RICHMOND, Va. (Legal Newsline) - The Virginia Supreme Court ruled a teacher can sue the school district that fired him for calling a transgender student by his preferred names but avoiding using third-person pronouns at all, saying the disciplinary action may have violated the teacher’s religious rights.
Peter Vlaming taught French at West Point High School for six years until the 2017-18 school year, when he learned a biologically female student was transitioning to the male gender and preferred to be addressed by a traditionally male name. Since Vlaming assigned his students French names in class, he had the entire class change their names to avoid drawing attention to the transgender student.
By the middle of the semester, the student identified as John Doe also asked the teacher to use masculine pronouns. Vlaming refused, citing his religious conviction that “sex is fixed in each person.” He instead avoided using third-person pronouns at all.
The controversy boiled over one day when Doe was wearing virtual-reality goggles as part of a class exercise and Vlaming exclaimed “don’t let her hit the wall!.” He immediately put his hand to his mouth and apologized to Doe after class, but the student withdrew from the class later that day.
Vlaming immediately reported the incident to West Point Principal Jonathan Hochman and the principal recommended putting him on administrative leave, which School Superintendent Laura Abel did the next day. Five days later Hochman issued a reprimand and final warning letter, saying he had violated school policy prohibiting “harassment or retaliation against students and others on basis of gender identity.”
When Vlaming persisted in saying his “conscience and religious practice prohibited him from intentionally lying” by referring to a female as a male, the school board fired him. A trial court dismissed his case but a divided Virginia Supreme Court reinstated it, with the majority ruling the school board may have violated his right to free expression of religion under the state constitution.
In a lengthy dissent, Chief Justice S. Bernard Goodwyn and two others said the majority misinterpreted the Virginia Constitution to establish a new principle of “super scrutiny” for laws that affect religious expression that could make it hard for schools and other government institutions to enforce rules designed to maintain order and discipline.
“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,’” Justice Goodwyn wrote, quoting James Madison in Federalist 51. “Today, our gates open, unguarded.”
The majority opinion, written by Justice D. Arthur Kelsey, starts by observing no state takes freedom of religion more seriously than Virginia, which delayed ratification of the First Amendment of the U.S. Constitution for more than a year partly because it was viewed as ”too weak.” The equivalent section of the Virginia Constitution states no one shall “suffer on account of his religious opinions or belief” and all will be “free to profess and by argument to maintain their opinions in matters of religion.”
The dissenters would have Virginia adopt a looser standard under the U.S. Supreme Court’s landmark Employment Division vs. Smith decision, the court said, under which the government can enforce laws of general application even if they affect religious beliefs, as long as they serve a compelling government interest that cannot be achieved any other way.
The majority said the question here was “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.’”
“We understand, as everyone does, that some limiting principle on this textually unqualified right must be recognized,” the court said. “With equal certitude, however, we know that the imitation 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.”
Justice Cleo Powell, joined by Chief Justice Goodwyn, said the majority shouldn’t have referred to “peace and good order,” words that don’t appear in the Virginia Constitution, and stick to the more widely used “by a compelling state interest and by means narrowly tailored to achieve that interest.”
Justices Thomas Mann, Goodwyn and Powell, in a separate dissent, said the court was right to allow Vlaming’s free-exercise and breach of contract claims to proceed but the majority’s interpretation of the state constitution established “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.”
The government has compelling interests beyond peace and good order, the dissenters wrote, including protecting the psychological health of minors and enforcing labor laws that may impinge upon religious expression.