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

What Free Exercise Means

In Vlaming v. West Point School Board, (VA Sup. Ct., Dec. 14, 2023), the Virginia Supreme Court, in a 4-3 decision, held that a teacher who was fired after refusing for religious reasons to use masculine pronouns in referring to a biologically female student has a claim for violation of the free exercise provisions of the Virginia state Constitution. The majority, in a 73-page opinion, held that the Virginia Constitution requires greater accommodation than does the First Amendment of the U.S. Constitution when a neutral law of generally applicability conflicts with a religious belief.

Religious liberty is a basic fundamental right. Constitution and statutory means, including state and federal Religious Freedom Restoration Acts (RFRA), provide various ways to address the question. It results in a lot of debate and confusion. 

The Declaration of Independence references God, using various language that has somewhat of a deistic tinge (not all of the expressions suggest an above-the-fray clockmaker type deity).

The Constitution, to the chagrin of some (compare the Confederate Constitution and various state constitutions), does not. The only reference is the date ("the year of our Lord"), which is as much of a "date stamp" as a part of the document. 

The Constitution blocks any religious test for any federal office. Many people at the time argued that this had a bigger meaning than we might provide. No religious test meant a general principle of separation of church and state.

As with other extreme language (First Amendment with its "no law"), this was not meant to be taken totally literally. Thus, we had oaths in court though even there note that ability to "affirm" in the presidential oath ceremony. Still, Congress has a chaplain and so forth.

The First Amendment speaks of "establishment" and "free exercise." We had a range of establishment cases in the Supreme Court, especially involving school prayer and funding issues. Free exercise challenges led to many fewer cases. At least, at the Supreme Court level. A few upheld the right to obtain unemployment benefits if you cannot work for a religious reason (work on your Sabbath etc.). 

A blatant religious exception was rather rare. The one main case involved Amish children not going to school for a couple of years. It was a bit of an outlier, and I don't know why an Amish school accommodation wasn't available.

The issue of religious schools itself is a special category. Cases in the 1920s held that parents could send children to non-public schools.

The right to use peyote as part of a Native American religion was not accepted as a constitutional right. (The federal government protected Native American usage to some extent as did various states.) This led to a federal law (RFRA) that ultimately required religious exemptions to federal law even if religion was not targeted.

States often have their own RFRAs. The federal RFRA at first covered the states, but the Supreme Court held that this was an overreach. The vote was 6-3 with Ginsburg and Stevens going along, Stevens arguing RFRA an establishment of religion. A narrower law applied to places like state prisons, leading to a recent case protecting the usage of religious advisors in an execution. Federal courts also deal with a range of prisoner claims.

Let’s step back. What are typical Free Exercise Clause issues?

There is a freedom of belief, freedom from coercion (including indirect coercion such as pressure to pray at school), no discrimination among religions (trickier these days when "discrimination" turns out to be rather neutral laws, even if certain religions -- along with a lot of other things -- might be burdened somehow), and "freedom of the church" (a sort of religious association, including such things as hiring the teachers at a religious school who follow the faith). 

These categories are generally agreed upon though people debate the details. For instance, is a voucher program that allows government funding for religious schools a type of forced funding of religion? What sort of compelling need (such as child welfare) should be required before religious groups should be restrained even among their members? 

On the other hand, religious belief involving education, preaching, and various types of ceremonies that involve some sort of action is not too controversial. Compare a place like France, where the wearing of religious garb (including full covering favored by some cultures) in public places can be controversial.  In the United States, wearing a crucifix, yarmulke (the military allows it in various cases), and so on is deemed protected.

A few people believe in absolute separation of church and state. These are the sorts of people who often want churches to be taxed more. Nonetheless, some religious exemptions have always been understood to be part of religious liberty. Some "play between the joints" is not seen as an establishment. An example would be conscientious objection statutes. 

The tricky thing is when to require such exceptions. The peyote case (Oregon v. Smith) was a tricky one. The case in my view could have been decided narrowly (the state court went that way) to provide unemployment benefits when a person is fired for peyote use in a religious ceremony. The fact that drug counselors (!) were involved might have provided another way out. 

The fact peyote was technically a crime (which the state showed no concern about) alone did not warrant denial of unemployment benefits. It also is used as part of a religious ceremony, which is a special core of religious liberty. Of course, we cannot apply such a rule absolutely or things like poisonous snakes or throwing widows on funeral pyres might be acceptable. An early case involved polygamy.  

Consider the case excerpted at the beginning of this entry. I do not think we need to go all one way or the other to decide the matter. The dissent argued as its strongest point that religious liberty is not about special exemptions. This might theoretically be a reasonable idea though it never was used literally.

Oregon v. Smith suggested accommodations could be applied legislatively. 

We can also include a strong application of "rational basis" to help avoid "neutral" laws that aren't neutral and burden religion. We can imagine various things that are supposedly "neutral" that are phony.

OTOH, just because religion (and other things) sometimes are burdened, it should not be deemed illegal discrimination. COVID rules burdened all types of meetings. The line drawing generally made sense such as treating brief trips to the supermarket differently than an hour of praying and singing in close quarters (often involving the elderly) at religious meetings.

A few people are quite doctrinaire about not giving religious groups any special exemptions. Push comes to shove, few are absolutists here, including such things as recognizing a Muslim who wants to pray during the day should be treated a bit differently than those who want a break to watch YouTube videos.

Religion is not the only "big thing" to bend some for. The needs of a family, including things like breastfeeding, come to mind. But, it is appropriately given a special status above the run-of-the-mill. Up to a point.

The dissent also dealt with the compelling interests involved here. First, public employees have fewer rights to freedom of speech in the course of their employment. It is not a "private" realm as compared to a religious group meeting at a church or home.  Public/private is a sound division here. This is why public accommodations are appropriate for civil rights laws, even if they clash with certain religious beliefs.  

More importantly, the regulations here protect trans people. We can respect, more than various other things people might care about, the religious beliefs of schoolteachers. For instance, if they wish to take time out to pray or do not want to take part in certain school ceremonies that clash with their beliefs (I'm thinking of play where any specific teacher isn't required or perhaps an event involving non-kosher meat).  

The fact a school regulation is neutral (again noting that sometimes they are not; for instance, even secular France still has some religious flavor) alone need not be the test. Again, some nod to religious accommodation can be provided.

Religion is a special aspect of human society, including our own. Choices in religion and conscience are part of religious liberty. "Religion" in my view should be applied in an open-ended fashion.  It does not just mean belief in God or the afterlife. The exact meaning is tricky and has divided people who study religion. But, if Unitarian-Universalists accept atheists, as they do, it still is a religion.

The problem arises when the accommodation harms others. No accommodation is likely to lack some sort of effect. Nonetheless, some are truly burdens. A company not providing health care benefits (the Hobby Lobby case) that regularly is provided (opening up burdensome workarounds) is an example. Civil rights laws are a prime example. 

A schoolteacher being required to use the preferred pronouns of a student is burdened when that clashes with the teacher's beliefs. Nonetheless, there are certain requirements to be a teacher. A science teacher might have to teach evolution, even if they are a creationist.  Various religious beliefs of students might be offensive to people. A teacher cannot make an issue of it in class because their beliefs counsel them to evangelize.   

As noted above, public employees have less speech rights than those in private contexts. This includes the ability of the government to compel speech, which is usually a constitutional no-no. The rule here has a compelling purpose to promote the constitutional principle of equality. This is not a perhaps sound policy choice akin to a range of things. It involves a fundamental right that is there along with religious liberty.

Litigation is ongoing to push the idea that abortion rights in various cases can be a matter of free exercise. I am sympathetic to this concept though am concerned about the open-ended nature of the principle. What helps is that it is a balance of things. Abortion involves equality, privacy, and fundamental questions that at heart are matters of conscience. Picking and choosing is also a type of establishment of religion.

Important things tend to be complicated. You will find certain basic truths. But then it gets complicated. That is why I write so much, and still leave a lot out.