Virginia Supreme Court announces controversial legal standard to revive teacher’s religious liberty claims over dismissal for refusing to use preferred student pronouns

The Virginia Supreme Court revived the religious freedom claims of a public school teacher who was fired for refusing to use a student’s preferred pronouns. A lower court dismissed the suit, agreeing with the West Point School Board that the government has an overriding interest in protecting against discrimination and providing an educational environment where all students feel dignity, safety, and belonging. But the state’s highest court reversed that decision, citing the state’s heightened protection of religious exercise. That allows the case to move forward.

The court agreed with French teacher Peter Vlaming that requiring him to speak in a way he found objectionable unlawfully burdened his religion. “[R]eligious liberties in this Commonwealth,” the 4-3 majority wrote, “do not vanish simply because a purely secular law says so.” The court acknowledged that there are limits to religious exercise, but it held that, more strictly than the U.S. Constitution, the Virginia Constitution allows for such restraints only when religious exercise is an “overt act against peace and good order,” citing Thomas Jefferson’s Act for Religious Freedom, enacted in 1786.

Three justices broke sharply from that high standard. In a concurring opinion, Justices Powell and Goodwyn argued that the proper test under the Virginia Constitution is “traditional strict scrutiny,” and found it inappropriate for the majority to turn a “statutory provision into a constitutional standard.” They also noted that the state’s 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.”

Justice Mann, in a dissenting opinion, went even further in criticizing the majority’s standard:

Until now, it was indisputable that the psychological wellbeing of children … 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 order” test …

This decision is just the latest in a new and controversial area of church-state law in which teachers argue their religious beliefs prohibit them from following public school policies regarding students’ gender identity. In Michigan, parents are suing a school district for concealing the fact that they were using their 13-year-old child’s preferred pronouns. In Wisconsin, a federal court ruled that the First Amendment’s Free Exercise Clause likely does not require a school district to exempt a teacher from its “Preferred Name Policy,” even though the policy conflicts with a teacher’s religious beliefs about gender identity.

Although Vlaming raises solely state law issues rather than federal constitutional questions, these cases are emerging at a time of significant uncertainty in religious liberty jurisprudence in the context of public schools. The U.S. Supreme Court, most recently, in Kennedy v. Bremerton, has signaled an increasing willingness to privilege the individual religious expression of public school teachers and officials at the expense of church-state protections meant to ensure government neutrality toward religion. In the public school context, where all students and parents should feel they are full participants, this is an especially concerning trend.

As always, the specific facts of each case are important and will drive the outcome, but so, too, are the legal standards a court determines to be applicable. After the U.S. Supreme Court’s Kennedy decision, those rules are shifting; the outcomes as uncertain as ever. Many more cases arising from this topic are likely to emerge. Stay tuned.