Virginia Courts Are Revisiting How to Interpret the State Constitution

Virginia’s courts are beginning to chart their own course, separating themselves from federal precedent. This brings unique opportunities — and challenges — for litigants.

While state constitutions have always held the potential to serve as independent sources of individual rights, only recently have more state courts explored interpreting those constitutions on their own terms instead of looking to federal court analysis of similar U.S. Constitution clauses. In our recent law review article, The Emerging Virginia Constitution, Elizabeth Putfark and I explore how Virginia has begun to do just that. 

For decades, Virginia was one of many state courts that followed a lockstep approach — reflecting years of federal rulings in which federal constitutional rights were incorporated against the states, usually in a manner that raised the floor for individual rights protections. There were practical benefits, too, like more federal case law that states could rely on and a deeper range of scholarly analysis. 

But this lockstep approach lacked a theoretical basis. Scholars have long criticized lockstepping for undermining state-level democratic and federalist principles. As interpretive methods like originalism and textualism gain prominence, it made even less sense to assume that state constitutional provisions — ratified at different times by different people with different histories and traditions — mirrored federal ones. Especially when the text of the state constitution itself differed, lockstep reasoning increasingly seemed out of step.

The Supreme Court of Virginia’s 2023 decision in Vlaming v. West Point School Board marked a significant turning point in Virginia constitutional interpretation. In Vlaming, a high school French teacher was fired for refusing to use a student’s preferred pronouns. The termination, he alleged, violated his rights under the Virginia Constitution, most notably his right to the free exercise of religion under Article I, Section 16. The school board argued that no violation had occurred because under the test for free exercise claims derived from the federal Constitution, as announced in Employment Division v. Smith, the teacher failed to state a claim.

In a groundbreaking opinion, the court developed its own test rather than apply the federal standard. It held that when a person acts according to a sincere religious belief, the government must accommodate that belief — unless doing so would threaten public safety, peace, or order. This “duty of accommodation” test is a sharp departure from federal free exercise jurisprudence (where a neutral law of general applicability that incidentally burdens a religious practice is constitutional) and has no analogue among the states. But a majority of the court found that its interpretation was compelled by Virginia’s long history of robust religious liberty protections as well as the textual differences between Virginia’s Article I, Section 16 and the First Amendment of the federal Constitution. 

Vlaming also embraced state constitutionalism’s federalist imperative more broadly, declaring that “the architecture of judicial power implicit in American federalism gives . . . the Supreme Court of Virginia the last word on the meaning of the Constitution of Virginia.” And decades of prior case law relying on federal precedent to define the state constitution were recast — not as evidence of subordination to federal interpretation — but as examples of where state and federal views happened to align. Those decisions were “merely [an] acknowledg[ement] that the then-existing interpretation” of the federal analogue “match[ed] our own understanding,” the court said.

What happens next is an open question that is more complex than it appears. State constitutions are often amended and sometimes fully re-ratified. For example, Virginia has fully revised its constitution six times and amended it much more often. Just as a state may independently interpret provisions in a state constitution, a state court may also use independent methods of interpretation. But if that court wants to determine the “original public meaning” of a provision first adopted at one time, and then readopted later in a new constitution, on which time period should it focus? In addressing this question, our article highlights the tensions between drafter intent, the understanding of the ratifying public, and judicial interpretations that accumulate over time. 

These interpretive questions will take on special significance in defining the scope of unenumerated, “fundamental” rights under the Virginia Constitution. Unenumerated rights are not explicitly granted but instead inferred from settled principles or common understanding. Federal courts have generally rooted protection for unenumerated rights in the concept of “substantive due process.” By contrast, the Virginia Constitution contains several provisions that could serve as sources for fundamental rights beyond those expressly listed. For example, Virginia is one of several states with an explicit recognition of inherent rights — declaring that “all men are by nature equally free and independent, and have certain inherent rights.” In addition, it was not until reconstruction, in 1869, that Virginia added a “Construction of the Bill of Rights” provision specifically stating that the enumeration of specific rights “shall not be construed to limit other rights of the people not therein expressed.” The delegation that added this language is particularly notable — for the first time Black delegates participated in shaping Virginia’s constitution. Finally, we also consider the explicit protections for due process in the Virginia Constitution, and the time periods when they were added and amended. Virginia expanded its conception of due process to include protections for “life” and “liberty” in 1971 as part of a broader revision to modernize the document while also preserving fundamental principles. 

Ultimately, our article attempts to frame but a few of the open questions litigants will need to address in bringing constitutional claims under the Virginia Constitution — many of which will also be relevant to our sister states that are also embarking on quests of independent constitutional analysis. 

Lisa M. Lorish is a judge on the Virginia Court of Appeals. 

Suggested Citation: Lisa M. Lorish, Virginia Courts Are Revisiting How to Interpret the State Constitution, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 14, 2025), https://statecourtreport.org/our-work/analysis-opinion/virginia-courts-are-revisiting-how-interpret-state-constitution