
employees recite words with which they disagree,” Janus, 138 S. Ct. at 2473. This distinction
undermines the School Board’s argument that Garcetti’s official-duties doctrine warrants the
dismissal of Vlaming’s compelled-speech claim. His factual situation is wholly unlike that of
the prosecutor in Garcetti. Vlaming claims that he was fired for what he would not say — unlike
the deputy prosecutor, who was disciplined for what he did say.
Equally important, the punished speech in Garcetti was merely a prosecutor’s legal
opinion on a routine topic in criminal law that was rejected by his superiors and ultimately
rejected by the trial court presiding over the criminal proceeding. In contrast, the compelled
speech in Vlaming’s case involves an ideological topic that has engendered fierce public debate.
“From courts to schoolrooms this controversy continues.” Meriwether, 992 F.3d at 508.
Because “the use of gender-specific titles and pronouns has produced a passionate political and
social debate,” it is obvious that “[p]ronouns can and do convey a powerful message implicating
a sensitive topic of public concern.” Id. “Never before have titles and pronouns been scrutinized
59
as closely as they are today for their power to validate — or invalidate — someone’s perceived
sex or gender identity.” Id. at 509.
For these reasons, we find Garcetti’s official-duties doctrine inapplicable to the
allegations in Vlaming’s complaint. Applying our understanding of Article I, Section 12 of the
Constitution of Virginia to this case, we hold the view that “where the State’s interest is to
disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an
individual’s First Amendment right to avoid becoming the courier for such message.” Wooley,
430 U.S. at 717. The School Board cannot avoid this constitutional prohibition by simply
declaring it Vlaming’s “official duty” to courier the School Board’s ideological view of gender
identity.
Our conclusion is reinforced by the fact that Garcetti anticipated and disavowed any
effort to interpret the official-duties doctrine as inflexibly applying to all aspects of “classroom
instruction” or “speech related to scholarship or teaching.” 547 U.S. at 425. 34 The Supreme
Court followed up this qualification with a warning to employers who might in the future create
“excessively broad job descriptions” in an effort to make everything said while at work a
potential violation of the employee’s official duties. Id. at 424-25. Both reasons further counsel
against applying Garcetti’s official-duties doctrine to the facts alleged in Vlaming’s complaint.
34
The dissent claims that the “classroom” exception to Garcetti’s official-duties doctrine,
despite its breadth and unqualified language, applies only to professors in public colleges and
universities but not to teachers in high schools. Post at 126 note 25. Given our reasoning, we
need not engage in this debate in any detail. For purposes of resolving the unique case before us,
the Garcetti approach does not account for the nuances implicated in Vlaming’s case, regardless
of whether Vlaming taught at a high school or university level.
60
4.
Our dissenting colleagues bring to our attention several lower federal court opinions that
have developed a curricular-speech application of Garcetti’s official-duties doctrine. Having
carefully considered all of them, we have not found any that help us resolve Vlaming’s case. For
example, in Evans-Marshall v. Board of Education of Tipp City Exempted Village School
District, a high school teacher claimed a First Amendment right “to select books and methods of
instruction for use in the classroom without interference from public officials.” 624 F.3d 332,
334 (6th Cir. 2010). The Sixth Circuit held that no such right existed. We see no need to contest
this conclusion. It is generally true, as one court explained, “that those authorities charged by
state law with curriculum development [may] require the obedience of subordinate employees,
including the classroom teacher.” Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 479
(7th Cir. 2007) (alteration in original) (emphasis added).
The concept of a curricular-speech exception is rational and legally sound. It is its
application to this case that we contest. Neither Evans-Marshall nor Mayer involved compelled
speech on a highly divisive, ideological issue that violated a teacher’s religious faith, and our
case does not involve a teacher demanding the right to teach a different curriculum from the one
that he was hired to teach. 35 We hold that the curricular-speech exception in compelled-speech
35
The dissent cites Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 271 (1988),
as an on-point example of the “school curriculum” limitation on a teacher’s free-speech rights.
Post at 120-21. Kuhlmeier analyzed “the First Amendment rights of students,” 484 U.S. at 266,
not teachers. Nothing in Kuhlmeier addressed the curricular-speech limitation on a teacher’s
free-speech rights. The Fourth Circuit, however, found the Kuhlmeier analogy pertinent in a
case where the teacher claimed a First Amendment right to unilaterally determine the “makeup
of the school curriculum through the selection and production of a play.” Boring v. Buncombe
Cnty. Bd. of Educ., 136 F.3d 364, 366 (4th Cir. 1998) (en banc). We have no contest with the
view that the First Amendment does not authorize a drama teacher to create and produce the
curriculum for the school’s official “dramatics” program in which plays are “performed in
interscholastic drama competitions.” Id. at 367-68. Again, we need not decide whether the
61
cases applies only to the specific “subjects” that the teacher “is expected to teach,” Brown, 824
F.3d at 715. 36 The exception would eclipse the rule if we held otherwise.
5.
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. The factual allegations of Vlaming’s complaint,
coupled with the reasonable inferences therefrom, state legally viable claims that he was fired in
violation of Article I, Section 12 of the Constitution of Virginia. 37
E.
Vlaming’s complaint further alleges that the School Board fired him in violation of
Article I, Section 11 of the Constitution of Virginia, which states that “no person shall be
result would be the same under Article I, Section 12 because the facts of Boring (a teacher
demanding the unreviewable right to dictate the school’s drama curriculum) are far afield from
the facts of Vlaming’s case (a teacher refusing on religious grounds to use government-mandated
pronouns in a French class).
36
We offer no opinion, favorable or unfavorable, on the application of the curricular-
speech exception outside the context of a compelled-speech context.
37
Count II of Vlaming’s complaint uses the expression “Viewpoint and Content
Discrimination,” J.A. at 27-29, and Count III alleges “Retaliation” by the School Board, id. at
29-31. These counts add that the School Board fired him not only “for not expressing the
Board’s views regarding gender identity” (as in Count I) but also for “expressing his views” on
why he could not comply with the compelled-speech directive. See id. at 27. Read with the
benefit of reasonable inferences, the pertinent allegations in Vlaming’s complaint appear to
describe private statements that he made to the school administration about his avoidance of
third-person pronouns in the classroom and his religious reasons for this decision. We need not
dwell long on this issue. Courts have soundly rejected “the conclusion that a public employee
forfeits his protection against governmental abridgment of freedom of speech if he decides to
express his views privately rather than publicly.” Givhan, 439 U.S. at 414. As we observed
earlier, the concept of “gender identity” is among the many “controversial subjects” that are
rightly perceived as “sensitive political topics” occupying the “highest rung of the hierarchy” of
free-speech protection. Supra at 56 (quoting Janus, 138 S. Ct. at 2476). Assuming Vlaming’s
factual allegations are true, his complaint states prima facie claims of viewpoint discrimination
and retaliation for his expressed statements (in addition to the unexpressed statements that the
62
deprived of his life, liberty, or property without due process of law.” 38 On several levels, Article
I, Section 11 parallels the procedural due-process protections in the Fifth and Fourteenth
Amendments to the United States Constitution. While interpreting and applying the former, we
review, as persuasive (but not binding) authority, United States Supreme Court opinions
construing the latter. In this respect, we hold that the protections of Article I, Section 11 are at
least as strong as the existing understanding of procedural due-process rights secured by the
United States Constitution.
In this case, Vlaming alleges that the School Board based its termination decision upon
two written policies that neither expressly nor implicitly required teachers to use third-person
pronouns, in addition to preferred names, for transgender students. Dismissing this claim on
demurrer, the circuit court held as a matter of law that any ordinary person would have known
that these policies forbade Vlaming’s nonuse of pronouns and authorized his termination as the
price of his silence. We disagree.
1.
Under settled procedural due-process principles, a government requirement “is
unconstitutionally vague if persons of ‘common intelligence must necessarily guess at [the]
meaning [of the language] and differ as to its application.’” Tanner v. City of Va. Beach, 277
Va. 432, 439 (2009) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)). A
School Board attempted to compel him to make) in violation of his right of free expression under
Article I, Section 12 of the Constitution of Virginia.
38
The School Board did not contest below or on appeal that Vlaming has a property
interest in the non-probationary status of his employment agreement. See generally Gilbert v.
Homar, 520 U.S. 924, 928 (1997) (“The protections of the Due Process Clause apply to
government deprivation of those perquisites of government employment in which the employee
has a constitutionally protected ‘property’ interest.”); Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 538 (1985) (holding that a person having a property right in continued employment
cannot be deprived of that property interest without due process).
63
provision without “ascertainable standards” fails to provide “‘fair notice’ to citizens as required
by the Due Process Clause.” Id. at 440.
This principle is particularly important when “vague language” implicates free-speech
concerns because of the risk that individuals will self-censor “based on a fear that they may be
violating an unclear law.” Id. at 439. Vague statutes that touch “‘upon sensitive areas of basic
First Amendment freedoms’ . . . inevitably lead citizens to ‘steer far wider of the unlawful
zone’ . . . ‘than if the boundaries of the forbidden areas were clearly marked.’” Grayned v. City
of Rockford, 408 U.S. 104, 109 (1972) (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)).
While “[v]ague laws in any area suffer a constitutional infirmity,” courts “look even more
closely” at vagueness that implicates freedom of expression. Ashton v. Kentucky, 384 U.S. 195,
200 (1966); see also FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253-54 (2012)
(recognizing that the “requirement of clarity in regulation is essential to the protections provided
by the Due Process Clause” and that “[w]hen speech is involved, rigorous adherence to [due-
process] requirements is necessary to ensure that ambiguity does not chill protected speech”).
These principles are not limited to penal statutes. Even though “[s]chool disciplinary rules need
not be as detailed as a criminal code,” Parents Defending Educ. v. Linn Mar Cmty. Sch. Dist., 83
F.4th 658, 668 (8th Cir. 2023), “a proportionately greater level of scrutiny is required [when] the
regulation reaches the exercise of free speech,” id. (citation omitted).
In this case, Vlaming asserts an “as applied” constitutional challenge. See, e.g., FEC v.
Wisconsin Right to Life, Inc., 551 U.S. 449, 481 (2007); Stanley v. City of Norfolk, 218 Va. 504,
506 (1977). Vlaming’s as-applied claim asks us to examine the clarity of the School Board’s
policies not in the abstract, but as they apply to his specific situation — the avoidance of any
third-person pronouns when referring to Doe, accompanied by the agreement to use Doe’s
64
preferred name. The relevant question, therefore, is whether the School Board’s policies clearly
informed teachers that they could be fired for not using third-person pronouns in addition to
preferred names when referring to transgender students. This focused analysis cannot be
satisfied by generalizations alone.
The first policy, “School Board Policy AC,” stated in pertinent part that the School Board
is “committed to nondiscrimination with regard to . . . gender identity . . . as defined by law.”
J.A. at 71 (emphasis added). As for the defining law on this issue, the policy cited the Education
Amendments Act of 1972, 20 U.S.C. §§ 1681-88, more commonly known as Title IX. The
second policy, “School Board Policy GBA/JFHA,” prohibited, among other things, “harass[ing]
a student . . . based on . . . gender identity.” J.A. at 73. Such harassment included “name calling,
jokes or rumors,” “slurs, negative stereotypes and hostile acts,” and “physical acts of
aggression.” Id. at 75. Policy GBA/JFHA also listed “gender identity” as a legally protected
category under Title IX by attempting to incorporate its provisions by reference.
Neither of the two written School Board policies mentioned the use or nonuse of
pronouns. Nor did they mandate the use of only government-approved pronouns for transgender
students. The School Board does not claim otherwise. Instead, it points out that both written
policies “incorporate” by reference “Title IX standards,” Appellees’ Br. at 58, and argues that in
this and many other contexts, ignorance of the law is no excuse. In other words, the School
Board argues, Vlaming should have known that Title IX standards enforced by these policies
clearly required him to use pronouns in addition to names when referring to transgender students.
We disagree.
Title IX states generally that no person “on the basis of sex” should be “subjected to
discrimination” in any federally funded school. 20 U.S.C. § 1681(a). Title IX regulations define
65
“sexual harassment” as “unwelcome conduct” that is “so severe, pervasive, and objectively
offensive that it effectively denies a person equal access to the recipient’s education program or
activity.” 34 C.F.R. § 106.30(a) (restating the standard adopted by Davis ex rel. LaShonda D. v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999)). No appellate court, federal or state, has
ever held, in the school context, that referring to a transgender student by preferred name and
avoiding the use of any third-person pronouns to refer to the student is a severe, pervasive, and
objectively offensive act of harassment under Title IX. To date, the only appellate court opinion
directly addressing the issue has held the opposite. See Meriwether, 992 F.3d at 511 (concluding
that the school’s “purported interest in complying with Title IX is not implicated by [the
professor’s] decision to refer to Doe by name rather than Doe’s preferred pronouns”).
2.
In support of its argument that discrimination “defined by law,” J.A. at 71, 73, clearly
applied to Vlaming’s avoidance of third-person pronouns, the School Board on brief cites three
federal district court opinions — two published, one unpublished. See Tay v. Dennison, 457 F.
Supp. 3d 657, 682-84 (S.D. Ill. 2020); Milo v. Cybercore Techs., LLC, No. SAG-18-3145, 2020
WL 134537, at *7-8 (D. Md. Jan. 13, 2020) (unpublished); Parker v. Strawser Constr., Inc., 307
F. Supp. 3d 744, 748, 756-59 (S.D. Ohio 2018). These cases are unhelpful to our analysis
because each case involves different facts and dissimilar statutory schemes.
All three cases address the purposeful use of non-preferred pronouns as opposed to the
avoidance of any third-person pronouns. See Tay, 457 F. Supp. 3d at 650, 678, 683 n.15; Milo,
2020 WL 134537, at *2-3, 6-8; Parker, 307 F. Supp. 3d at 748. Two cases involve
interpretations of Title VII’s provisions protecting “transgender status” in the context of
employment discrimination. See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1753 (2020)
66
(disclaiming any intent to signal that its reasoning or holding “will sweep beyond Title VII to
other federal or state laws that prohibit sex discrimination”). The third case involves an inmate’s
claim under 42 U.S.C. § 1983. None of the federal district court opinions mention, much less
address, Title IX’s provisions governing discrimination “on the basis of sex” in federally funded
schools. “Title VII differs from Title IX in important respects,” and thus, “it does not follow that
principles announced in the Title VII context automatically apply in the Title IX context.”
Meriwether, 992 F.3d at 510 n.4; see also Adams ex rel. Kasper v. School Bd. of St. Johns Cnty.,
57 F.4th 791, 811 (11th Cir. 2022).
School officials supported their interpretation of Title IX with a document entitled “Fact
Sheet on U.S. Department of Education Policy Letter on Transgender Students.” See J.A. at 46-
49. Prepared by an advocacy group, the “Fact Sheet” omitted an important fact: The “Policy
Letter” relied upon by the advocacy group had been rescinded one-and-a-half years earlier by the
U.S. Department of Education and the U.S. Department of Justice. See id. at 10. In a joint
statement issued in February 2017, both Departments stated that the earlier guidance documents
did not “contain extensive legal analysis or explain how the position is consistent with the
language of Title IX, nor did they undergo any formal public process.” Sandra Battle & T.E.
Wheeler, II, Dear Colleague Letter, U.S. Dep’t of Educ. 1-2 (Feb. 22, 2017), https://www2.ed.
gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf.
On appeal, the School Board responds by pointing out that the U.S. Department of
Education later reversed course again and issued a more protective policy statement in June
2021, two-and-a-half years after Vlaming was fired. 39 We fail to see how this after-the-fact legal
39
See Enforcement of Title IX of the Education Amendments of 1972 with Respect to
Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton
County, 86 Fed. Reg. 32,637 (June 22, 2021); see also Suzanne B. Goldberg, Letter to Educators
67
pronouncement changes the fair-notice analysis. Whatever persuasive value the 2021 policy
statement may have had at the time it was issued — which is itself debatable 40 — it cannot cure
a previous procedural due-process violation. We focus on the clarity of the law at the time of the
alleged due-process deprivation, not some later interpretation or clarification by an
administrative body. As we have explained:
[T]he requirement of fair notice contained in due process is not
satisfied if the public cannot determine what the law prohibits or
the standard to which they must conform from either the language
of the statute or a properly promulgated regulation or other official
guidance provided prior to the statute being enforced, but rather
only after the fact from the result of an arbitrary exercise of
discretion by the administrative official charged with enforcing the
statute.
Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 341 (2010); cf. United States v. Lanier, 520 U.S.
259, 267 (1997) (stating that due process requires that a “statute, either standing alone or as
construed, made it reasonably clear at the relevant time that the defendant’s conduct was
criminal” (emphasis added)).
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
on Title IX’s 49th Anniversary, U.S. Dep’t of Educ. 1-2 (June 23, 2021), https://www2.ed.gov/
about/offices/list/ocr/correspondence/stakeholders/educator-202106-tix.pdf; U.S. Dep’t of
Justice & U.S. Dep’t of Educ., Confronting Anti-LGBTQI+ Harassment in Schools, U.S. Dep’t
of Educ. (June 2021), https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-tix-
202106.pdf.
40
In July 2022, a federal district court enjoined the implementation of the 2021 policy
statement in 20 states that had filed the civil action challenging the legality of the administrative
agency’s policy statements. See Tennessee v. United States Dep’t of Educ., No. 3:21-cv-308,
2022 WL 2791450, at *1 n.1, *24 (E.D. Tenn. July 15, 2022), appeal docketed, No. 22-5807 (6th
Cir. Sept. 13, 2022).
68
clear and direct. See, e.g., Parents Defending Educ., 83 F.4th at 668-69 (holding that a school
transgender policy did “not provide adequate notice of what conduct is prohibited” because of
the use of the “capacious concept” of “gender identity”). We offer no opinion on whether this
clarity and directness exists today, but we can say with confidence that it did not exist in 2018
when the School Board fired Vlaming.
For these reasons, we hold that the circuit court erred by dismissing on demurrer
Vlaming’s due-process claim. The allegations in his complaint, coupled with reasonable
inferences therefrom, state a legally viable claim under the Due Process Clause of Article I,
Section 11 of the Constitution of Virginia. 41
3.
We acknowledge the contrary view advanced by the dissent. It appears to rest on two
related assertions. We find neither one convincing.
The first assertion is that, as a matter of law, Vlaming should have known that the School
Board’s policies “required him to use Doe’s preferred pronouns” as opposed to avoiding the use
of third-person pronouns altogether. Post at 140. Vlaming’s complaint, however, expressly
alleges that he did not and could not have known that this is what the policies required. This
allegation cannot be swept away on demurrer as intrinsically implausible. We have read the
policies beginning to end and find nothing in them about the mandatory use of third-person
pronouns. Maybe so, the dissent responds, but school officials “informed Vlaming that he could
41
In the circuit court, the School Board argued that Policies AC and GBA/JFHA in 2018
also incorporated by reference the Virginia Human Rights Act, presently codified as Code
§§ 2.2-3900 to -3909, and that it, like Title IX, applied to gender-identity discrimination. The
School Board, however, has abandoned that argument on appeal. We will not address it other
than to observe that “gender identity” did not exist as a protected class in the Virginia Human
Rights Act until 2020 (nearly two years after Vlaming was fired) when the General Assembly
amended the Act to expressly add it. See 2020 Acts chs. 1137, 1140, at 2274-75, 2311.
69
be violating federal law” incorporated by reference in the written policies. Post at 141 (emphasis
added). We find no legal significance in the mere assertion that the enforcing officials “saying it
is so makes it so.” At that time and even now, it is entirely unclear whether the nonuse of third-
person pronouns would be or, for that matter, even “could be,” post at 141, a violation of federal
law.
The second assertion is that the policies really did not need to be clear because “the
demands of public secondary and elementary school discipline are such that it is inappropriate to
expect the same level of precision in drafting school disciplinary policies as is expected of
legislative bodies crafting criminal restrictions.” Post at 139-40 (quoting Sypniewski v. Warren
Hills Reg’l Bd. of Educ., 307 F.3d 243, 260 (3d Cir. 2002)) (citing Hardwick ex rel. Hardwick v.
Heyward, 711 F.3d 426, 442 (4th Cir. 2013)). The precedents cited, however, do not support the
proposition asserted. The “disciplinary policies” in these cases involved disciplining students for
violating school dress codes, not firing a tenured teacher for failing to use third-person pronouns.
As we have emphasized, whether “the timing and content of the notice” is constitutionally
sufficient “will depend on appropriate accommodation of the competing interests involved.”
Fairfax Cnty. Sch. Bd. v. S.C. ex rel. Cole, 297 Va. 363, 376 (2019) (quoting Goss v. Lopez, 419
U.S. 565, 579 (1975)). Vlaming’s interest in keeping his tenured job (a constitutionally
protected property interest) is qualitatively different than a student’s interest in wearing T-shirts
that violate school dress codes (as in Sypniewski and Hardwick).
F.
Finally, Vlaming challenges the circuit court’s dismissal of his claim that the School
Board breached his employment contract. The complaint alleges that, at the time Vlaming was
fired, he had been employed as a teacher for six years, had received “only positive feedback in
70
teacher evaluations” during his service, and had been granted “continuing contract status.” See
J.A. at 5-6, 42. Based upon these allegations, Vlaming claims that his employment relationship
with the School Board was governed by a contract terminable only for cause. The School Board,
Vlaming contends, did not have good cause to fire him.
With respect to terminations based on a teacher’s misconduct, Virginia law distinguishes
between teachers who have “achieved continuing contract status” and teachers who have not.
See Code §§ 22.1-304(A)-(B), -305. See generally Wade Anderson, School Law, in Handbook
of Virginia Local Government Law § 18-8.01(b)-(c), at 18-84 to -86 (April Wimberley ed., 2023
ed.). The latter teachers are treated as “probationary” employees with limited job security. Code
§ 22.1-303(A). The former teachers have a “form of tenure,” Dennis v. County Sch. Bd. of
Rappahannock Cnty., 582 F. Supp. 536, 538 (W.D. Va. 1984), because these teachers have a
contractual right to continued employment “during good behavior and competent service,” Code
§ 22.1-304(B); see also Code § 22.1-307 (listing examples of grounds for dismissal).
As previously discussed, Vlaming’s complaint alleges that the School Board fired him
because he asserted his Virginia constitutional rights to free exercise and free speech, as well as
his statutory rights under VRFRA. Because we hold that these claims are legally viable, it
necessarily follows that Vlaming has also alleged a valid breach-of-contract claim. By merely
asserting his legal rights, Vlaming could not have violated any condition of “good behavior and
competent service” statutorily implicit in his employment agreement. See Code § 22.1-304(B);
see also Code § 22.1-295.2(A)-(B) (forbidding discriminatory “employment” actions “on the
basis of” a teacher’s “religion,” including “any outward expression of religious faith”). The
circuit court, therefore, erred when it dismissed on demurrer Vlaming’s claim that the School
Board had breached his employment contract.
71
III.
One final emotive theme in the dissenting opinion warrants a response. The dissent
asserts that Doe is “nearly invisible” in our legal analysis because we have violated the
“obligation and duty” of all courts “to demonstrably ensure that parties and those similarly
situated know their positions have been heard, understood, and addressed.” Post at 143. To
remedy our purported breach of this obligation and duty, the dissent provides a series of legal
and factual arguments in support of Doe’s transgender rights.
For example, the dissent relies heavily on a divided panel opinion of the United States
Court of Appeals for the Fourth Circuit, Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th
Cir. 2020). That case posed the question whether federal law gives “transgender students” a
right to use school bathrooms different from those reserved for the students based upon their “so-
called ‘biological sex.’” Id. at 593. The answer, the majority in Grimm exclaimed, was
“resoundingly yes.” Id. In dissent, Judge Niemeyer took a demonstrably different view. We
offer no commentary on the majority or dissenting opinions in Grimm because we are applying
Virginia law, not federal law, and because Doe is not a party to this case. 42
The dissent also volunteers an extensive factual argument in support of Doe. It adopts
the views of various authors and advocates discussing the psychological need for transgender
students to be uncritically affirmed in their chosen identities. 43 Whatever their legal relevance or
42
Doe unsuccessfully sought leave to intervene in the circuit court and ultimately
withdrew an appeal of the circuit court’s order denying intervention. J.A. at 324; R. Add. at 13.
43
No mention is made, however, of any contrary views in the medical literature, see, e.g.,
Stephen B. Levine & E. Abbruzzese, Current Concerns about Gender Affirming Therapy in
Adolescents, 15 Current Sexual Health Reps. 113 (2023); Stephen B. Levine et al.,
Reconsidering Informed Consent for Trans-Identified Children, Adolescents, and Young Adults,
48 J. Sex & Marital Therapy 706 (2022); Jilles Smids & Patrik Vankrunkelsven, Onzekerheden
Rond de Huidige Genderzorg [Uncertainties Around the Current Gender Care], NTvG [Dutch J.
72
probative weight, these factual arguments are inappropriate for our appellate review of the circuit
court’s order granting the School Board’s demurrer and plea in bar. The School Board presented
no evidence on Doe’s psychological state for the circuit court to consider. Nor did the court’s
ruling make any factual findings, which was entirely correct not to do when it decided the matter
on a demurrer. Granting a demurrer means that no factual findings are legally material because
the complaint’s allegations of fact, even if true, do not state any prima facie legal claims. See
supra at 7-8. Because there is no evidentiary record, developed or undeveloped, we respond to
the proffer of hypothetical facts in the dissent only to make clear that they are not before us on
appeal.
IV.
In sum, the circuit court erred when it dismissed this case based solely on a review of the
pleadings. Accepting arguendo that the allegations in the complaint are true, as we must because
of the posture of this appeal, Vlaming has asserted legally viable claims under the Constitution of
Virginia, the VRFRA, and common-law contract principles. We reverse the circuit court’s
dismissal order and remand this case for further proceedings consistent with this opinion.44
Reversed and remanded.
Med.] (Nov. 7, 2023) (Neth.), https://www.ntvg.nl/artikelen/onzekerheden-rond-de-huidige-
genderzorg (abstract in English available at https://pubmed.ncbi.nlm.nih.gov/37930172/);
Kenneth J. Zucker, Debate: Different Strokes for Different Folks, 25 Child & Adolescent Mental
Health 36 (2020); Kenneth J. Zucker, Adolescents with Gender Dysphoria: Reflections on Some
Contemporary Clinical Research Issues, 48 Archives Sexual Behav. 1983 (2019); Jennifer
Block, Gender Dysphoria in Young People is Rising — and so is Professional Disagreement,
BMJ (Feb. 23, 2023), https://www.bmj.com/content/380/bmj.p382; Paul W. Hruz, A Clarion
Call for High-Quality Research on Gender Dysphoric Youth, Acta Paediatrica (July 8, 2023),
https://onlinelibrary.wiley.com/doi/full/10.1111/apa.16895, or the conflicting views of popular
social commentators, see, e.g., Helen Joyce, Trans: When Ideology Meets Reality (2021).
44
The dissent includes nearly 11 pages of “appropriate considerations” for the circuit
court to apply on remand. Post at 108-18; see also post at 119 note 23 (describing “appropriate”
issues for the circuit court to decide “[o]n remand”). A circuit court on remand, however, must
be faithful to “‘both the letter and spirit’ of an appellate mandate” and not seek to reconsider
73
JUSTICE POWELL, with whom CHIEF JUSTICE GOODWYN joins, concurring 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, 374 U.S. 398, 406-09 (1963). I disagree with the majority’s
conclusion “that ‘overt acts against peace and good order,’ Code § 57-1, 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.” Supra at 18-
19. As I read it, the test articulated by the majority may incorporate a limiting principle that has
the potential to effectively narrow the state’s cognizable compelling governmental interests to
only those that regulate peace and good order. Supra at 19, 22. I believe that adopting the
language of a limiting principle, which was purposefully stated in a statute rather than the
Constitution, and declaring it to be a constitutional standard, or a principle of constitutional
magnitude, is not supported by the language of our Constitution nor by historical analysis.
It is essential to note that the words “overt acts against peace and good order” do not
appear in Article I, Section 16. Rather, the majority extrapolates this limiting principle from a
statute, Thomas Jefferson’s 1786 Act for Religious Freedom. Supra at 17-19. Indeed, a portion
of this statute was incorporated verbatim into Article I, Section 16:
No man shall be compelled to frequent or support any religious
worship, place, or ministry whatsoever, nor shall be enforced,
restrained, molested, or burthened in his body or goods, nor shall
otherwise suffer on account of his religious opinions or belief; but
all men shall be free to profess and by argument maintain their
“issues that ‘the mandate laid at rest.’” Sidya v. World Telecom Exch. Commc’ns, LLC, 301 Va.
31, 41 (2022) (citation omitted). It is thus fair to observe, as Chief Justice Roberts recently did,
that “[a] dissenting opinion is generally not the best source of legal advice on how to comply
with the majority opinion.” Students for Fair Admissions, Inc. v. President & Fellows of Harv.
Coll., 600 U.S. 181, 230 (2023).
74
opinions in matters of religion, and the same shall in no wise
diminish, enlarge, or affect their civil incapacities.
Compare Va. Const. Art. I, sec. 16 with Code § 57-1; see also Amicus Curiae, Brief for
Professor Alan Taylor in Support of Appellees, at 6 (noting that this portion of Jefferson’s statute
“was incorporated into the Virginia Constitution during the 1829 Convention”). The Virginia
Constitution has been revised, amended, and reenacted numerous times since then, and in each
instance, the delegates could have incorporated the peace and good order language into the
Constitution. They did not. Va. Const. Art. I, sec. 16. As admitted by the majority, the
language is a purely legislative creation. I am aware of no precedent which provides a rationale
for the judicial transformation of a long-standing statutory provision into a constitutional
standard. Cf. City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (noting that Congress does not
have the power to decree or alter the meaning of constitutional rights). Rather, the fact that a
limiting principle remained in a statute rather than being placed in the Constitution, despite
numerous opportunities to do so, indicates the specific intent not to make the statutory language
part of the constitutional provision. Therefore, I do not believe that it is appropriate for us to
judicially incorporate that specific language from Code § 57-1 into our Constitution when the
drafters of our Constitutions have not seen fit to include it.
Acknowledging the omission of its stated limiting principle from the language of the
Constitution, the majority highlights a historical interpretation by Justice Sandra Day O’Connor
in a dissent, to suggest that the statutory language in Code § 57-1 is a legislative attempt to strike
a balance between “Mason’s narrower and Madison’s broader notions of the right to religious
freedom.” Supra at 16 (citing City of Boerne, 521 U.S. at 557 (O’Connor, J., dissenting)).
However, that observation is not a rationale for interpreting the statutory language as an
intentional constitutional standard. Legislative history is not a basis for the judiciary to recast a
75
statute, much less a constitutional provision, by supplying a term the drafters left out. See
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001) (citing Gulf Oil Corp. v. Copp
Paving Co., 419 U.S. 186, 202 (1974); see also Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 94 (2012) (“To supply omissions transcends the judicial
function.”) (internal quotations and citations omitted).
The significance of the omission of that statutory language from our Constitution is
heightened by the fact that a majority of states during the founding era expressly included a
“peace and good order” carveout in the free exercise provisions of their constitutions. 1
1
See Del. Declaration of Rights §§ 2–3 (1776) (“That all men have a natural and
unalienable right to worship Almighty God according to the dictates of their own consciences
and understandings . . . That all persons professing the Christian religion ought forever to enjoy
equal rights and privileges in this state, unless, under colour of religion, any man disturb the
peace, the happiness or safety of society.”) (emphasis added); Md. Const. Decl. of Rts. art. 33
(1776) (“wherefore no person ought by any law to be molested in his person or estate on account
of his religious persuasion or profession, or for his religious practice, unless under colour of
religion any man shall disturb the good order, peace or safety of the state, or shall infringe the
laws of morality, or injure others, in their natural, civil or religious rights”) (emphasis added);
Mass. Const. Pt. 1, art. II (1780) (“no subject shall be hurt, molested, or restrained, in his person,
liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of
his own conscience; or for his religious profession or sentiments; provided he doth not disturb
the public peace, or obstruct others in their religious worship”) (emphasis added); N.H. Const.
Pt. 1, art. 5 (1783) (“Every individual has a natural and unalienable right to worship God
according to the dictates of his own conscience, and reason; and no subject shall be hurt,
molested, or restrained in his person, liberty or estate for worshipping God in the manner and
season most agreeable to the dictates of his own conscience; or for his religious profession,
sentiments, or persuasion; provided he doth not disturb the public peace, or disturb others in
their religious worship.”) (emphasis added); N.Y. Const., Art. XXXVIII (1777) (“[T]he free
exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That
the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of
licentiousness, or justify practices inconsistent with the peace or safety of this State.”) (some
emphasis added); Charter of Rhode Island and Providence Plantations (July 15, 1663) (“that no
person within the said colony, at any time hereafter, shall be any wise molested, punished,
disquieted, or called in question, for any differences in opinion in matters of religion, and do not
actually disturb the civil peace of our said colony; but that all and every person and persons may,
from time to time, and at all times hereafter, freely and fully have and enjoy his and their own
judgments and consciences, in matters of religious concernments, throughout the tract of lance
76
Interestingly, only four of those states have examined the breadth of their free exercise
provisions and none of them rely on the “peace and good order” language to define a limiting
principle today. See Doe v. Catholic Relief Servs., 300 A.3d 116, 131, n.15 (Md. 2023) (“This
Court has treated Article 36 as embodying the protections guaranteed by the Free Exercise
Clause of the First Amendment.”); State v. Mack, 249 A.3d 423, 441-43 (N.H. 2020) (rejecting
Employment Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872 (1990) and adopting the
traditional strict scrutiny test); Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459,
466-67 (N.Y. 2006) (rejecting both strict scrutiny and Smith, and holding “that substantial
deference is due [to] the Legislature, and that the party claiming an exemption bears the burden
of showing that the challenged legislation, as applied to that party, is an unreasonable
interference with religious freedom.”); Attorney General v. Desilets, 636 N.E.2d 233, 235-36
(Mass. 1994) (adopting traditional strict scrutiny).
The majority also states that Sherbert supports the limiting principle applicable to Article
I, Section 16 of the Virginia Constitution. Supra at 20-22. However, Sherbert does not support
the specific language of the limiting principle stated by the majority. In dicta, the United States
Supreme Court noted that it had previously “rejected challenges under the Free Exercise Clause
to government regulation of certain overt acts prompted by religious beliefs or
principles. . . [where] [t]he conduct or actions so regulated have invariably posed some
hereafter mentioned; they behaving themselves peaceably and quietly, and not using this liberty
to licentiousness and profaneness, nor to the civil injury or outward disturbance of others”)
(archaic spelling modernized; emphasis added); S. C. Const., Art. VIII, § 1 (1790) (“The free
exercise and enjoyment of religious profession find worship, without discrimination or
preference, shall forever hereafter be allowed within this State to all mankind: Provided, that the
liberty of conscience thereby declared shall not be so construed as to excuse acts of
licentiousness, or justify practices inconsistent with the peace or safety of this State.”) (emphasis
added).
77
substantial threat to public safety, peace or order.” Sherbert, 374 U.S. at 403 (collecting cases).
Notably, this is the only instance in which the phrase “peace or order” appears in the opinion.
This passage from Sherbert does not suggest that peace and order are the only valid compelling
interests the government may advance to justify regulation of conduct that burdens the free
exercise of religion, but rather describes a trend in cases that had come before the Court. See id.
Indeed, of the four cases cited, one dealt with a threat to public safety occasioned by a failure to
observe a vaccination mandate, Jacobson v. Massachusetts, 197 U.S. 11 (1905); two dealt with a
ban against polygamy, treated as a general offense against society, Cleveland v. United States,
329 U.S. 14 (1946); Reynolds v. United States, 98 U.S. 145 (1878); and the fourth dealt with
child labor laws, Prince v. Massachusetts, 321 U.S. 158 (1944). To the extent that any of these
are easily classified, they sound more like regulations regarding public safety or general order
rather than specific “overt acts against peace and good order.”
Respectfully, the majority spends a good deal of time focusing on what it describes as a
limiting principle stated differently at various times as “overt acts against peace and good order”
and at others as “peace and safety” or “conduct or actions . . . [that] posed some substantial threat
to public safety, peace, or order.” 2 Supra at 19-20. As noted above, these words do not appear
2
The majority does not precisely define the term “overt acts against peace and good
order.” Rather than “catalogue” the entire “subset of ‘overt acts’” that might limit an
individual’s free exercise rights, supra at 22, the majority offers two examples as understood by
the Founders: kidnapping for the purpose of proselytizing and trespassing on private property to
protest immoral activity. Supra at 20 (citing Michael W. McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1464 (1990) [hereinafter
McConnell, Origins]).
Noted in the same passage is Madison’s view that free exercise does not grant an
individual the right to invade the rights of others. McConnell, Origins, at 1464. Jefferson
espoused a similar view and suggested that “the legitimate powers of government extend to such
acts [of religious expression] only as are injurious to others.” Thomas Jefferson, Notes on
Virginia, in 8 The Works of Thomas Jefferson 249, 400 (H.A. Washington ed., 1884). As noted
78
in our Constitution. The majority then concludes that the strict scrutiny analysis in Sherbert
“frame[s] the nature of the limiting principle.” Supra at 20. To avoid any confusion, I would
clearly state the test in familiar terms as requiring the government to justify any substantial
burden on religiously motivated conduct by a compelling state interest and by means narrowly
tailored to achieve that interest. Sherbert, 374 U.S. at 406-09.
JUSTICE MANN, with whom CHIEF JUSTICE GOODWYN and JUSTICE POWELL join as
to Parts II, III, and IV, concurring in part and dissenting in part.
The issues before us today raise the most delicate human questions of religion, liberty,
individualism, and the proper conception of these rights in a society which holds divergent views
on the meaning of each. Today we have done little to harmonize this divergence. Now, Virginia
stands alone among every jurisdiction in this country by imposing a new level of scrutiny; a
super scrutiny for religious rights but no others.
As to the majority’s opinion, I concur with its judgment that the circuit court erred in
dismissing Vlaming’s legally viable free-exercise claims under the Virginia Constitution and
VRFRA, and common law contract claims. I therefore agree with the majority to reverse the
circuit court’s dismissal order and remand this case for further proceedings in the circuit court.
However, as stated, I dissent from the majority’s analysis and interpretation of Article I, Section
16 of the 1971 Constitution of Virginia. The majority’s proposed limiting principle for the free
exercise provision in the 1971 Constitution of Virginia is not supported by the plain words of our
Constitution, its history, our legal precedent, or legislative action of the General Assembly. I
in cases cited by the majority, supra at 21-22, and as discussed infra by Justice Mann, consistent
with the views of Madison, Mason, and Jefferson, modern jurisprudence has recognized
compelling interests aimed at safeguarding the rights and wellbeing of others. See infra at 103-
04 (collecting cases). There is no doubt that safeguarding the rights of others underlies the
School Board’s asserted compelling interest in this case. See infra at 112-13.
79
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. Justice Antonin Scalia,
writing on behalf of the Supreme Court of the United States, warned that interpreting a free
exercise clause so broadly would permit an individual “to become a law unto himself.”
Employment Division v. Smith, 494 U.S. 872, 885 (1990) (quoting Reynolds v. United States, 98
U.S. 145, 167 (1842)). Under the majority’s analytical framework, all laws and regulations must
yield to an individual’s invocation of religious freedom unless doing so results in “overt acts
against peace and good order.” Supra at 17-19. I disagree. 1 The majority casts the limiting
principle it has crafted as a solution rooted in history. History leads me to a different conclusion.
The ambiguity that attends the scope of “overt acts against peace and good order” casts severe
doubt on the workability of the majority’s test. Contrary to the majority’s analysis, as explained
below, I believe the correct interpretation of Article 1, Section 16, as has been historically
interpreted by this Court, permits legislation to incidentally burden religious practice so long as it
does not target religious belief and is applied “to protect all persons” for a secular purpose. See
Rich v. Commonwealth, 198 Va. 445, 449 (1956).
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
1
The separate concurrence authored by Justice Powell echoes this sentiment. Despite
coming to different conclusions, the concern about “peace and good order” remains. See supra
at 74-79. This concept has no defined scope and is absent from our Constitution, no matter
which concurrence you read.
80
achieve a compelling state interest. The majority believes that there is no distinction between its
super scrutiny standard and the compelling state interest standard, claiming that peace and good
order is the historical underpinning of a state’s compelling interest. This is simply not so.
Virginia’s interests cannot be cabined to what our Founders believed to be peace and good
order—as times change, so do a state’s compelling interests.
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. Thus,
Vlaming failed to plead a cognizable free speech or due process claim under the Virginia
Constitution.
In our diverse society, it is imperative “not only to guard the society against the
oppression of its rulers, but to guard one part of the society against the injustice of the other
part.” The Federalist, No. 51 (James Madison). Today, our gates open, unguarded.
I. CONSTITUTIONAL FREE EXERCISE OF RELIGION
Virginia’s Article I, Section 16 imposes a neutrality analysis, requiring courts to
determine whether a generally applicable law is neutral as to religion, and if not, imposing strict
scrutiny review. This test can be distilled from the plain language of Article I, Section 16 which
does not suggest a religious exemption from generally applicable laws. This reading is bolstered
when considering that our Commonwealth’s Constitution was ratified in 1971, thereby baking in
this Court’s precedent that Article I, Section 16 did not include religious exemptions. Finally,
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the history of Article I, Section 16, supports my position that a religious exemption does not lie
in our Constitution.
A fundamental principle of Virginia constitutional analysis that this Court has always
recognized is the plain meaning of the Constitution. “We are not permitted to speculate on what
the framers of [a] section [of the Virginia Constitution] might have meant to say, but are, of
necessity, controlled by what they did say.” Harrison v. Day, 200 Va. 439, 448 (1959). “If there
are ‘no doubtful or ambiguous terms used, we are limited to the language of the section itself and
are not at liberty to search for meaning, intent or purpose beyond the instrument.’” Blount v.
Clarke, 291 Va. 198, 205 (2016) (quoting Harrison, 200 Va. at 448).
Our Court has historically embraced “a general rule that the words of a Constitution are
to be understood in the sense in which they are popularly employed, unless the context or the
very nature of the subject indicates otherwise.” Id. The majority’s opinion departs from this
fundamental principle and crosses the threshold into a world of academic speculation in search of
a limiting principle not included in the Constitution. 2
2
The majority supports its interpretive divergence by extensively citing Chairman
Harrison’s advisory statements on how to interpret the draft version of the 1971 Virginia
Constitution. See supra at 39-40. With all due respect to Justice Harrison, his comments carry
no judicial weight, and his hypothesis that the General Assembly “did not initiate this
Commission with the idea of giving Virginia a new constitution” is incorrect. That is precisely
what the General Assembly did, as the General Assembly’s words and this Court’s precedent
amply provide. See Acts of Assembly 1970, c. 763 (proposing that Virginia voters decide
whether to “strike” the entire Constitution and “insert” a new constitution); Staples v. Gilmer,
183 Va. 613, 630 (1945) (“The vote was favorable, and Virginia had a new constitution.”); Elliot
v. Ashby, 104 Va. 716, 718 (1905) (“More than that, since that time a new Constitution has been
adopted, which has retained, so far as it affects this case, the language of the preceding
Constitution[.]”) (emphasis added); see also Brent Tarter, Constitutional History of Virginia 281
(2023).
82
A. ARTICLE I, SECTION 16 OF VIRGINIA’S 1971 CONSTITUTION
The language of Article I, Section 16 is plain, despite its length. See Pirkey Bros. v.
Commonwealth, 134 Va. 713, 718 (1922) (“The scope of the act of religious freedom may be
gathered from its preamble and from the interpretation thereof in judicial decisions.”). Article I,
Section 16 states generally that “all men are equally entitled to the free exercise of religion,
according to the dictates of conscience.” Then, in pertinent part, it provides that:
No man shall be compelled to frequent or support any religious
worship, place, or ministry whatsoever, nor shall be enforced,
restrained, molested, or burthened in his body or goods, nor shall
otherwise suffer on account of his religious opinions or belief; but
all men shall be free to profess and by argument to maintain their
opinions in matters of religion, and the same shall in nowise
diminish, enlarge, or affect their civil capacities.
Va. Const. art. I, § 16. 3 The clause Vlaming asserts his challenge under is the last one (the Civil
Capacities Clause), which limits the State’s authority to “diminish, enlarge, or affect their civil
capacities” on account of “their opinions in matters of religion.” Id.
The majority’s grammatical analysis of the Civil Capacities Clause makes an error that
skews its reading of the text. The Civil Capacities Clause reads: “. . . and the same shall in
nowise diminish, enlarge, or affect their civil capacities.” Under the rule of the last antecedent,
“all qualifying words and phrases, where no contrary intention appears, apply only to the last
antecedent.” Scott v. Commonwealth, 292 Va. 380, 383 (2016). Thus, the only way to read the
3
Vlaming has limited his argument to the portion of Article I, Section 16 quoted here,
and so I do the same in my analysis. See Pet. for Appeal at 19; Appellant’s Br. at 21; Clifford v.
Commonwealth, 274 Va. 23, 25 (2007) (holding that arguments not made in the petition for
appeal “are not to be considered on appeal” and that “an appellate court may not ‘recast’ an
argument made in a lower court into a different argument upon which to base its decision”).
Vlaming argues that the School Board violated Article I, Section 16 by diminishing his civil
capacities because of his religious beliefs. My analysis must therefore be constrained to
answering that question, rather than reformulating his argument as a natural-rights defense of a
hybrid right to religiously inspired doctrinal speech. See supra at 30.
83
Civil Capacities Clause is to understand “the same” to refer to “their opinions in matters of
religion,” which is the last antecedent preceding the Civil Capacities Clause.
Another misapprehension in the majority’s opinion is its position that I believe that
religious liberty is only protected in the event “civil capacities” are diminished. See supra at 28.
I have neither articulated this position nor do I believe it to be so. What I do believe is that, in
this case, Vlaming has only asserted a free-exercise cause of action based on his diminished civil
capacity as a public-school teacher. I am limited to the claims and arguments presented by the
parties. Clifford v. Commonwealth, 274 Va. 23, 25 (2007). I offer no opinion as to how the
analysis might change under different facts or legal claims.
The Constitutional directive to the State is clear: no one should suffer at the hands of the
state on account of his or her religious beliefs, and their civil capacities—those which derive
from the State—should not be affected on account of a person’s religious beliefs. There is no
question as to what the text of our Constitution says regarding freedom of religious expression.
The issue is not what the text of our Constitution says, but rather what it does not say. Our
Constitution contains no express statement exempting religiously motivated activities from
generally applicable laws. Like the United States Constitution, the Virginia Constitution of 1971
does not state a limiting principle regarding the right to exercise religious freedom.
1. Significance of the 1971 Constitution
The majority rightfully recognizes that there must be some limiting principle applied to
the right Article I, Section 16 establishes. Supra at 16. The majority considers the history of the
text of Article I, Section 16 from its inception and looks to similar analyses conducted by federal
courts concerning the right to free exercise of religion. Considering those factors is proper; my
disagreement with the majority concerns its failure to recognize the significance of the relevant
84
Constitution having been adopted in 1971 as well as the conclusions it draws from its
consideration of history.
The majority vigorously defends its proposition that Virginia voters did not adopt a new
constitution in 1971. See supra at 38-41. This Court has previously held, however, that
Virginians adopt a new constitution when they ratify a general amendment to the constitution by
public referendum. See Elliott v. Ashby, 104 Va. 716, 718 (1905). When a constitutional
provision is construed by a court prior to a readoption of that constitutional provision using
identical language, the prior judicial construction of the provision “must be taken as having been
approved by the adoption of the identical language in the Code and the Constitution.” 4 Id. at
718.
Every time the majority emphasizes that the wording of Section 16 has remained
unchanged since its initial adoption in 1776, they concede my point, because it is precisely the
adoption of a new constitution with unaltered language that informs us that Virginians
incorporated prior judicial interpretations into the 1971 Constitution. By readopting identical
language into the new constitution, existing judicial interpretations were incorporated into the
4
The majority points to Howell v. McAuliffe, 292 Va. 320 (2016), to support its assertion
that “[w]hen a constitutional provision has remained unchanged throughout Virginia
constitutional history, we apply the original meaning of the provision when first adopted.” See
supra at 13. As an initial matter, this directly contradicts our Court’s holding in Ashby, which
states that readoption of identical language of a constitutional provision is evidence of
acquiescence by the electorate to all judicial interpretations issued prior to adoption. See Ashby,
104 Va. at 718. Further, the majority overlooks the fact that, in Howell, we made an express
finding that the constitutional provision cited as authority by the Governor was ambiguous
before turning to the legislative history of Article I, Section 7 of the Constitution of Virginia.
See Howell, 292 Va. at 343. Regardless of the justification in Howell, the majority makes no
parallel finding of ambiguity in this case, and Article I, Section 16 was rewritten against a
backdrop of judicial interpretation, rendering the legislative history from 1776 informative,
rather than declarative, of the original public meaning of Article I, Section 16 of the 1971
Constitution.
85
original public meaning of the 1971 Constitution, in the same way that the General Assembly
incorporates appellate interpretations of statutory language when it recodifies the same language
subsequent to a judicial interpretation.
“As with the constitutional revision of 1928, the General Assembly proposed the new
constitution to the voters in November 1970 in the form known in parliamentary practice as an
amendment in the form of a substitute.” Brent Tarter, Constitutional History of Virginia 281
(2023). “The question on the ballot asked voters whether to delete the entire old
constitution . . . and in its place, insert the new.” Id.; see Acts of Assembly 1970, c. 763
(proposing that Virginia voters decide whether to “strike” the old constitution and “insert” the
new constitution). We have held that ratification by Virginia voters of a general amendment of
the constitution results in a new constitution. Staples v. Gilmer, 183 Va. 613, 630 (1945) (“The
vote was favorable, and Virginia had a new constitution.”); Elliott v. Ashby, 104 Va. at 718.
Jefferson exhorts us, as recounted by the majority, to “carry ourselves back to the time when the
Constitution was adopted.” See supra at 44. In this instance, Jefferson points us to 1971.
2. Historical Framework
I agree with the majority that we must evaluate the historical context of Section 16’s
enactment to glean its meaning, so that is where I begin. But it is only a beginning, not an end to
itself. We need not, and should not, resort to originalism to complete the analysis. See infra at
110-11 (noting Thomas Jefferson’s observation that “laws and institutions must go hand in hand
with the progress of the human mind”).
Taking the original public meaning of 1776 to be informative to my analysis, the majority
misconstrues this, too. Interpreting Article I, Section 16 in its historical context shows that it
was not intended to exempt citizens from neutral laws, but to combat the religious intolerance
86
and establishment that pervaded Colonial Virginia. Viewing the Mason and Madison debates
and eventual compromise against this same historical backdrop reveals the central purpose of
Article I, Section 16, and contextualizes Jefferson’s Act for Religious Freedom. It is helpful to
review the history and context behind the 1776 adoption of Article I, Section 16 of the
Constitution of Virginia to understand the meaning and scope of the language in addressing the
concerns raised by the majority. See Everson v. Bd. of Educ. of Ewing Tp., 330 U.S. 1, 14-15
(1947) (interpreting the First Amendment “in light of its history and the evils it was designed
forever to suppress”). The majority’s historical recitation does not fully consider the evils our
framers attempted to suppress. Ultimately, the inquiry is formulated thusly: “what is the
religious freedom which has been guaranteed[?]” Reynolds v. United States, 98 U.S. 145, 162
(1878). The answer is not one of religious exemptions to neutral laws. Rather, the framers of
Article I, Section 16 intended to combat the religious intolerance and establishment that
pervaded Colonial Virginia. 5
5
The majority points out that Everson involved questions of establishment, not freedom
of religion, and as such bears no relation to Article 1, Section 16. Supra at 32-33. However,
evident from the text of Article I, Section 16 is the message that freedom of conscience can only
flourish in the absence of state-imposed religious coercion. This is not “conflation” but
recognition that the two concepts belong to the same natural rights philosophical and historical
line, where our Founders first addressed specific injustices imposed by the established church
before doing away with it completely. Article I, Section 16’s chosen means of achieving
religious freedom was to disentangle tithes from taxes, chipping away at the state religion’s
reliance on state funds. Jefferson’s Bill for Establishing Religious Freedom was penned only a
year later and passed in a piecemeal fashion until the crowning Statute came into law ten years
after. See Thomas E. Buckley, S.J., The Political Theology of Thomas Jefferson, in The Virginia
Statute for Religious Freedom: Its Evolution and Consequences in American History 83-86
(Merrill D. Peterson & Robert C. Vaughan eds. 1988). “[Jefferson and Madison] were one in
their conviction that freedom of religious belief and worship is a natural right that should be
guaranteed in Virginia’s fundamental law and that the privileged position of a state church
maintained by public taxation violated that natural right.” Id. at 83. In other words, there are no
“separate histories and purposes.” Supra at 33.
87
The eventual adoption of Madison’s free exercise provision was a result of political
compromise, not the legitimization of a constitutional right to religious exemptions to neutral
laws. See generally, Amicus Curiae, Brief for Professor Alan Taylor in Support of Appellees, at
10-12. At the time the General Assembly enacted Jefferson’s Act, the debate was not over the
scope of the free exercise provision but, rather, the disestablishment of the Anglican Church. See
1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 291 (1974) (“[T]here
remained an established church, and the General Assembly received many petitions calling for
statutory action to give further protection for religious liberty.”); see also Amicus Curiae, Brief
for Professor Alan Taylor in Support of Appellees, at 7 (noting that the Anglican Church had
significant involvement in state affairs which “dictated many aspects of official civil life”).
Virginia’s deep entrenchment with the Anglican Church during the colonial era is well-
documented. See e.g., Everson, 330 U.S. at 11 (referring to “Virginia, where the established
church had achieved a dominant influence in political affairs”); McGowan v. Maryland., 366
U.S. 420, 438 (1961) (“Madison had sought also to have the Declaration expressly condemn the
existing Virginia establishment.”); Engel v. Vitale, 370 U.S. 421, 428 n.10 (1962) (noting that
the Church of England was the established church in Virginia). Because of this entrenchment,
the pre-Revolutionary war period in Virginia was fraught with religious intolerance,
discrimination, and hostility. Religious dissenters “faced an array of civil disabilities.” Lee v.
Weisman, 505 U.S. 577, 640-41 (1992) (Scalia, J., dissenting). For example, only Anglican
clergyman could legitimize marriages, “leaving children of those married by dissenting ministers
subject to claims of bastardy, with resulting legal incapacities.” John A. Ragosta, Wellspring of
Liberty: How Virginia’s Religious Dissenters Helped Win the American Revolution and Secured
Religious Liberty 16-17 (2010) [Hereinafter Ragosta, Wellspring].
88
Moreover, the Church and the state were inextricably linked. “[M]inisters were required
by law to conform to the doctrine and rites of the Church of England; and all persons were
required to attend church and observe the Sabbath, were tithed for the public support of Anglican
ministers, and were taxed for the costs of building and repairing churches.” Lee, 505 U.S. at 640
(Scalia, J., dissenting). “The vestry assessment – taxation without representation for religious
dissenters – was usually the highest tax paid by eighteenth century Virginians.” Ragosta,
Wellspring, supra, at 16. Anglican leaders often selectively enforced laws against religious
dissenters, and they had the authority, among other things, to process land boundaries within
their parishes and assist the government in collecting levies. See id. at 16-17, 28. The religious
intolerance and hostility even escalated against some dissenters to physical abuse, intimidation,
and incarceration. Id. at 28; see also Reynolds, 98 U.S. at 162-63 (noting that some colonies
prescribed punishments “for a failure to attend upon public worship, and sometimes for
entertaining heretical opinions”). Persecution of dissenters in the years leading up to the war
increased the call for toleration. Ragosta, Wellspring, supra, at 39. It is against this historical
backdrop – the call for greater toleration – that Mason and Madison’s proposals were introduced.
Id. Religious, social, sexual and racial persecutory intolerance of marginalized groups existed
then and continues along an unbroken line to this moment.
The contemplation of increased toleration through the free exercise provision was not
accompanied by a call for a right of religious exemption to neutral laws. This contention is
supported by an analysis of the views of both Thomas Jefferson and James Madison. 6 Jefferson
6Jefferson and Madison played key roles in the development of Virginia’s free exercise
provisions. See Reynolds, 98 U.S. at 162-63. It is no secret that they also played an integral role
“in the drafting and adoption” of the Religion Clauses of the First Amendment of the federal
constitution. Everson, 330 U.S. at 13. The provisions of the First Amendment “had the same
objective and were intended to provide the same protection[s]” as were secured in Virginia. Id.
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supported a distinction between belief and conduct, contending that the former be protected
against government control and the latter not. Michael W. McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1451 (1990). In
a letter he wrote to the Danbury Baptist Association, he proclaimed that “‘the legislative powers
of government reach actions only, and not opinions . . . . [M]an . . . has no natural right in
opposition to his social duties.’” Id. The United States Supreme Court, in Reynolds, relied on
Jefferson’s sentiments to conclude “that there can be no free exercise right to exemption from a
generally applicable law when such laws are directed at actions and not opinions.” Id.; see also
Reynolds, 98 U.S. at 164.
The prevailing understanding in eighteenth century America regarding the meaning of
“free exercise,” does not support the notion that the government should grant absolute
exemptions based on religion. Religious exemptions to neutral laws were “not even an issue in
serious contention.” Id. at 948; Walter Berns, The First Amendment and the Future of American
Democracy 36 (1976); Richard E. Morgan, The Supreme Court and Religion 23 (1972); David
Little, Thomas Jefferson’s Religious Views and Their Influence on the Supreme Court’s
Interpretation of the First Amendment, 26 Cath. U. L. Rev. 62-64 (1976)). Rather, “the free
exercise of religion meant the freedom to choose and practice one’s religion (or no religion)
without being subjected to intentional, direct government coercion or influence.” Ellis West, The
Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J.L. Ethics & Pub. Pol’y 591,
624 (1990). 7 As understood by the framers, the guarantees secured by the right to religious
Accordingly, any discussion regarding the purpose and understanding of the First Amendment’s
free exercise clause is also beneficial to the analysis of Article I, Section 16 of the Constitution
of Virginia.
7
“[H]owever it may be mistaken, the end of law is not to abolish or restrain, but to
preserve and enlarge freedom: for in all the states of created beings capable of laws, where there
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freedom were two-fold: religious freedom mandated disestablishment and the equal treatment of
religion under the law. 8 Philip A. Hamburger, A Constitutional Right of Religious Exemption:
An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 948 (1992) [hereinafter Hamburger,
Historical Perspective] (explaining that dissenters “frequently agitated for equal civil rights and
the absence of laws respecting religion”).
Analyzing Thomas Jefferson’s 1786 Statute for Religious Freedom within the context of
the “evils” it sought to suppress exemplifies our framer’s understanding of religious freedom’s
twin guarantees. Jefferson’s statute was enacted in the wake of opposition to the introduction of
the 1784 Assessment Bill. Everson, 330 U.S. at 36 (Rutledge, J., dissenting). This bill “was
nothing more nor less than a taxing measure for the support of religion, designed to revive the
payment of tithes suspended since 1777.” Id. Incensed at the idea that the government would
levy a tax expressly for religious support, Madison penned his essay titled “Memorial and
Remonstrance against Religious Assessments,” in which he declared “that in matters of Religion,
no man[’]s right is abridged by the institution of Civil Society and that Religion is wholly
exempt from its cognizance.” Memorial and Remonstrance against Religious Assessments, in 8
The Papers of James Madison, Congressional Series 295, 299. He further argued:
is no law, there is no freedom: for liberty is, to be free from restraint and violence from others;
which cannot be, where there is no law: but freedom is not as we are told a liberty for every man
to do what he lists: . . . but a liberty to disposes, and order as he lists, . . . within allowance of
those laws under which he is, and therein not to be subject to the arbitrary will of another, but
freely follow his own.” John Locke, Second Treatise of Government 32 (C.B. Macpherson ed.
1980) (1st ed. 1690).
8
“Americans during the revolutionary period engaged in extensive discussion and
applied their theory that the state had no power in religious matters. In the majority of states they
decided that freedom of religion applied not only to the exercise of religion, but also to its
support . . . Opponents of state support for religion regarded such support as an establishment,
but they opposed it primarily as a violation of the free exercise of religion.” West, supra at 628
(quoting Thomas Curry, The First Freedoms: Church and State in America to the Passage of the
First Amendment (1986)).
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that a true religion did not need the support of law; that no person,
either believer or non-believer, should be taxed to support a
religious institution of any kind; that the best interest of a society
required that the minds of men always be wholly free; and that
cruel persecutions were the inevitable result of government-
established religions.
Everson, 330 U.S. at 12.
“The opposition galvanized by Madison’s Remonstrance not only scuttled the
Assessment Bill; it [also] spurred Virginia’s Assembly to enact” the Statute for Religious
Freedom. Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2285 (2020) (Breyer, J.
dissenting). That statute, as did the Memorial and Remonstrance, “emphasized the risk to
religious liberty that state-supported religious indoctrination threatened.” Id. at 2286. Following
this enactment, Virginia began to dismantle laws that allowed for the established church.
Ragosta, Wellspring, supra, at 134. Thus, the Statute for Religious Freedom was aimed at
disestablishment and does not provide a resolution to questions regarding the proper scope of
Section 16.
Viewed “in light of its history and the evils it was designed forever to suppress,” it is
evident that the framers sought to address the unequal treatment between religions and the
establishment of religion. See Everson, 330 U.S. at 14-15. There is nothing in the text of Article
I, Section 16 which grants an exemption from neutral laws. From this historical standpoint, the
better-reasoned view is that Article I, Section 16 of the Constitution of Virginia does not support
a right to religious exemptions from neutral laws.
Between 1776 and 1971, not a single decision of this Court recognized a religious
exemption from general laws, and the majority’s “overt acts” test does not appear anywhere in
the Virginia reports. On several occasions, to the contrary, our Court has unequivocally
recognized that civil capacities may be diminished by the State in connection with preconditions
92
that are necessary to the performance of the capacity in question. In 1971, Virginians adopted
this utter rejection of a regime of religious exemptions from general laws into the Constitution of
Virginia (1971) as the original understanding of Article I, Section 16 thereof.
3. Controlling Precedent Interpreting Article I, Section 16
Our precedent interpreting Article I, Section 16 vindicates this historical analysis. As a
preliminary note, the majority accuses me of advocating for the Smith standard without
mentioning the case explicitly. Supra at 13, 25 & n.12, 41. I advocate for a Virginia standard
which supports strict scrutiny of non-neutral laws. I do not expressly endorse Smith because I do
not need to. 9 As explained below, the standard I develop finds its roots in Virginia’s case law,
history, and actions by our General Assembly.
In Perry v. Commonwealth, this Court interpreted Article I, Section 16 to prohibit
government institutions from considering the mere holding of a religious opinion to be a legal
incapacity, where such belief does not naturally disqualify a person from satisfying the capacity.
44 Va. (3 Gratt.) at 643-44. 10 When there is a secular purpose for the disqualification,
9
The majority notes that Smith’s shelf life remains uncertain. Supra at 13. Smith has
been criticized since it became law in 1990. However, it does not make Smith “bad law” or any
less instructive. Smith relied in part on prior Sunday-closing law cases, similar to those in
Virginia. See 494 U.S. at 880 (citing Braunfeld v. Brown, 366 U.S. 599 (1961)).
10
The majority misinterprets Perry. Our Court repeatedly emphasized in Perry that the
witness had been disqualified because of his religious opinions, and that this rendered his
disqualification an unconstitutional civil incapacity. Id. The term “natural-law rights,” does not
appear in Perry. What does appear in the holding of that opinion is the distinction between a
“natural incapacity” and a “civil incapacity,” and that is the distinction I am after. Id. The
former, because it does not justify the incapacity using the disqualified party’s religious opinion,
may form the basis of a civil incapacity. The latter may not, because it is a disqualification that
does not speak to the person’s fitness for the capacity, but rather, places the person in a state of
civil incapacity based on their religious opinions. Id. In Perry, our Court conducted no “overt-
acts” analysis. We asked one question: was the decision to disqualify the witness predicated on a
“natural incapacity” or a religiously motivated “civil incapacity” with respect to the inherent
occupational qualifications of a witness who wishes to testify in court. No distinction is to be
drawn here between natural rights and civil capacities.
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however—when the law is neutral as to religion—Article I, Section 16 is not violated. For the
first time, this Court held that, when a law is neutral as to religion, Article I, Section 16 is not
violated. 11 The protections contained in Article I, Section 16 extend to all Virginians, because
“so long as they keep within [the] pale” of the law, all are free to exercise their religion in this
Commonwealth. Id. at 642. This Court relied on an interpretation of Virginia’s Constitution that
placed “all religions on a footing of perfect equality; protecting all; imposing neither burdens nor
civil incapacities upon any; conferring privileges upon none.” Id. at 641.
An indirect burden on a person’s free exercise does not violate the Virginia Constitution
when it does not target religious belief. Cf. Braunfeld v. Brown, 366 U.S. 599, 605 (1961)
(holding that, where a Sunday law only inconvenienced members of the Orthodox Jewish faith
who believed it necessary to work on Sunday, “the statute at bar does not make unlawful any
religious practices of appellants; the Sunday law simply regulates a secular activity and, as
applied to appellants, operates so as to make the practice of their religious beliefs more
expensive. . . . And even these are not faced with as serious a choice as forsaking their religious
practices or subjecting themselves to criminal prosecution.”). “A law burdening religious
practice that is not neutral or not of general application must undergo the most rigorous of
scrutiny. . . a law restrictive of religious practice must advance ‘“interests of the highest order”’
and must be narrowly tailored in pursuit of those interests.” McDaniel v. Paty, 435 U.S. 618,
628 (1978) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972))).
11
This judicial interpretation finds echoes in the writing of John Locke, relied upon by
Jefferson and invoked by the majority. See, e.g., John Locke, A Letter Concerning Toleration
18, available at https://thefederalistpapers.org/wp-content/uploads/2012/12/John-Locke-
Concerning-Toleration.pdf (last accessed May 9, 2023) [hereinafter Letter Concerning
Toleration].
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We stated our position more directly in Remington v. Commonwealth, 262 Va. 333(2001). The question presented to our Court in Remington was whether, as a matter of law, the
jurors had been removed from the venire because of their religious beliefs. The circuit court
questioned the jurors, “[d]o you have any religious, philosophical, or moral beliefs which would
prevent or substantially impair your ability to convict a person of a crime which potentially
carried a death penalty?” The jurors answered that they did. This Court found the jurors’
removal did not violate Article I, Section 16 because “their responses demonstrated that their
personal objections to the death penalty would have substantially impaired or prevented them
from performing their duties as jurors.” Id. at 349. This Court did not draw a distinction
between whether this impairment stemmed from religious, moral, or political convictions.
Because the record showed that the incapacity did not derive from the religious beliefs as beliefs,
but rather from the fact that the beliefs manifested into an unwillingness to perform their duties
as jurors, it did not violate the Constitution. Id. We reached the same conclusion in Schmitt,
where a prospective juror advised the court that she had “moral, religious, or conscientious
objections to voting for the death penalty.” Schmitt v. Commonwealth, 262 Va. 127, 141 (2001).
Again, this Court made no distinction between whether this incapacity was derived from
ordinary or religious convictions. This is what we held in Perry to be a “natural incapacity,”
because the religious belief in question stood as a natural impediment to the proper execution of
the civil capacity in question. See id.This Court has also interpreted Article I, Section 16 in our line of Sunday-law cases,
where we “expresse[d] fully [our] views on the questions of Sunday observance, religious
liberty, a Christian state, [as well as] the constitutionality and construction of the [Sunday]
statute.” Crook v. Commonwealth, 147 Va. 593, 596-97 (1927) (citing Pirkey Bros., 134 Va. at
95
722). The Sunday laws were upheld under Article I, Section 16 because “[w]hile the provision
of the statute, therefore, cannot be enforced as a religious observance, the great moral force that
is back of it will make itself felt in its enforcement in conformity with the views of that force.”
Id.Article I, Section 16 has been historically interpreted by this Court to permit incidental
burdens on the religious practice of individuals so long as religious belief was not the target of
the legislation and it was applied “to protect all persons” for a secular purpose. See Rich v.
Commonwealth, 198 Va. 445, 449 (1956) (“Judge Burks, citing many authorities, pointed out
that the statute cannot be enforced as a religious observance; but that it is enforceable as a valid
exercise of the police power of the State, its purpose being to protect all persons from the
physical and moral debasement which comes from uninterrupted labor.”).
4. The General Assembly’s Legislative Interpretations
In addition to focusing on the original-public-meaning analysis of the 1971 Constitution
of Virginia and controlling precedent, the General Assembly’s legislative interpretations of
Article I, Section 16 also prove informative. “While not controlling, legislative interpretation of
[a] constitutional provision . . . is entitled to great weight.” City of Roanoke v. James W.
Michael’s Bakery Corp., 180 Va. 132, 151 (1942). “When the General Assembly acts in an area
in which one of its appellate courts already has spoken, it is presumed to know the law as the
court has stated it and to acquiesce therein.” Weathers v. Commonwealth, 262 Va. 803, 805
(2001). “[I]f the legislature intends to countermand such appellate decision it must do so
explicitly.” Id. “Legislative construction of a constitutional provision is entitled to
consideration, and if the construction be contemporaneous with adoption of the constitutional
provision, it is entitled to great weight.” Dean v. Paolicelli, 194 Va. 219, 227 (1952). As such,
96
“[l]ong acquiescence in such an announced construction so strengthens it that it should not be
changed unless plainly wrong.” Id.In 2016, when the General Assembly reaffirmed Jefferson’s Act, it did so without any
explicit countermand of any appellate decision that had been rendered on religious free exercise
in Virginia. See Code § 57-2. This served as legislative acquiescence to this Court’s
jurisprudence, described above, which has for centuries interpreted Article I, Section 16 to mean
that the State can moderate a person’s civil capacities where their religious convictions would
“substantially impair or prevent them” from performing their duties, and that “conscientious
religious belief” is “no excuse for an illegal act made criminal by the law of the land.” See
Remington, 262 Va. at 349; Kirk v. Commonwealth, 186 Va. 839, 845 (1947).
The General Assembly is also presumed to have knowledge of the Court of Appeals’
decisions on free exercise under Article I, Section 16 rendered prior to 2016. See Barson v.
Commonwealth, 284 Va. 67, 74 (2012); Weathers, 262 Va. at 805. The Court of Appeals applied
rational-basis review to religiously neutral laws challenged under Article I, Section 16 well
before the reaffirmation of Jefferson’s Act. See Roberts v. Roberts, 41 Va. App. 513, 523 (2003)
(“That statute is religiously neutral, does not substantially burden the free exercise of religion,
and rationally advances the legitimate state interest of protecting children.”); Horen v.
Commonwealth, 23 Va. App. 735, 743 (1997).
Our jurisprudence forbids this Court from overruling constitutional interpretations long
acquiesced in by the General Assembly unless they are plainly wrong. 12 Neutral laws have
12
Legislative acquiescence in these decisions, which previously interpreted Article I,
Section 16 to be less protective of free exercise of religion than VRFRA, is informative.
VRFRA says explicitly that:
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always been presumed constitutional under Article I, Section 16. If a claimant alleges and
proves that the government was hostile towards his religious free exercise or did not apply the
law neutrally to the claimant, the reviewing court should apply strict scrutiny. This test is
consistent with this Court’s prior precedent and has proved workable in Article I, Section 16
claims for hundreds of years. It should continue to be applied.
B. APPLICATION OF ARTICLE I, SECTION 16
The School Board essentially argues that Vlaming’s religious beliefs, to the extent that
they would not allow him to follow the anti-discrimination policy as enunciated by the School
Board and relied upon by Doe and Doe’s parents, substantially impaired his ability to perform
his duties as a French teacher. Under Remington and Perry, this policy is a valid use of the
state’s police power. Vlaming contends, however, that the School Board did not treat him or his
beliefs in a neutral manner.
Consistent with Article I, Section 16’s demand that the State remain neutral toward
religious opinion, “the government, if it is to respect the Constitution’s guarantee of free
exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens
and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of
religious beliefs and practices.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n,
138 S. Ct. 1719, 1731 (2018). A law or policy with no intent to discriminate based on religion
Nothing in this section shall be construed to . . . affect, interpret or
in any way address those portions of Article I, Section 16 of the
Constitution of Virginia, the Virginia Act for Religious Freedom
(§ 57-1 et seq.), and the First Amendment to the United States
Constitution that prohibit laws respecting the establishment of
religion.
Code § 57-2.02(C)(ii). Therefore, I will not consider the text of VRFRA in this analysis of
legislative interpretations of Article I, Section 16.
98
but with the sole objective of protecting minors from harassment is neutral. See Church of
Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993). Neutrality is rooted in the
objective of a law. Id. Factors relevant to a neutrality analysis include the historical background
of the decision under challenge, the specific series of events leading to the enactment or official
policy in question, and the legislative or administrative history, including contemporaneous
statements made by members of the decision-making body.” Id. at 540.
In the present case, the School Board’s policies on their face—as written and as
interpreted and communicated by the School Board—do not target employees based on religious
opinions. Any school employee, regardless of faith, is required to avoid discriminatory behavior
or harassment and is required to refer to transgender students using their preferred pronouns; it
does not matter whether the employee has a religious or secular objection to them. Enforcement
of the policy does not require an individualized assessment into an employee’s religion.
1. “Overt Acts” is Not an Appropriate Limiting Principle
The test the majority employs in evaluating Vlaming’s free exercise claim is an anomaly
in our Constitution’s constellation of fundamental rights. This Court applies strict scrutiny to
every other question involving constitutional rights. The limiting principle created by the
majority relates only to “overt acts against peace and good order,” and, in the process, creates
more ambiguity than clarity. It is a legal outlier.
There has been significant debate among jurists and legal scholars as to the true meaning
of the phrase, with some going so far as to argue that “overt acts against peace and good order”
encompasses all violations of the law. See City of Boerne v. Flores, 521 U.S. 507, 539 (1997)
(Scalia, J., concurring in part) (noting that “peace” and “order” appear to have historically meant
“obeying the laws”); Hamburger, Historical Perspective, supra, at, 918 (noting that many
99
eighteenth century lawyers believed that “every breach of law is against the peace” (quoting R v.
Lane, 6 Mod. 128, 87 Eng. Rep. 884 (Q.B. 1704))). The majority insists that this is not the
approach it is taking, but nevertheless, refuses to define the scope of “overt acts against peace
and good order” in Virginia.
The majority’s opinion seems to suggest that if this Court uses the term “compelling state
interest” repeatedly, Virginia adopts a strict scrutiny standard. While conjuring Sherbert is
alluring, Sherbert applies strict scrutiny and nothing more, despite the majority’s careful
selection of quotes from the case. Supra at 20-22. Justice Alito’s concurrence in Fulton v. City
of Philadelphia, 141 S. Ct. at 1890, succinctly observes that “the test distilled from Sherbert [is]
that a law that imposes a substantial burden on the exercise of religion must be narrowly tailored
to serve a compelling interest.” See also Stephen A. Siegel, The Origin of the Compelling State
Interest Test & Strict Scrutiny, 48 Am. J. Legal Hist. 355, 380 (2006) (“Sherbert was the first
clear, succinct, and complete statement of what constitutional lawyers have come to mean by the
phrase ‘strict scrutiny.’”); Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev.
1267, 1281 (2007). Rather than applying Sherbert, however, the majority reviews Vlaming’s
claims by asking whether his “overt acts” “invariably posed some substantial threat to public
safety, peace or order,” and whether the government could not defuse the threat or avoid the
contest altogether by “less restrictive means.” Supra at 23. This is not the analysis that Sherbert
requires. The majority’s test replaces the Commonwealth’s “compelling state interest” with a
new requirement that the plaintiff’s actions pose an invariable, substantial threat to public safety,
peace, or good order. Even if “overt acts” was the ember from which a strict scrutiny flame
originated, the majority sees the two standards as one and the same. These concepts are not
synonymous.
100
The majority elects to not define its limiting principle. Assuaging concerns that their
limiting principle might create ambiguity, the majority assures us that legal historians provide a
cohesive and workable interpretation. See supra at 19. The majority decrees that that phrase
encompasses “only a distinct subcategory of unlawful behavior,” although it declines to
elaborate. Supra at 19. Here, the public safety, peace, or order standard remains as nebulous as
compelling state interests are understood. It is also doubtful that the standard is compatible with
other areas of our modern constitutional jurisprudence. 13
13
Sir William Blackstone’s Commentaries on the Laws of England were accepted by the
Founders “as the most satisfactory exposition of the common law of England.” Schick v. United
States, 195 U.S. 65, 69 (1904). English common law was incorporated, in part, into our body of
law at the time of the 1776 Constitutional Convention. 1 St. George Tucker, Blackstone’s
Commentaries, Editor’s App. Note E at 432 (1803). Thus, Blackstone’s Commentaries offer
guidance in defining common law terms that the majority does not. According to Blackstone,
thirteen offenses constituted a violation against the public peace: (1) riotous assemblies of 12 or
more persons; (2) poaching; (3) anonymous threats; (4) damage or destruction of public locks,
sluices, or floodgates on a navigable river; (5) public brawling; (6) riots or unlawful assemblies
of 3 or more persons; (7) tumultuous petitioning; (8) forcible entry or detainer; (9) carrying
dangerous weapons; (10) spreading false news to provoke public disorder; (11) spreading false
prophecies; (12) incitements to breach of the peace; and (13) libel. Michael W. McConnell,
Freedom from Persecution or Protection of the Rights of Conscience?: A Critique of Justice
Scalia’s Historical Arguments in City of Boerne v. Flores, 39 Wm. & Mary L. Rev. 819, 834-37
(1998).
Not only are some of the offenses listed by Blackstone irrelevant to the free exercise of
religion, but some directly contradict our modern understanding of constitutional freedoms.
Taking for example “spreading false news to provoke public disorder,” the Supreme Court of the
United States has expressly held that false speech is constitutionally protected, United States v.
Alvarez, 567 U.S. 709 (2012), and prosecutions for incitement are difficult to maintain under
today’s First Amendment jurisprudence, see Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)
(holding that states may not forbid advocacy of disorder “except where such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or produce such action”).
Similarly, the majority notes that “trespass on private property” may be considered a
breach of public peace and safety because it interferes with the private rights of others. Supra at
20. However, Justice Brandeis’ concurrence in Whitney v. California, 274 U.S. 357, 377 (1927),
commented it would be “hardly conceivable” that the danger of trespass could ever be substantial
enough to justify the suppression of First Amendment rights. See also Marsh v. State of Ala.,
326 U.S. 501, 509 (1946) (“When we balance the Constitutional rights of owners of property
101
Until today, this Court used strict scrutiny to evaluate the most precious individual rights
guaranteed by our Commonwealth’s Constitution. For any fundamental right or suspect
classification, our precedent holds that the burden rests on the government to show its actions are
narrowly tailored to achieve a compelling interest. Mahan v. Nat’l Conservative Political Action
Comm., 227 Va. 330, 336 (1984). Article I, Section 12, which ensures freedom of speech, press,
petition, and assembly, mandates strict scrutiny review. Elliott v. Commonwealth, 267 Va. 464,
473-74 (2004); Adams Outdoor Advert. V. City of Newport News, 236 Va. 370, 381-82 (1988).
Article I, Section 11 mandates strict scrutiny review to protect Virginians from state actions that
draw impermissible classifications based on race, sex, or religion. Wilkins v. West, 264 Va. 447,
468 (2002). Strict scrutiny applies if a government action affects a parent’s fundamental right to
maintain a relationship with their child. F.E. v. G.F.M., 35 Va. App. 648, 664 (2001). And strict
scrutiny applies if a statute infringes on the right to a jury trial, the only right which our
Constitution calls “sacred.” Willis v. Mullett, 263 Va. 653, 658 (2002); Va. Const. art. I, § 11.
In fact, the only other time this Court used something close to the majority’s peace and
good order standard in modern jurisprudence was during the Civil Rights Era. This “peace, good
order and the rights of others” limiting principle shares a troubling history, too. This Court has
used the phrase twice. Both cases involved a locality’s restriction on free assembly and speech
during civil rights protests. See Thomas v. City of Danville, 207 Va. 656 (1967); York v. City of
Danville, 207 Va. 665 (1967). While this Court held that some aspects of an injunctive order
preventing civil rights demonstrations were unconstitutional, it emphasized that the First
Amendment rights of its citizens in both instances were required to be “exercised in
against those of the people to enjoy freedom of press and religion, as we must here, we remain
mindful of the fact that the latter occupy a preferred position.”).
102
subordination to the general comfort and convenience” of the rights of others. Thomas, 207 Va.
at 661 (quoting York, 207 Va. at 669). This precedent suggests that the test actually provides
weaker protection than the standard applied to our constitutional rights to today.
To see overt acts against peace and good order as the only compelling interests the
Commonwealth possesses ignores the interests of this Commonwealth that have been protected
by this Court, enacted by the General Assembly, and requested by its citizens. This Court
unanimously held two years ago that “there is little doubt that relevant circumstances, conditions,
and public policies have changed since 1890.” Taylor v. Northam, 300 Va. 230, 256 (2021).
Certainly, we can recognize that circumstances, conditions, and public policies in which the
Commonwealth has an interest have changed since Virginia’s founding.
In applying strict scrutiny, the Supreme Court of the United States has recognized that
states may have compelling interests in areas beyond public safety, peace, and order. For
instance, states have compelling interests in protecting the psychological wellbeing of minors
and in maintaining labor laws that protect the most vulnerable, even if those labor laws
incidentally burden religious expression. See Sable Communications of California, Inc. v.
F.C.C., 492 U.S. 115, 126 (1989); Prince v. Massachusetts, 321 U.S. 158 (1944). Perhaps most
relevant here, the government has not just a compelling but a “fundamental, overriding interest”
in eradicating discrimination in education. Bob Jones Univ. v. United States, 461 U.S. 574, 604
(1983). Until now, it was indisputable that the psychological wellbeing of children, basic labor
standards, and eliminating discrimination were interests of paramount importance for our
government. What is unclear now is whether these recognized interests, none of which directly
implicate public safety, can ever survive a “substantially burdening public safety, peace, or
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order” test, even when the means provide “the most exact connection” to the government
objective. Gratz v. Bollinger, 539 U.S. 244, 270 (2003).
The majority’s new test puts Vlaming’s right to free exercise in a class by itself. The
practical effect is to presumably elevate Vlaming’s rights above all other rights in our
Constitution. Vlaming’s right to be free from policies that allegedly burden his religious
exercise would be protected to a higher standard than his right to speak his mind about secular
matters, to be free from racial or gender discrimination, to see his children, or to receive due
process in our courts. This result cannot be what our Founders intended.
A particularly disturbing consequence of the majority’s super scrutiny standard is that it
imposes a different degree of scrutiny for state policies that affect religious expression than for
those which burden the expression of ordinary ideas not rooted in religious belief. If Vlaming
professed no religion, and his objections to Doe’s gender identity stemmed from his
understanding of biology, there would be no question that this Court would use strict scrutiny to
evaluate whether Vlaming could speak his views. Because Vlaming’s justifications are rooted in
religion, however, the majority presumably gives his beliefs greater deference in the eyes of the
law.
This result couldn’t be further from the intention of our Founders. In creating a hierarchy
of legal protections for ideas and expression, wholly dependent on their epistemological source,
the majority tears at the very values that underpin Article I, Section 16. Jefferson and Madison
both believed in a liberty of conscience that placed religious and secular thought on equal ground
in the eyes of the state. In Madison’s own words, “equality” in belief ought to be the basis for
every law in Virginia. Memorial and Remonstrance against Religious Assessments, in 8 The
Papers of James Madison, Congressional Series 295, 299. And “[w]hilst we assert for ourselves
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a freedom to embrace, to profess and to observe the Religion which we believe to be of divine
origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the
evidence which has convinced us.” Id. Jefferson was even more skeptical of a state-imposed
pyramid of thought. To prevent governmental and clerical abuse, Jefferson argued it necessary
that “reason and free enquiry” live side-by-side with religious teachings as total intellectual
peers, and the interaction between the two would in turn drive scientific and spiritual progress in
the Commonwealth. See Thomas Jefferson, Notes on the State of Virginia, 164-70 (Lilly and
Wait ed. 1832).
Even more telling is the fact that at the time this country was founded, a majority of states
had free exercise provisions that included a similar “peace and good order” carveout. 14 Of these
states, none of them have gone as far as the majority in substituting “compelling state interest”
for “disturb the good order, peace or safety.” Three of these states, Delaware, Rhode Island, and
South Carolina, never assigned independent meaning to the “peace and good order” carveouts in
their original constitutions. However, Maryland, Massachusetts, New Hampshire, and New
York have fully examined the breadth of their respective free exercise provisions and none of
them have found the carveouts to expand such protections to the extent that our majority does. 15
Virginia now stands alone in adopting super scrutiny.
14
See Del. Declaration of Rights §§ 2-3 (1776); Md. Const. Decl. of Rts. art. 33 (1776);
Mass. Const. Pt. 1, art. II (1780); N.H. Const. Pt. 1, art. 5 (1783); N.Y. Const., Art. XXXVIII
(1777); Charter of Rhode Island and Providence Plantations (July 15, 1663); S. C. Const., Art.
VIII, § 1 (1790). Justice Powell’s concurrence provides further explanation of this point. See
supra at 76-77 n.1.
15
Maryland holds that the free exercise rights guaranteed by its state constitution are
coextensive with those guaranteed by the First Amendment and has expressly adopted the United
States Supreme Court’s reasoning in Smith. Doe v. Catholic Relief Services, 300 A.3d 116, 131
n.15 (Md. 2023) (“This Court has treated Article 36 as embodying the protections guaranteed by
the Free Exercise Clause of the First Amendment.”). New York takes a similar approach,
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Finally, the majority’s super scrutiny effectively renders VRFRA a dead letter. VRFRA,
even if stronger in its language and evidentiary standard, largely mirrors its federal counterpart in
mandating Sherbert’s strict scrutiny analysis. Like Sherbert, VRFRA tasks our courts with
evaluating whether a burden to free exercise is the least restrictive means of furthering a
compelling state interest. Code § 57-2.02(B). Notable here is the General Assembly’s wholesale
endorsement of “compelling interests” as understood by our courts in 2007 when the statute was
effectuated, accepting without objection those well-recognized compelling interests, articulated
above, which may not directly implicate concerns of public safety, peace, and order. See
Weathers, 262 Va. at 805. Now, in one fell swoop, the majority’s super scrutiny subsumes the
General Assembly’s directives, rendering VRFRA suddenly irrelevant before this Court even had
a chance to interpret it.
2. Applying Sherbert-Yoder
While my concurrence endorses Virginia’s neutrality standard as the basis for my
analysis, the result would still be the same when evaluating this case using Sherbert v. Verner
and Wisconsin v. Yoder. In Sherbert, the Supreme Court of the United States applied strict
scrutiny in determining whether government regulations are permissible in the face of free
exercise challenges. Under this approach, courts ask (1) whether the law imposed a burden on
the ability to freely exercise religion; and (2) if so, whether the government has a compelling
holding that Smith’s neutral, generally applicable law approach provides the starting point for
analyzing free exercise claims under its state constitution, while, at the same time, recognizing
that exceptions to this approach exist where it is shown that the law unreasonably interferes with
an individual’s right to practice their religion. Catholic Charities of Diocese of Albany v. Serio,
859 N.E.2d 459, 467 (2006). Massachusetts and New Hampshire, on the other hand, have
expressly rejected the reasoning of Smith, choosing instead to adopt the compelling state interest
balancing test the United States Supreme Court described in Sherbert v. Verner, 374 U.S. 398(1963).
106
interest in the enforcement of its law that is narrowly tailored enough to justify the burden on
free exercise rights. 374 U.S. at 403, 406.
Less than a decade later, (and after the adoption of Virginia’s 1971 Constitution) in
Wisconsin v. Yoder, 406 U.S. 205 (1972), 16 the Supreme Court built on Sherbert’s test, providing
that a “regulation neutral on its face may, in its application, nonetheless offend the constitutional
requirement for government neutrality if it unduly burdens the free exercise of religion.” Id. at
220. The Yoder test required a court to ask whether “there is a state interest of sufficient
magnitude to override the interest claiming protection under the Free Exercise Clause.” Id. at
214. In doing so, the Supreme Court emphasized the importance of “preserving doctrinal
flexibility and recognizing the need for a sensible and realistic application of the Religion
Clauses.” Id. at 220-21.
When applying Sherbert-Yoder to the facts of this case, the result is the same as under
Virginia’s neutrality-oriented analysis. In analyzing the appropriate considerations under Article
I, Section 16, using both Virginia’s neutrality principle and the Sherbert-Yoder paradigm,
Vlaming has sufficiently plead a cause of action to survive demurrer. An important component
of this analysis is who the regulation seeks to protect. Here, the regulations do not seek to
protect Vlaming, but Doe. Accordingly, I feel it necessary to review appropriate considerations
for a court under my interpretation of Article I, Section 16.
16
The issue before the Supreme Court was whether Wisconsin’s compulsory school
attendance law, which required a child to attend school until the age of 16, violated Amish
religious beliefs that high school attendance was contrary to their religion and way of life. Id. at
209. The Supreme Court held that the free exercise clause prohibited Wisconsin from
compelling Amish children to attend high school until the age of 16. Id. at 234.
107
C. APPROPRIATE CONSIDERATIONS UNDER ARTICLE I, SECTION 16 17
My analysis above shows that the test articulated by the majority defies both the plain
meaning and original public meaning of Article I, Section 16 of the 1971 Constitution of
Virginia. The threshold inquiry in any as-applied Section 16 claim should be whether the law in
question has been neutrally applied.
In this case, I accept that Vlaming alleged facts sufficient for his claim that the School
Board transgressed the as-applied neutrality standard by proceeding “in a manner intolerant of
religious beliefs . . . because of their religious nature.” Fulton, 141 S. Ct. at 1878. However, I
do not have to accept the legal conclusion that Vlaming reaches in alleging that the School Board
acted in a non-neutral manner. Assuming that Vlaming could prove his claim that the policy was
not religiously neutral, the School Board’s “actions [must be] examined under the strictest
scrutiny.” See id. at 1881. In such an instance, “[t]he question, then, is not whether the [School
Board] has a compelling interest in enforcing its non-discrimination policies generally, but
whether it has such an interest in denying an exception to [Vlaming].” Id. And while “[a]
government policy can survive strict scrutiny only if it advances ‘interests of the highest order’
and is narrowly tailored to achieve those interests[,]” the analysis “inevitably call[s] for a
17
The majority in footnote 44 states, in part: “The dissent includes 11 pages of
“appropriate considerations” for the circuit court to apply on remand.” The majority correctly
notes that a dissent should not attempt to guide the trial court on remand. So, the complaint
confuses me as no such suggestion has been made. Like any dissent, I simply point out what I
believe the appropriate analysis should have been and then I follow that analysis to its
conclusion. By doing this the object of a dissent is accomplished: to record my disagreement
with the majority’s analysis and findings and to preserve for posterity the argument for future
consideration.
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delicate balancing of important but conflicting interests.” Id.; Yoder, 406 U.S. at 237 (White, J.,
concurring). 18
A proper analysis of the nature and scope of the School Board’s interests in this case
must necessarily consider the nature and scope of the rights of Doe because it is his underlying
interests that, at bottom, the School Board is entrusted to serve and for whose protection the anti-
discrimination policy was adopted. The potential for religious liberty to clash with other rights
has been recognized for centuries. See, e.g., Watson v. Jones, 80 U.S. 679, 728 (1871) (“In this
country the full and free right to entertain any religious belief . . . which does not infringe
personal rights, is conceded to all. The law knows no heresy, and is committed to the support of
no dogma, the establishment of no sect.”) (emphasis added); see generally United States
Commission on Civil Rights, Peaceful Coexistence: Reconciling Nondiscrimination Principles
with Civil Liberties 29 (2016) (“Religious liberty was never intended to give one religion
dominion over other religions, or a veto power over the civil rights and civil liberties of others.”).
Free exercise challenges must yield to the application of neutral principles of law protecting non-
religious rights with the religious rights of others.
By considering the rights of Doe as an integral part of its analysis of the nature and scope
of the School Board’s interest in enforcing its anti-discrimination policy, the analysis paints the
most accurate picture of the factors the School Board must consider when making enforcement
18
This balancing is especially important when considering the historical use of religious
invocations to seek exemptions from other anti-discrimination laws and to oppose the enactment
of such laws. See, e.g., Bob Jones Univ., 461 U.S. at 583 (noting the university’s “racially
discriminatory admissions policy based upon its interpretation of the Bible”); Dole v.
Shenandoah Baptist Church, 899 F.2d 1389, 1397-99 (4th Cir. 1990) (holding employer’s free
exercise rights did not exempt it from complying with the Fair Labor Standards Act’s equal pay
requirement).
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decisions. But this analysis cannot be limited to the conception of rights as they were understood
two centuries ago.
In Loving v. Virginia, 206 Va. 924 (1966) (Loving I), this very Court upheld the
convictions of a white man and black woman for the crime of marrying each other and then
residing within Virginia. The trial judge expressed the following opinion in support of the
convictions:
Almighty God created the races . . . and he placed them on separate
continents. And but for the interference with his arrangement there
would be no cause for such marriages. The fact that he separated
the races shows that he did not intend for the races to mix.
Loving v. Virginia, 388 U.S. 1, 3 (1967) (Loving II) (quoting the trial judge’s opinion).
This Court in Loving I found “no sound judicial reason” to overturn its previous decision
upholding miscegenation statutes, refusing to consider “a number of texts dealing with the
sociological, biological and anthropological aspects of the question of interracial marriages”
because to do so “would be judicial legislation in the rawest sense of that term.” Loving I, 206
Va. at 929. The Supreme Court of the United States ultimately corrected this Court’s mistake,
but the damage was done.
As uncomfortable as it is to relive this repugnant history, it is necessary to emphasize in
the sharpest terms the importance of viewing religious rights with the rights of others in mind.
Our Founders, though failing in their time to recognize the rights of marginalized or enslaved
people, still had the foresight to understand the ever-evolving nature of humankind. As Jefferson
wrote:
[L]aws and institutions must go hand in hand with the progress of
the human mind. As that becomes more developed, more
enlightened, as new discoveries are made, new truths disclosed,
and manners and opinions change with the change of
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circumstances, institutions must advance also, and keep pace with
the times.
2 Howard, supra at 1165 (quoting Writings of Thomas Jefferson (Ford ed.), X, 4243). It is with
the guidance of progress in mind that women, persons of color, and persons of non-heterosexual
orientation were given the very same rights as our Founders. In line with Jefferson’s entreaty to
modernity, our General Assembly amended the Virginia Human Rights Act in 2020,
affirmatively stating that “[i]t is the policy of this Commonwealth to [s]afeguard all individuals
within the Commonwealth from unlawful discrimination because of . . . gender identity.” See
Code § 2.2-3900. This legislation was created to . . . “[p]reserve the public safety, health, and
general welfare . . . and to further the interests, rights and privileges of individuals within the
Commonwealth.” Therefore, to properly analyze the School Board’s compelling interest in
enforcing its anti-discrimination policy, the rights of Doe are indispensable.
1. The School Board’s Interests in its Anti-Discrimination and Anti-Harassment Policies
The School Board argues that it has a compelling interest in enforcing its
anti-discrimination and anti-harassment policies for the protection of transgender students. This
Court has recognized that “the protection of children from harm, whether moral, emotional,
mental, or physical, is a valid and compelling state interest.” Knox v. Lynchburg Div. of Soc.
Serv., 223 Va. 213, 223 (1982) (citing Stanley v. Illinois, 405 U.S. 645, 652 (1972)). “It is
evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and
psychological well-being of a minor’ is ‘compelling.’” New York v. Ferber, 458 U.S. 747,
756-57 (1982) (quoting Globe Newspaper Co. v. Superior Ct., 457 U.S. 595, 607 (1982)); see
also Yoder, 406 U.S. at 230 (recognizing the relevance of the child’s interests when noting that it
was not a case “in which any harm to the physical or mental health of the child or to the public
safety, peace, order, or welfare has been demonstrated or may be properly inferred”). “A
111
democratic society rests, for its continuance, upon the healthy, well-rounded- growth of young
people into full maturity as citizens.” Ferber, 458 U.S. at 757. “Accordingly, we have sustained
legislation aimed at protecting the physical and emotional well-being of youth even when the
laws have operated in the sensitive area of constitutionally protected rights.” Id.
In addition to their “compelling interest in protecting the physical and psychological
well-being of minors,” school districts can have a “compelling state interest in protecting
transgender students from discrimination.” Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897
F.3d 518, 528-29 (3d Cir. 2018). “When transgender students face discrimination in schools, the
risk to their wellbeing cannot be overstated.” Id. at 529. 19
To promote this interest, the School Board enacted anti-discrimination and
anti-harassment regulations. Anti-discrimination policies “serve[] compelling state interests of
the highest order,” as they ensure “society the benefits of wide participation in political,
economic, and cultural life.” Roberts v. U.S. Jaycees, 468 U.S. 609, 624-25 (1984). The School
Board enacted and interpreted its policies to comply with federal anti-discrimination laws such
as Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”), which
prohibit discrimination on the basis of sex. See Kluge v. Brownsburg Cmty. Sch. Corp., 548 F.
Supp. 3d 814, 846 (S.D. Ind. 2021) (Kluge II) (“continuing to allow [a teacher] an
accommodation that resulted in complaints that transgender students felt targeted and
dehumanized could potentially have subjected [the school] to a Title IX discrimination lawsuit
brought by a transgender student”); Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of
19
“[T]here is no doubt that transgender individuals historically have been subjected to
discrimination on the basis of their gender identity, including high rates of violence and
discrimination in education, employment, housing, and healthcare access.” Grimm v. Gloucester
Cnty. Sch. Bd., 302 F. Supp. 3d 730, 749 (E.D. Va. 2018) (“Grimm I”) (collecting cases).
112
Educ., 208 F. Supp. 3d 850, 870-71 (S.D. Ohio 2016) (concluding a transgender student “forced
to use a separate bathroom and otherwise not [be] treated as a girl” was likely to succeed under
Title IX); but see Meriwether v. Hartop, 992 F.3d 492, 511 (6th Cir. 2021) (concluding in the
university context that a professor’s refusal to use a transgender person’s pronouns did not
implicate the university’s interest in complying with Title IX). 20
Moreover, the School Board, by and through the powers granted to it by the General
Assembly, has an interest in complying with its constitutional obligation “to ensure that an
educational program of high quality is established and continually maintained.” Va. Const.
art. VIII, § 1. “[E]ducation is perhaps the most important function of state and local
governments . . . [and] is the very foundation of good citizenship.” Brown v. Bd. of Educ. of
Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 493 (1954). “[I]t is doubtful that any child may
reasonably be expected to succeed in life if he is denied the opportunity of an education.” Id.Accordingly, children of school age in Virginia are constitutionally compelled to attend
secondary school. See Va. Const. art. VIII, § 3; Code § 22.1254. Public school teachers play an
integral role in their development as “role models” who impart “essential lessons of civil, mature
conduct.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986). It is without question
that a School Board’s ability to provide a high-quality education, and a student’s ability to
receive one, are hampered when that student faces discrimination and harassment perpetuated or
sanctioned by the school or its agents.
20
In Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1741 (2020), the U.S. Supreme
Court held that under Title VII discrimination against a person for being transgender is
discrimination “based on sex.” Though Bostock’s applicability to Title IX is contested, it has
been used by courts to guide “evaluation of claims under Title IX.” Grimm v. Gloucester Cnty.
Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020) (Grimm II).
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2. Doe’s Personal Identity and Educational Interests
The majority appears indifferent to whether Vlaming’s actions in this case caused harm
to Doe, seemingly viewing the question as either irrelevant to the legal analysis or so
inconsequential as to not warrant a rigorous examination. Like surplusage. The potential harm
caused by Vlaming’s actions, however, is central to Vlaming’s free exercise claim and thus it is
necessary to articulate what that harm could be.
Doe’s personhood and educational interests are relevant to the application of strict
scrutiny because they form the object of the School Board’s compelling interest in enforcing its
anti-discrimination policy. Doe unquestionably has an interest in his own individual liberty and
self-determination. See Va. Const. art I, § 1 (“That all men are by nature equally free and
independent and have certain inherent rights . . . ; namely, the enjoyment of life and liberty, with
the means of acquiring and possessing property, and pursuing and obtaining happiness and
safety.”); see also Obergefell v. Hodges, 576 U.S. 644, 663 (2015) (citing Eisenstadt v. Baird,
405 U.S. 438, 453 (1972), and Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965)) (“[T]hese
liberties extend to certain personal choices central to individual dignity and autonomy, including
intimate choices that define personal identity and beliefs.”). 21 Within the public school setting,
21
In Grimm II, 972 F.3d at 609-10, a case which involved the assignment of in-school
bathroom usage to a transgender student’s biological sex, the United States Court of Appeals for
the Fourth Circuit described how the student’s gender identity was inseverable from his
conception of himself as a person:
Second, the Board contends that even if the policy necessarily
involves sex-based discrimination, it cannot violate equal
protection because Grimm is not similarly situated to cisgender
boys. Instead, it asks us to compare Grimm’s treatment under the
policy to the treatment of students it would consider to be
“biological” girls, because Grimm’s “choice of gender identity did
not cause biological changes in his body, and Grimm remain[ed]
biologically female.” But embedded in the Board’s framing is its
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eradicating discrimination and harassment ensures that public school systems foster
environments conducive to such individual self-realization.
Furthermore, the School Board had legitimate reason to believe that its pronoun policy
was necessary to protect the students in its care. In a study conducted in 2015, “77% of
respondents who were known or perceived as transgender in their K-12 schools reported
harassment by students, teachers, or staff.” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586,
597 (4th Cir. 2020) (“Grimm II”) (referencing Br. of Amici Curiae Sch. Adm’rs from Twenty-
Nine States & D.C. in Supp. of Pl. Appellee 6 [hereinafter “Br. of School Administrator
Amici”]). Similarly, a 2020 survey conducted by the Centers for Disease Control revealed that
27 percent of transgender students surveyed felt unsafe at school and about 35 percent of
transgender students were bullied at school, and 35 percent had attempted suicide in the past 12
months. Michelle M. Johns et al., Transgender Identity and Experiences of Violence
Victimization, Substance Use, Suicide Risk, and Sexual Risk Behaviors Among High School
Students--19 States and Large Urban School Districts, Morbidity and Mortality Weekly Rep. 67,
own bias: it believes that Grimm’s gender identity is a choice, and
it privileges sex-assigned-at-birth over Grimm’s medically
confirmed, persistent and consistent gender identity. The policy
itself “recognizes that some students question their gender
identities,” and states that such students have “gender identity
issues.” Grimm, however, did not question his gender identity at
all; he knew he was a boy. The overwhelming thrust of everything
in the record—from Grimm’s declaration, to his treatment letter, to
the amicus briefs—is that Grimm was similarly situated to other
boys, but was excluded from using the boys restroom facilities
based on his sex-assigned-at-birth. Adopting the Board’s framing
of Grimm’s equal protection claim here would only vindicate the
Board’s own misconceptions, which themselves reflect
“stereotypic notions.”
(Internal citations omitted) (alteration in original).
115
69-70 (Jan. 25, 2019). This harassment has detrimental educational consequences, as “students
who experienced greater harassment had significantly lower grade point averages.” Grimm II,
972 F.3d at 597 (referencing Br. of School Administrator Amici 11).
Pronoun usage is connected to this harm, as “[f]ailure to use a student’s chosen name and
pronouns can increase self-scrutiny, which can cause students to internalize the homophobia or
transphobia targeted at them.” Caitlin Ring Carlson, Emma Hansen, Pronoun Policies in Public
Schools: The Case Against First Amendment Exceptions for K-12 Teachers, 32 Geo. Mason U.
C.R.L.J. 261, 295 (2022) (citing Lauren Munro, Robb Travers & Michael R. Woodford,
Overlooked and Invisible: Everyday Experiences of Microaggressions for LGBTQ Adolescents,
66 J. of Homosexuality 1439, 1446 (2019)). However, “teachers addressing students by their
preferred name led to students’ improved mental health, including less depression and decreased
suicidal thoughts or behavior.” Id. (citing Amanda M. Pollitt, Salvatore Loverno & Stephen T.
Russell, Predictors and Mental Health Benefits of Chosen Name Use Among Transgender Youth,
53 Youth & Soc’y 320, 330-36 (2019)); Grimm II, 972 F.3d at 597 (noting that “transgender
students have better mental health outcomes when their gender identity is affirmed”); Boyertown,
897 F.3d at 523 (noting that “[s]ocial gender transition can help alleviate gender dysphoria”).
In the recently decided case of Kluge v. Brownsburg Community School Corp., 64 F.4th
861 (7th Cir. 2023) (Kluge III), the Seventh Circuit considered whether a teacher’s use of
students’ last names only to avoid using transgender students’ names was a reasonable
accommodation under Title VII that the school was required to accept. The answer was an
emphatic no. Id. at 891. Under the standard articulated by that court, “[a] practice that
indisputably cause[s] emotional harm to students and disruptions to the learning environment is
an undue hardship to a school as a matter of law.” Id. at 886. The school received various
116
“reports and complaints about the harms caused by Kluge’s last names-only practice,” with one
student reporting “that the practice made the transgender students stand out, and that he and
others in the school felt bad for the transgender students.” Id. at 885. In light of this evidence,
the Seventh Circuit held that the proposed accommodation imposed an undue hardship on the
school, reasoning that “no reasonable jury could conclude that a practice that emotionally harms
students and disrupts the learning environment is only a slight burden to a school.” Id. at 891. 22
Though Kluge III concerns claims under Title VII, which Vlaming has not asserted here,
its facts provide a demonstrative example of how a teacher’s refusal to use transgender students’
preferred pronouns can cause emotional harm to students and disrupt the learning environment.
Indeed, “Kluge himself conceded that the school had a legitimate interest in the mental health of
its students, even though learning is the primary purpose for the existence of the school.” Id. at
889. Further, other courts have observed that the stigma resulting from differential treatment
because of an individual’s transgender identity can result in harm. See Grimm II, 972 F.3d at
61718 (concluding that the stigmatization of a transgender student being forced to use a separate
restroom, which results in emotional and dignitary harm, is cognizable under Title IX); see also
22
The court in Kluge III applied the meaning of “undue hardship” as it had previously
been interpreted by many courts analyzing religious accommodation claims under Title VII,
which was that an employer was not required “to bear more than a de minimis cost” in
accommodating an employee’s religious practice. Id. at 881 (quoting Trans World Airlines, Inc.
v. Hardison, 432 U.S. 63, 84 (1977) (emphasis in original)). However, in Groff v. DeJoy, 600
U.S. ___, slip op. at 4 (2023), the U.S. Supreme Court clarified the contours of the Hardison
decision from which the “de minimis” language originated. It provided that Hardison could not
“be reduced to that one phrase,” noting that “Hardison referred repeatedly to ‘substantial’
burdens.” Id. at 15. It therefore understood “Hardison to mean that ‘undue hardship’ is shown
when a burden is substantial in the overall context of an employer’s business,” describing the
inquiry as “fact-specific.” Id. at 15-16. Irrespective of whether the “de minimis” or
“substantial” standard is applied in Kluge III, the analogous facts of the case help inform the
nature of the inquiry in Vlaming’s case.
117
Boyertown, 897 F.3d at 530 (stating that requiring transgender students to use individual
bathrooms “would very publicly brand all transgender students with a scarlet ‘T’”).
In Vlaming’s case, in recognition of Virginia’s fundamental commitment to high quality
education and child development, an inquiry into the potential harm caused to Doe and the
disruption to the learning environment is unmistakably relevant. Vlaming’s Complaint
acknowledges that Doe withdrew from the class in response to Vlaming’s conduct. This
indicates that Doe’s educational performance was inhibited by Vlaming’s behavior, but the facts
as they exist before us are insufficient to properly weigh the harm to Doe without the benefit of a
developed record. Accordingly, I must concur with the majority that Vlaming, with the barest of
records, has alleged sufficient facts to survive demurrer. However, I come to this conclusion
after deploying a strict scrutiny test, and not a form of super scrutiny that would constrict the
School Board’s interests and fail to take Doe’s rights into account.
II. VIRGINIA’S RELIGIOUS FREEDOM RESTORATION ACT
Unlike Article I, Section 16, which we have interpreted many times over the centuries,
VRFRA has never been interpreted by an appellate court in Virginia.
The majority’s dicta regarding the “essentiality” requirement in VRFRA—and the
heightened “clear and convincing” standard of proof—may or may not be true with respect to
VRFRA’s federal counterpart, but they are unnecessary to resolve Vlaming’s VRFRA claim as it
stands before us. This is because the only element of Vlaming’s VRFRA claim disputed in this
litigation is whether the anti-discrimination policy was the “least restrictive means” by which the
School Board could further its compelling interests in nondiscrimination and a safe educational
environment.
118
Vlaming’s complaint alleges that his religious free exercise was substantially burdened
by the anti-discrimination policy as the anti-discrimination policy forced him “to choose between
fidelity to religious belief and employment.” See Ballweg v. Crowder Contracting Co., 247 Va.
205, 213 (1994) (internal quotation marks omitted). Accepting as true the well-pleaded
allegations in the Complaint, as we must at the demurrer stage, I concur with the majority that
Vlaming has made a prima facie free-exercise claim under VRFRA. Vlaming alleges that the
School Board forced him to choose between employment and fidelity to his religious beliefs. 23
III. FREEDOM OF SPEECH
Vlaming failed to state a cause of action for his free speech claims. This is not, as the
majority frames it, a case about compelling adherence to a particular “ideology.” It is about a
public school teacher refusing to follow the rules applicable to all of the educators in the school.
The School Board enacted reasonable directives as an expression of its will that students would
be treated with dignity and respect by school employees. The majority’s characterization of
Vlaming’s on-the-job speech is not sensible. The manner in which Vlaming addressed Doe was
both curricular and part of Vlaming’s official duties as a French teacher. Even if this were not
23
Mere opinions must be distinguished from “beliefs rooted in religion,” and making this
determination “is more often than not a difficult and delicate task.” Thomas v. Rev. Bd. of Ind.
Emp. Sec. Div., 450 U.S. 707, 713-14 (1981). Courts here serve a “narrow function” which
requires them to determine whether the belief is the result of “an honest conviction.” Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014) (quoting Thomas, 450 U.S. at 716). The
sincerity of Vlaming’s religious belief “is a question of fact that is generally not appropriate for a
court to determine at summary judgment.” Kluge II, 548 F. Supp. 3d 841. The substantiality of
the burden, on the other hand, is a matter of law. See Burwell, 573 U.S. at 760 (Ginsburg, J.
dissenting) (noting the importance of “the distinction between the sincerity of a challenger’s
religious belief and the substantiality of the burden” imposed). Accordingly, I provide no
opinion on the sincerity of Vlaming’s belief, and my conclusion that Vlaming has stated a cause
of action is limited to the face of the Complaint. On remand, it will be appropriate for the circuit
court to take evidence on the nature of Vlaming’s religious beliefs, as it is relevant to
determining the degree to which they were burdened by the School Board’s enforcement of its
anti-discrimination and anti-harassment policies.
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the case, Vlaming’s speech has a strong enough nexus to Vlaming’s duties as a public school
teacher to ensure that he was not speaking as a private citizen on a matter of public concern,
putting his speech squarely within the purview of speech the School Board could legally
regulate. Therefore, I respectfully dissent from Part II.C of the majority’s opinion.
We have never construed Article I, Section 12 of the Constitution of Virginia more
broadly than the First Amendment and have unambiguously stated that it “is coextensive with the
free speech provisions of the federal First Amendment.” Elliott, 267 Va. at 473-74.
Accordingly, federal precedent guides my analysis of Vlaming’s free speech claims.
A. VLAMING WAS ENGAGED IN CURRICULAR SPEECH
The nature of the speech at issue is dispositive in this case. The speech here is not a
matter of public concern because it is curricular, and, even if it were not curricular, the result is
the same. Whether speech is curricular “is a question of law for the court.” Lee v. York Cnty.
Sch. Div., 484 F.3d 687, 697 (4th Cir. 2007). When a teacher’s speech is curricular, it does not
constitute speech on a matter of public concern, and it is not protected by the First Amendment.
See Boring v. Buncombe Cnty. Bd. of Educ., 136 F.3d 364, 368 (4th Cir. 1998). The majority
takes an overly restrictive view of the matter, concluding that speech is only curricular if it
relates directly to the specific subject being taught. Supra at 55-56. First Amendment
jurisprudence indicates that curricular speech is broader in scope and “encompasses a wide range
of types of communication.” See Lee, 484 F.3d at 692 (internal quotation omitted). Curricular
speech touches upon “school-sponsored publications, theatrical productions, and other
expressive activities that students, parents, and members of the public might reasonably perceive
to bear the imprimatur of the school.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271
(1988); see also Boring, 136 F.3d at 368 (applying Kuhlmeier to determine whether speech is
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curricular, reasoning that if speech is curricular in nature, it does not constitute speech on a
matter of public concern). Classroom speech can impart particular knowledge if its purpose is to
convey a specific message or information to students; speech does not need to relate to
instruction in a particular subject in order to be considered curricular speech, as information on
social or moral values to which the teacher believes the students should learn or be exposed is
also curricular speech. Lee, 484 F.3d at 699.
While I agree with the majority that constitutional free speech protections are not limited
to students or to university professors, the law treats the curricular speech of college and
university faculty differently from that of primary and secondary school teachers. See Grutter v.
Bollinger, 539 U.S. 306, 329 (2003). While “[t]he Supreme Court [of the United States] has
long recognized that ‘universities occupy a special niche in our constitutional tradition,’” public
primary and secondary school teachers, by contrast, are hired to teach the curriculum developed
by the politically accountable branches of state and local government. See id.; Sweezy v. New
Hampshire, 354 U.S. 234, 249-55 (1957); Keyishian v. Bd. of Regents of Univ. of State of N.Y.,
385 U.S. 589, 603 (1967) (recognizing that a university “classroom is peculiarly the
‘marketplace of ideas’”).
Primary and secondary school teachers are not given the freedom to teach whatever they
personally believe. Unlike university students, primary and secondary school pupils are captive
audiences who generally lack the intellectual sophistication necessary to engage with and
scrutinize the views of their instructors. Mayer v. Monroe Cnty. Comm. Sch. Corp., 474 F.3d
477, 479-80 (7th Cir. 2007). When disagreements about what should be taught in public school
classrooms arise, they generally are better resolved by politically accountable officials whose
views can be debated openly. See Evans-Marshall, 624 F.3d at 341; Mayer, 474 F.3d at 479-80
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(“[I]f indoctrination is likely, the power should be reposed in someone the people can vote out of
office, rather than tenured teachers.”). In fact, those federal circuits that have considered
whether public primary or secondary school teachers enjoy freedom similar to that of college
professors to determine what they will teach found that the First Amendment does not protect
their curricular speech to the same degree. See Johnson v. Poway Unified Sch. Dist., 658 F.3d
954, 966-70 (9th Cir. 2011); Evans-Marshall, 624 F.3d at 342; Mayer, 474 F.3d at 479-80; cf.
Lee, 484 F.3d at 694 n. 11, 700 (declining to apply Garcetti but concluding under Pickering-
Connick that a teacher’s speech was not protected by the First Amendment).
Contrary to the majority’s position, the test for whether the speech at issue here is
curricular is not based on whether Vlaming’s use of masculine or feminine pronouns has
anything to do with a “curricular topic related to the French language,” supra at 55; rather, the
test is whether students, parents or members of the public could reasonably perceive Vlaming’s
use of masculine or feminine pronouns in class as bearing the imprimatur of the school or
communicating a specific message to students. See, e.g., Lee, 484 F.3d at 699. Vlaming fails
this test. The School Board’s policies governing communication with students by using their
preferred pronouns bears the imprimatur of the school’s message they want communicated to
students. There is no question that the speech at issue occurred in and around the classroom
during school hours and as part of classroom instruction. Therefore, in my opinion, the speech at
issue here is clearly curricular.
With curricular speech, it is the School Board, as the entity that determines the content of
the education it provides, that is speaking. The School Board can therefore choose to regulate
the content of what is or is not expressed. Rosenberger v. Rector & Visitors of Univ. of Virginia,
515 U.S. 819, 833 (1995) (“When the University determines the content of the education it
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provides, it is the University speaking, and we have permitted the government to regulate the
content of what is or is not expressed when it is the speaker or when it enlists private entities to
convey its own message.”). Moreover, “[i]t cannot be doubted that in order to pursue its
legitimate goals effectively, [a school board] must retain the ability to control the manner in
which its employees discharge their duties and to direct its employees to undertake the
responsibilities of their positions in a specified way.” Urofsky v. Gilmore, 216 F.3d 401, 409
(4th Cir. 2000). Viewed through this prism, the present case is less about compelled speech and
more about an employer (the School Board) controlling how its employees (teachers) interact
with its most valuable—and vulnerable—clients (students). 24 Accordingly, I would hold that
Article 1, Section 12 does not protect the curricular speech of primary and secondary teachers.
Once it is established that Vlaming was engaged in curricular speech, the logic of the
Sixth Circuit is persuasive, and the outcome of this case is strongly guided by the decision in
Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, 624 F.3d
332 (6th Cir. 2010). Rather than addressing Evans-Marshall, the majority relies instead on
another Sixth Circuit case, Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021), to support its
conclusion. Like the present case, Meriwether involved disciplinary action that resulted from a
teacher’s failure to use students’ preferred pronouns based on a religious objection. Id. at 498-
503. Meriwether, however, involved a college professor, not a high school teacher. This fact
alone was sufficient for the Sixth Circuit to explicitly distinguish Meriwether from Evans-
24
Under the majority’s formulation, a school board could never mandate how teachers
interact with students short of stating that such interactions must be legal. Any lesser mandate
would be functionally unenforceable, as a teacher could simply raise the specter of compelled
speech and have the mandate invalidated. Indeed, under the majority’s approach, it is
questionable if a school board could even punish a teacher for comments made in the school
setting unless those comments directly related to the subject.
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Marshall. Id. at 505, n.1 (explaining that in Evans-Marshall “[w]e distinguished college and
university professors and made clear that our holding was limited to schoolteachers”). It is also
worth noting that even in Meriwether, the court recognized that the use of students’ preferred
pronouns is an important matter related to curricular speech. Id. at 507. Like the present case,
Evans-Marshall addressed the speech of a high school teacher and is therefore more informative
and far more persuasive. Id. at 334. After analyzing the contours of public employees’ free
speech rights, the Sixth Circuit concluded that the curricular speech of high school teachers is not
constitutionally protected speech. Id. at 340-41. Because “[e]xpression is a teacher’s stock in
trade, the commodity [he] sells to [his] employer in exchange for a salary,” it necessarily follows
that, when a school board offers a curriculum or instructional policy to a teacher, it is not
repressing his speech. See id. at 340 (citing Mayer, 474 F.3d at 479).
Therefore, as Vlaming’s speech was curricular in nature, his free speech claim fails as a
matter of law. However, assuming that the speech was not curricular, Vlaming’s free speech
claim fails as a matter of law under both Garcetti and the first step of the analysis outlined in
Pickering v. Board of Education of Township High School District 205, Will County, Illinois,
391 U.S. 563 (1968), as set out below.
B. VLAMING’S SPEECH WAS PURSUANT TO HIS OFFICIAL DUTIES
Even if Vlaming’s speech was not curricular, his free speech claims fail as a matter of
law because his speech was made pursuant to his official duties as a public employee. When a
public employee speaks pursuant to their official duties, the employee is not speaking as private
citizen and therefore, the First Amendment does not protect the employee’s speech from
discipline. Garcetti v. Ceballos, 547 U.S. 410, 424 (2006). Garcetti acknowledged that “when
public employees make statements pursuant to their official duties . . . the Constitution does not
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insulate their communications from employer discipline.” Id. at 421. “When [public employees]
speak out, they can express views that contravene governmental policies or impair the proper
performance of governmental functions.” Id. at 419. Accordingly, “[s]upervisors must ensure
that their employees’ official communications are accurate, demonstrate sound judgment, and
promote the employer’s mission.” Id. at 422-23. There is no question that school boards retain
this power. See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995)
(“[W]hen the government appropriates public funds to promote a particular policy of its own it is
entitled to say what it wishes.”).
While I agree with the majority that public employees do not forfeit their constitutional
rights by virtue of their employment by the government, see Garcetti, 547 U.S. at 417, the
Supreme Court of the United States has recognized that “many of the most fundamental maxims
of our First Amendment jurisprudence cannot reasonably be applied to speech by government
employees.” Waters v. Churchill, 511 U.S. 661, 672 (1994). Thus, public employees are subject
to some restrictions on core First Amendment activities, like political campaigning. See, e.g.,
U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 564 (1973).
Our jurisprudence accepts that government employees will have to at some point, through
their speech or silence, carry out the government’s objectives through their work duties. See,
e.g., Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2090 (2020)
(Thomas, J., concurring) (“[T]he Constitution itself impos[es] affirmative ideological
commitments prerequisite to assisting in the government’s work.”) (internal citations omitted). It
is inevitable that certain government entities “will adopt and pursue programs and
policies . . . contrary to the profound beliefs and sincere convictions of some of its
citizens . . . [and] funds raised by the government will be spent for speech and other expression
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to advocate and defend its own policies.” Bd. of Regents of Univ. of Wisconsin Sys. v.
Southworth, 529 U.S. 217, 229 (2000). For this reason, “[w]hen a citizen enters government
service, the citizen by necessity must accept certain limitations on his or her freedom.” Id.The majority is correct that the First Amendment “includes both the right to speak freely
and the right to refrain from speaking at all.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,
Council 31, 138 S. Ct. 2448, 2463 (2018). While Vlaming asserts that the School Board’s
requirement to call students by their preferred pronouns constitutes compelled speech, speech
may be compelled by a public employer if the speech in question is part of an employee’s
official duty and not private citizen speech on a matter of public concern. See Garcetti, 547 U.S.
at 421. 25
Public schools may compel speech and regulate its delivery because they have an interest
in shaping and pursuing their educational goals. See Lane v. Franks, 573 U.S. 228, 237 (2014);
Garcetti, 547 U.S. at 418. When a public institution compels a teacher to speak on matters
pertaining to the school’s curriculum and policies, such speech falls within the teacher’s official
duties. See Janus, 138 S. Ct. at 2474 (explaining that in public institutions, “[t]he employee is
effectively the employer’s spokesperson.”). The majority’s classification of a teacher’s
requirement to communicate with students using their preferred pronouns as speech not within a
25
Additionally, it is worth noting that in his dissent, Justice Souter raised concerns about
its applicability to “academic freedom in public colleges and universities.” Garcetti, 547 U.S. at
438 (Souter, J., dissenting) (emphasis added). The Garcetti majority responded by stating “[w]e
need not, and for that reason do not, decide whether the analysis we conduct today would apply
in the same manner to a case involving speech related to scholarship or teaching.” Id. at 425.
This is a far cry from disavowing “any effort to interpret the official-duties doctrine as inflexibly
applying to all aspects of ‘classroom instruction’ or ‘speech related to scholarship or teaching’”
as the majority now claims. Supra at 60 (quoting Garcetti, 547 U.S. at 425). To the contrary,
the plain language of the Garcetti majority indicates that it simply did not need to decide that
issue at that time.
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teacher’s official duties is erroneous. See, e.g., Janus, 138 S. Ct. at 2474 (“[I]n general when
public employees are performing their job duties, their speech may be controlled by their
employer.”). Communicating with students is expected of teachers as a part of their ordinary job
duties. Janus, 138 S. Ct. at 2474; Howell v. Town of Ball, 827 F.3d 515, 524 (5th Cir. 2016);
Johnson-Kurek, 423 F.3d at 595. Thus, by all accounts, adhering to the anti-discrimination
policy falls into two unprotected categories: ministerial speech relating to school and course
administration, Meriwether, 992 F.3d at 507, and educational speech relating to school policies
and values, Chiras v. Miller, 432 F.3d 606, 613 (5th Cir. 2005), both of which may be
permissibly compelled in the furtherance of the school’s educational objectives. Id.The majority notes that Garcetti was not a compelled speech case and Garcetti applied
the official-duties doctrine to “expressions employees make pursuant to their professional duties,
not expressions employees refuse to make.” Supra at 59. I am unpersuaded. The distinction the
majority attempts to draw between expressions made pursuant to professional duties and
expressions employees refuse to make is without support or significance. First, Garcetti itself
does not draw that distinction. There is nothing in Garcetti’s reasoning to suggest that the
prosecutor would have fared differently if instead of writing the defiant memorandum, he had
simply refused to prosecute the case against his employer’s wishes. Second, I find no
meaningful difference between Vlaming calling Doe by his last name alone or by his masculine
chosen French name and Vlaming refusing to call Doe by his preferred pronoun. The end result
is the same.
Additionally, the majority tells us it is a constitutional command that government
coercion, even when indirect, cannot compel individuals to “mouth support” for religious,
political, or ideological views that they do not believe. However, Vlaming is not excluded from
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exercising a contrary view when not actively engaged in his government employment. See
Agency for Int’l. Dev. v. All. for Open Soc’y Int’l, 570 U.S. 205, 213 (2013) (holding it
unconstitutional for the government to regulate speech outside of a federally funded program,
even if that speech voices a contrary viewpoint to the government’s message). Vlaming retained
the right to espouse his own views in contrast to the school’s values. He may do so in public
discussions, panels, or other engagements of his choosing outside of his official job duties. See,
e.g., Loudoun Cnty. Sch. Bd. v. Cross, No. 210584, slip op. at 1 (Aug. 30, 2021) (unpublished
order). But the school is entitled to require its employees to cultivate a safe, inclusive, and
respectful environment while in the classroom.
School boards have “the discretion to promote policies and values of its own choosing
free from forum analysis or the viewpoint-neutrality requirement,” and “retain[] this discretion
even where it chooses to employ private speakers to transmit its message.” Chiras, 432 F.3d at
613. Indeed, the Supreme Court of the United States has held that nothing in the First
Amendment prevents the government from speaking for itself when espousing a policy, taking a
position, or selecting a view it wants to express. Walker v. Texas Div., Sons of Confederate
Veterans, Inc., 576 U.S. 200, 208 (2015); Pleasant Grove City v. Summum, 555 U.S. 460, 467-68
(2009). Such is not a restriction on private speech, but the way the government carries out its
duties to reflect the will of the electorate every day. Walker, 576 U.S. at 208. If this were not the
case, “it is not easy to imagine how government [could] function.” Id. The School Board may
require Vlaming to be a part of a larger initiative during his instructional time without infringing
on his private speech because the School Board has designated certain communications as
official duty speech. See, e.g., Rumsfeld v. F. for Acad. and Institutional Rts., Inc., 547 U.S. 47,
66-67 (2006). Requiring Vlaming to implement the School’s anti-discrimination policy is not
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compulsion, but a requirement that he completes his job duties in the manner assigned. Simply
stated, the School Board is the speaker and Vlaming its spokesperson; thus, the School may
regulate its own messages to that effect. Even if Vlaming fundamentally disagreed with these
communication requests, he could not refuse to comply and, instead, assert his own personal
views. 26
Even assuming that Vlaming’s speech was not made pursuant to his “official duties,” it
was not protected under the Article 1, Section 12 of the Constitution of Virginia under the
Pickering-Connick framework.
C. THE APPLICABILITY OF THE PICKERING FRAMEWORK TO NON-CURRICULAR SPEECH
Individuals do not abandon their constitutional rights “by virtue of accepting public
employment,” but “the state, as an employer, undoubtedly possesses greater authority to restrict
the speech of its employees than it has as sovereign to restrict the speech of the citizenry as a
whole.” Urofsky, 216 F.3d at 406. When a public school teacher’s speech is at issue, the
objective is to “arrive at a balance between the interests of the teacher, as a citizen, in
commenting upon matters of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees.” Pickering,
391 U.S. at 568. The United States Court of Appeals for the Fourth Circuit has described this
inquiry as a three-prong test in which courts consider “(1) whether the public employee was
speaking as a citizen upon a matter of public concern or as an employee about a matter of
26
“Were the Free Speech Clause interpreted otherwise, government would not work.
How could a city government create a successful recycling program if officials, when writing
householders asking them to recycle cans and bottles, had to include in the letter a long plea from
the local trash disposal enterprise demanding the contrary? How could a state government
effectively develop programs designed to encourage and provide vaccinations, if officials also
had to voice the perspective of those who oppose this type of immunization?” Walker v. Texas
Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207-08 (2015).
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personal interest; (2) whether the employee’s interest in speaking upon the matter of public
concern outweighed the government’s interest in providing effective and efficient services to the
public; and (3) whether the employee’s speech was a substantial factor in the employee’s adverse
employment decision.” Kashdan v. George Mason Univ., No. 201509, slip op. at 4 (4th Cir.
June 13, 2023) (quoting Adams v. Trs. of Univ. of N.C.–Wilmington, 640 F.3d 550, 56061 (4th
Cir. 2011)) (hereinafter “Pickering-Connick framework”). This framework is derived from the
Supreme Court of the United States’ decisions in Pickering and Connick v. Myers, 461 U.S. 138(1983).
Rather than applying the Pickering-Connick framework, the majority effectively
prescribes a categorical rule which gives an employee an absolute right to refrain from speaking
if “the State’s interest is to disseminate an ideology.” Supra at 60 (quoting Wooley v. Maynard,
430 U.S. 705, 717 (1977)). The School Board, however, vehemently denies that it has any
ideological interest. It merely requires teachers to follow the wishes of a child regarding their
preferred pronouns. It asserts that “Vlaming subverted the School Board’s efforts to promote a
learning environment free from discrimination based on gender identity in compliance with
federal and state law.” In light of the majority’s summary conclusion that the School Board’s
interest in this case is to “disseminate an ideology,” is the trial court on remand expected to
ignore the School Board’s arguments and evidence presented in favor of its asserted interests?
Under the applicable analytical framework, the answer should be no, but the majority opinion
appears to suggest otherwise.
The majority remarks that pronouns have never “been scrutinized as closely as they are
today for their power to validate—or invalidate—someone’s perceived sex or gender identity.”
Supra at 59-60 (quoting Meriwether, 992 F.3d at 509). While the majority deploys this in
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support of its position that Vlaming was speaking on a matter of public concern, this public
scrutiny only heightens the compelling need for the School Board to shield its students from
potentially hostile classroom environments.
The majority relies in significant part on Wooley to validate its analytical structure.
Wooley, however, is factually distinguishable from this case. In Wooley, a New Hampshire law
required noncommercial motor vehicles to use license plates with the state’s motto, “Live Free or
Die,” and made it a criminal offense to conceal the motto. Id. at 707. The U.S. Supreme Court
held that the state could not constitutionally compel a man and his wife, who held religious
objections to the motto, to display it. Id. at 717. The statute was unconstitutional not merely
because it compelled an individual to convey an ideological message, but because it “in effect
require[d] that appellees use their private property as a ‘mobile billboard’ for the State’s
ideological message or suffer a penalty.” Id. at 715. The requirement to “publicly advertise” the
motto distinguished it from other government compelled messages. 27
A state mandated message, visible “to hundreds of people each day,” on an individual’s
personal vehicle is categorically different from a public school teacher’s on the job
communications with a student as dictated by School Board employment regulations. Id. at 715.
Thus Wooley, as a case dealing with the free speech rights of citizens in their private and
personal capacities, is inapposite to this case, which requires an examination of Vlaming’s role
as a public employee.
27
As an example to highlight this distinction, the U.S. Supreme Court referenced the
motto, “In God We Trust,” contained on United States currency. Wooley, 430 U.S. at 717, n.15.
This motto, unlike the license plate motto, “passed from hand to hand” and “need not be
displayed to the public.” Id. at 717, n.15.
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Moreover, the majority’s distinction between free speech and compelled speech is a siren
song; it is constitutionally insignificant. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487
U.S. 781, 796-97 (1988) (“There is certainly some difference between compelled speech and
compelled silence, but in the context of protected speech, the difference is without constitutional
significance, for the First Amendment guarantees ‘freedom of speech,’ a term necessarily
comprising the decision of both what to say and what not to say.”) (emphasis in original);
Wooley, 430 U.S. at 714 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637
(1943)) (noting that “[t]he right to speak and the right to refrain from speaking are
complementary components of the broader concept of ‘individual freedom of mind’”).
The Supreme Court of the United States’ holding in Janus, 138 S. Ct. 2448 (2018), does
not compel a different conclusion. The challenger in Janus was a public employee and nonunion
member who was required to pay a percentage of the union’s fees. Id. at 2461. The U.S.
Supreme Court held that the “compelled subsidization of private speech” was unconstitutional,
reasoning in part that, “[w]hen a large number of employees speak through their union, the
category of speech that is of public concern is greatly enlarged, and the category of speech that is
of only private concern is substantially shrunk.” Id. at 2464, 2473. It thus held that Pickering
did not apply because it “was developed for use in a very different context—in cases that involve
‘one employee’s speech and its impact on that employee’s public responsibilities.’” Id. at 2472
(quoting United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 467 (1995)). It further
noted that, “[o]f course, if the speech in question is part of an employee’s official duties, the
employer may insist that the employee deliver any lawful message.” Id. at 2473 (citing Garcetti,
547 U.S. at 421-22, 425-26). The Supreme Court in Janus postulated that Pickering would
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“require adjustment” in a compelled speech case, but it declined to decide whether it applied to
such cases and further declined to articulate what that “adjustment” would look like. Id.Here, the policies at issue apply to all employees, but the speech in question only
concerns the interpersonal communications between one teacher, Vlaming, and one student, Doe.
The School Board’s policies did not require Vlaming to endorse the articulated political positions
of an entire union; they merely tasked Vlaming to address Doe with his preferred pronoun. The
purpose of union membership is to allow workers to advocate and collectively bargain for their
employment interests, which inherently involves taking positions on matters of public concern
and public employment. Requiring a nonunion employee to contribute to a union is
distinguishable from requiring a teacher to use the pronouns preferred by a student.
Therefore, to the extent the communication here was not curricular, application of the
Pickering-Connick framework is appropriate. See, e.g., Adams, 640 F.3d at 564-65; Lee, 484
F.3d at 694, n.11. Previous cases which have addressed the precise issue presented here—
whether a teacher has a free speech right to refuse to use a transgender student’s preferred
pronouns—have applied some version of the Pickering-Connick framework. See, e.g.,
Meriwether, 992 F.3d at 507; Kluge v. Brownsburg Cmty. Sch. Corp., 432 F. Supp. 3d 823, 838
(S.D. Ind. 2020) (Kluge I). Most importantly, the Fourth Circuit has consistently applied this
framework to free speech claims made by teachers. See, e.g., Kashdan, 4th Cir. No. 20-1509,
slip op. at 4; Adams, 640 F.3d at 564; Lee, 484 F.3d at 694; Urofsky, 216 F.3d at 406; Boring,
136 F.3d at 368-69.
Vlaming alleges that he was compelled to speak on a matter of public concern. Our
standard of review upon the sustaining of a demurrer requires us to accept as true all factual
allegations, but “we do not accept the veracity of conclusions of law camouflaged as factual
133
allegations or inferences.” AGCS Marine Ins. Co. v. Arlington Cnty., 293 Va. 469, 473 (2017).
Rather, “we review all conclusions of law de novo.” Id. Therefore, I am not required to accept
Vlaming’s legal conclusion that he was speaking on a matter of public concern and evaluate this
claim accordingly.
Public employee speech, when not made pursuant to official duties, receives protection if
the employee speaks as a private citizen addressing a matter of public concern. To determine if
speech touches upon matters of public concern, courts look to “the content, form, and context of
a given statement, as revealed by the whole record,” to evaluate if it involves a “matter of
political, social, or other concern to the community.” Connick, 461 U.S. at 146-48.
While the national debate around “gender identity” may be classified as a “sensitive
political topic[] . . . of profound ‘value and concern to the public.’” Janus, 138 S. Ct. at 2476(quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)), the School Board’s antidiscrimination
policy did not require Vlaming to pay lip service to any particular political position, just to refer
to a child in the way that child wished to be addressed. See PruneYard Shopping Center v.
Robins, 447 U.S. 74, 87 (1980) (finding no First Amendment violation in part when “no specific
message is dictated by the State.”).
Second, I consider “whether the speech is ‘made primarily in the [employee’s] role as
citizen or primarily in his role as employee.’” Urofsky, 216 F.3d at 407. Courts recognize “the
basic truth that speech by public employees undertaken in the course of their job duties will
frequently involve matters of vital concern to the public, without giving those employees a First
Amendment right to dictate to the state how they will do their jobs.” Id. (quoting Terrell v. Univ.
of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir. 1986)) (alteration in original). Only when the
employment is “tangentially and insubstantially involved in the subject matter of the public
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communication made by [the employee], . . . it is necessary to regard the [employee] as the
member of the general public he seeks to be.’” Id. (quoting Pickering, 391 U.S. at 574)
(alterations in original).
This is where Vlaming’s cause of action fails under the Pickering-Connick framework.
The majority’s argument that Vlaming’s speech is unrelated to his position as a public school
teacher because it does not directly pertain to a curricular matter fails to sufficiently consider the
context in this case. Even assuming that Vlaming were to successfully argue that the matter was
of public concern, he undoubtedly fails the Pickering-Connick test because he was a public
employee speaking in his function as a public school teacher.
The manner in which a teacher communicates with his students in the classroom, during
class time, fits squarely within his function as a public school teacher. “[H]ow faculty members
relate to students is part of their jobs” and the manner in which a teacher runs his classroom is a
“core academic dut[y].” Wozniak v. Adesida, 932 F.3d 1008, 1010 (7th Cir. 2019) (emphasis in
original). Indeed, “it is difficult to imagine how a teacher could perform his teaching duties on
any subject without a method by which to address individual students.” Kluge I, 432 F. Supp. 3d
at 839. 28
In this case, Vlaming and Doe’s communications with one another stemmed entirely
from their teacher-student relationship. But for his position as a public school teacher, Vlaming
would have no need to ever communicate with Doe. The majority cannot escape this connection
by repeatedly framing the issue as one of compelled ideological conformity.
28
The incident in which Vlaming used the wrong pronoun in class to refer to Doe
illustrates the inseparability of basic forms of communication from Vlaming’s teaching duties.
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Kluge I, a factually analogous case, highlights how the majority’s analysis goes astray.
In Kluge I, 432 F. Supp. 3d at 833-36, a high school teacher asserted free speech and free
exercise claims against the school’s policies requiring him to use transgender students’ preferred
names and pronouns. The court held that he failed to state a free speech claim in part because he
was not “disciplined for criticizing or opposing the Policy, but . . . for refusing to follow it in his
classroom by refusing to call students by the first names listed.” Id. at 839. The court
acknowledged the public importance of the topic of gender identity but rejected the argument
that all speech related to it is constitutionally protected, stating that “the act of referring to a
particular student by a particular name does not contribute to the broader public debate on
transgender issues.” Id; see also Willey v. Sweetwater Cnty. Sch. Dist. No. 1 Bd. of Trustees,
2023 WL 4297186 (D. Wyo. June 30, 2023). Additionally, while informative but not
precedential, a three-Justice panel of this Court has previously recognized the distinction
between speech occurring within the classroom and speech made for the express purpose of
expressing a view on a topic. 29
In this case, Vlaming was not attempting to influence the political, cultural, or social
debate around this topic. He was not expressing opposition to the policies at a school board
meeting, was not speaking to his friends about his personal views on the topic of gender identity
29
In Loudoun Cnty. Sch. Bd. v. Cross, Record No. 210584, slip op. at 1 (Aug. 30, 2021)
(unpublished order), upon a petition for review, the panel affirmed the lower court’s grant of a
temporary injunction in favor of an elementary school teacher, after he was placed on
administrative leave for comments he made at a public school board meeting criticizing a
proposed policy which would require school staff to use the preferred pronouns of transgender
students. Id. at 1. The three Justice panel reasoned that the facts before it were on a different
footing than those in Kluge I, because there the teacher was “not asserting that he was disciplined
for criticizing or opposing the” school board’s policy. Id. at 13-14 (quoting Kluge I, 432
F. Supp. 3d at 839). Such a distinction makes sense when considering that the core concern in
free speech claims made by public employees “is to maintain for the government employee[s]
the same right enjoyed by [their] privately employed counterpart[s].” Urofsky, 216 F.3d at 407.
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and was not in any other way speaking in his capacity as a private citizen. He, while teaching,
was communicating with a student in his class who was transgender. It is poor reasoning to say
that a public school teacher is contributing to the marketplace of ideas by refusing to address a
student in the manner requested by the student, and required by the School Board in the course of
his employment. 30
This accords with the general recognition that “the public schools possess the right to
regulate speech that occurs within a compulsory classroom setting, and that a school board’s
ability in this regard exceeds permissible regulation of speech in other governmental workplaces
or forums.” See Lee, 484 F.3d at 695. The majority’s holding usurps the School Board’s
authority, as “it is not a court’s obligation to determine which messages of social or moral values
are appropriate in the classroom.” Id. at 700.
Therefore, I would hold that Vlaming has failed to state a cause of action for his free
speech claims. Because I conclude that Vlaming was not speaking on a matter of public concern,
I do not reach the second or third prongs of the balancing framework. My conclusion is the same
under Vlaming’s “Compelled Speech,” “Viewpoint and Content Discrimination,” and
“Retaliation” claims. Vlaming makes a conclusory allegation that he was fired “for expressing
30
Given these fundamental differences, Vlaming’s case is categorically distinguishable
from 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), in which the U.S. Supreme Court held
that an individual who ran a private business designing websites in Colorado had a First
Amendment right to refuse to create websites for same-sex couples, as required by Colorado’s
public accommodations law. In that case, the parties stipulated that the websites were created
“to communicate ideas” and, accordingly, the speech qualified as “pure speech.” Id. at 579.
Under that framework, the U.S. Supreme Court reasoned that Colorado unconstitutionally
interfered with the website designer’s right to participate in the “marketplace of ideas” by
requiring her to produce a message with which she disagreed. Id. at 585 (quoting McCullen v.
Coakley, 573 U. S. 464, 476 (2014) (internal quotation marks omitted)). As previously
examined, Vlaming’s role as a public school teacher is a central, not tangential, part of the
analysis, as it requires the consideration of factors which, simply put, do not exist in 303
Creative.
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his views regarding gender identity,” but his factual allegations do not, as the majority infers,
establish a prima facie cause of action for those claims. To the contrary, the allegations establish
that he was fired for repeatedly refusing to use Doe’s preferred pronouns to refer to Doe in Doe’s
presence, and in the presence of other students and colleagues. His employment termination was
based off his treatment of a student and not his personal expressions on the topic of gender
identity or the wisdom of the School Board’s policies.
For the same reason, I reject any insinuation that equates my conclusion to the
endorsement of an absolute right for the School Board to regulate any and all speech so long as it
occurs within the school building. It is the specific treatment of a student, arising solely out of
the teacher’s position as a public school employee, that compels my conclusion.
IV. DUE PROCESS OF LAW
Regarding Vlaming’s due process claims, I would hold that he has failed to state a claim
as a matter of law, and respectfully dissent from Part II.D. of the majority’s opinion. This Court
has made clear in multiple contexts that the “due process protections afforded under the
Constitution of Virginia are co-extensive with those of the federal Constitution” and so this
Court may look to federal due process jurisprudence for guidance. Shivaee v. Commonwealth,
270 Va. 112, 119 (2005); Morrisette v. Commonwealth, 264 Va. 386, 394 (2002); Willis v.
Mullett, 263 Va. 653, 657 (2002).
The thrust of Vlaming’s due process argument is that the School Board’s policies are
unconstitutionally vague as applied. “The constitutional prohibition against vagueness” serves to
protect “citizens from the arbitrary and discriminatory enforcement of laws.” Tanner v. City of
Va. Beach, 277 Va. 432, 439 (2009). A statute or ordinance must “be sufficiently precise and
138
definite to give fair warning to an actor that contemplated conduct is criminal.” 31 Id. “Due
process protects ‘the opportunity to be heard’ by requiring, at a minimum, ‘some kind of notice’
and ‘some kind of hearing.’” Fairfax Cnty. Sch. Bd. v. S.C. by Cole, 297 Va. 363, 376 (2019)
(quoting Goss v. Lopez, 419 U.S. 565, 579 (1975) (emphasis in original) (citation omitted)).
Whether “the timing and content of the notice” is constitutionally sufficient “will depend on
appropriate accommodation of the competing interests involved.” Id. (quoting Goss, 419 U.S. at
579). “Even where First Amendment values are at stake, ‘employment standards “are not void
for vagueness as long as ordinary persons using ordinary common sense would be notified that
certain conduct will put them at risk”’ of discipline.” Meriwether, 992 F.3d at 518 (quoting
Dade v. Baldwin, 802 Fed. Appx. 878, 885 (6th Cir. 2020)).
In the context of public schools, my inquiry requires a heightened level of caution.
“Judicial interposition in the operation of the public school system of the Nation raises problems
requiring care and restraint . . . . By and large, public education in our Nation is committed to the
control of state and local authorities.” Fairfax Cnty. Sch. Bd., 297 Va. at 375 (quoting Goss, 419
U.S. at 565). Accordingly, school officials “have greater leeway when crafting school policy
than legislatures do in adopting criminal statutes because of the need of school officials to
respond to ‘a wide range of unanticipated conduct disruptive of the educational process.’”
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 442 (4th Cir. 2013) (quoting Fraser, 478
U.S. at 686). However, “the demands of public secondary and elementary school discipline are
such that it is inappropriate to expect the same level of precision in drafting school disciplinary
31
Though Tanner is a criminal case, the principles underlying the constitutional
prohibition against vagueness correlate with the civil context to ensure that public employees
such as school staff are not subject to arbitrary and discriminatory enforcement of employment
policies.
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policies as is expected of legislative bodies crafting criminal restrictions.” Sypniewski v. Warren
Hills Reg’l Bd. of Educ., 307 F.3d 243, 260 (3d Cir. 2002).
In this case, Policy AC provides that the “School Board is committed to non-
discrimination” on the basis of “gender identity.” It cites to Title IX and other federal anti-
discrimination laws, among other legal authority, and cross-references Policy GBA/JFHA.
Policy GBA/JFHA states that “[i]t is a violation of this policy for any . . . school personnel to
harass a student . . . based on . . . gender identity” and further prohibits “[d]emeaning or
otherwise harmful actions[,] . . . particularly if directed at personal characteristics
including . . . gender identity.” This provision recognizes the flexibility needed in the school
setting, providing that “[b]ehavior that is not unlawful may nevertheless be unacceptable for the
educational environment or the workplace.” In other words, sanctionable conduct is not limited
to a violation of a criminal statute. Vlaming’s conduct represents such a scenario.
Accordingly, the policy makes clear that “[w]hether a particular action or incident
constitutes a violation of this policy requires a case-by-case determination based on all of the
facts and circumstances revealed after a complete and thorough investigation.” Policy
GBA/JFHA cites to Title IX and other federal antidiscrimination laws, among other legal
authority, and cross-references Policy AC. Policy GBCB requires all staff members “to be aware
of and abide by all laws, School Board policies and administrative regulations which affect their
work in the West Point school division.”
It is apparent from Vlaming’s Complaint and attached exhibits that the policies as applied
to him were constitutionally unambiguous. Vlaming’s own allegations establish that he was
clearly informed on multiple occasions that (1) the School Board’s policies required him to use
Doe’s preferred pronouns and (2) his continued refusal to comply with such directive would
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result in his termination. 32 On October 24, 2018, Assistant Principal Suzanne Aunspach
informed Vlaming that he could be violating federal law and School Board policy by not using
Doe’s preferred pronouns. 33
Vlaming responded that it was against his religious beliefs to do so. On October 30,
2018, Principal Jonathan Hochman informed Vlaming that a refusal to use Doe’s preferred
pronouns could lead to his employment termination. Vlaming reiterated that he would not
comply due to his religious beliefs. The next day, Hochman informed Vlaming that he would be
receiving a formal letter of reprimand for refusing to comply with School Board policy. Then,
after the in-class incident in which Vlaming misgendered Doe, Vlaming was placed on
administrative leave while the School Board investigated his actions. On November 5, 2018,
Hochman sent Vlaming a final warning letter informing him that his refusal to use Doe’s
preferred pronouns violated Policies GBA/JFHA and GBCB. The letter made clear that
Vlaming’s “use of male pronouns should be consistent with how you address other male
students.” Vlaming also received a written directive from Superintendent Laura Abel informing
32
See Meriwether, 992 F.3d at 518 (holding that a professor could not challenge the
university’s policy for vagueness in part because the university administrators “ultimately told
him [that] he had to use Doe’s preferred pronouns” and he was thus “clearly on notice that the
policy applied to his conduct”); Kluge I, 432 F. Supp. 3d at 844 (stating “that Mr. Kluge’s
allegations demonstrate his own understanding and awareness of the Policy and its requirements
long before his resignation, as he had several conversations with school administrators
concerning his assertions that the Policy conflicted with his religious beliefs and addressing his
desire not to follow the Policy”); Hardwick, 711 F.3d at 442 (holding that a student’s due process
rights were not violated in part because she was informed by school officials “on multiple
occasions” that her shirts violated the school’s dress code).
33
This contradicts Vlaming’s assertion that the School Board, rather than following its
own interpretation of School Board policy, was merely following the parents’ wishes that Doe be
referred to by masculine pronouns.
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him that refusal to comply with the directives “will be considered insubordination and will result
in termination of your employment.”
On November 8, Abel provided written notice to Vlaming that he was being
recommended for dismissal. This notice informed him that he had a right to a public hearing
before the School Board. Vlaming invoked this right and a hearing was conducted on December
6, 2018, with both sides represented by counsel. At the conclusion of the hearing and upon
consideration of the evidence, the School Board unanimously voted to accept Abel’s
recommendation of dismissal, concluding that Vlaming had violated Policies AC and
GBA/JFHA after he was informed no fewer than six times that his refusal to use Doe’s preferred
pronouns violated such policies.
In sum, the School Board clearly and unambiguously informed Vlaming that his conduct
was prohibited, undertook a lengthy investigative process, and conducted a public hearing in
which Vlaming was represented by counsel and had the opportunity to fully advocate in favor of
his position. For these reasons, I would hold that Vlaming has failed to plead a cause of action
regarding his due process claims.
V. BREACH OF CONTRACT
Finally, Vlaming argues that the School Board breached its employment contract with
him when it fired him for exercising his constitutional and statutory rights. Code § 22.1-307
authorizes the School Board to dismiss teachers for “noncompliance with school laws and
regulations.” As a teacher who had been granted continuing contract status, Vlaming had a
contractual right to employment “during good behavior and competent service.”
Code § 22.1-304(B).
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Because I would find that Vlaming has stated a cause of action for his free exercise
claims, it necessarily follows that he has stated a cause of action for breach of contract. I agree
with the majority that this claim may go forward, but only on the basis of Vlaming’s
constitutional and statutory free exercise rights.
CONCLUSION
While I conclude that this case cannot be dispensed with at the demurrer stage on
Vlaming’s free exercise and breach of contract claims, I cannot endorse the test the majority
creates for addressing free exercise claims. Further, I disagree with the majority’s opinion as to
Vlaming’s free speech and due process claims. Therefore, I respectfully concur in part and
dissent in part.
In this building we should dabble in neither the political nor ideological issues of the day.
Nor are we to decide cases guided solely by either the practical or logistical consequences of our
decisions. Yet like all jurists, part of our obligation and duty is to demonstrably ensure that
parties and those similarly situated know their positions have been heard, understood, and
addressed.
No doubt Doe will read or hear about the majority opinion and hopefully this partial
concurrence and dissent as well. He may observe that, except for the background section of the
majority’s opinion, he is nearly invisible. But Doe cannot be left out of the equation, as his
rights play a vital part in the correct analytical framework. That is as it should be.
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