Virginia Supreme Court Announces Expansive Interpretation of Religious Liberties Protection

State courts have the freedom to interpret their constitutions differently from the U.S. Constitution. A departure from the federal Constitution seems particularly called for when the text of a state constitution diverges significantly from its federal counterpart.

Last week, the Virginia Supreme Court followed this call in Vlaming v. West Point School Board, announcing its state constitution’s unique religious liberties language should be interpreted differently than the federal First Amendment.

The 143 pages that make up the various opinions raise many fascinating issues that others better qualified than me will likely have much to comment on. (For example, Stephanie Barclay at Notre Dame, whose work the court looked to in choosing which standard to apply to religious liberties claims.) I just have a couple of pan-state-constitutional points to make. First, the court’s departure from the standard applied to religious liberties claims under the federal constitution — and the justices’ disagreement over what the right standard is — deserves attention. Second, the case highlights the complexities of pinpointing the “original meaning” of a provision that has appeared in more than one iteration of a state’s constitution.

The case concerned a Virginia public high school teacher who was told to refer to a transgender student by the student’s preferred pronouns. The teacher objected, stating that using pronouns contrary to “biological reality” would violate his religious principles. He claimed he rarely used pronouns in class about students anyway and could work around the issue by simply avoiding them altogether and, in any case, was fine with using the student’s “new preferred names.” The issue escalated, and the teacher was let go for violating school policy.

The teacher sued, claiming the school had violated his free exercise and free speech rights under the Virginia Constitution. The trial court dismissed these claims, and he appealed. The Virginia Supreme Court reversed, allowing the teacher’s claims to go forward.

I am not writing to comment on whether the court achieved the right result — let alone what school policies should be when it comes to trans students and teachers. I just have a few words to say about how the court addressed his free exercise claim.

Virginia’s guarantee of religious liberty is one of the oldest — and most storied — protections of individual rights in American history. It also is completely different from the brief language in the First Amendment (“Congress shall make no law . . . prohibiting the free exercise [of religion]”) and orders of magnitude longer. So long — 238 words — that I’m not going to quote it here. Its first sentence goes back to the Virginia Declaration of Rights of 1776. More language on religious liberty was added to the state constitution in 1830, drawing on Thomas Jefferson’s 1786 Statute for Religious Freedom. It was later collected into one section in 1971.

The central question before the court was whether this text has the same meaning as the very different text of the federal Free Exercise Clause in one regard: Does a neutral law of general applicability nevertheless potentially require the state to accommodate someone if that neutral law burdens their religious liberty, or does the clause simply not apply if religion is not being targeted? The latter alternative is the law under Employment Division v. Smith for federal First Amendment religious liberty claims. This was crucial to the teacher’s case because the school’s general policy would pass First Amendment muster under Smith. Smith was in some ways an analogous situation — unemployment benefits were denied for drug use when the drug use was necessarily part of a religious ceremony.

All of Virginia’s justices rejected the school board’s claim that Smith is the proper standard, but they split on what the standard should be.

The majority opinion made an extensive plunge into the history of Virginia’s 238-word religious liberty guarantee, how it was interpreted over the centuries, and how it influenced the development of federal religious liberty law itself. Based on its review of this history, it announced that an individual’s religious freedom must be respected unless it concerns “overt acts against peace and good order.” Applying this standard, the majority concluded the teacher had properly pleaded a claim.

Other states have broken with Smith in the past, so that in itself was not shocking news. But the new standard did not sit well with the dissent, which called it “a super scrutiny for religious rights but no others.”

Also, interestingly, there was a split between the two sides on what years to look to for the “original meaning” of the language. Should it be 1776, when the earliest language protecting religious liberties in Virginia was written? Or 1971, when the existing religious liberties provisions were repackaged into a single section?

The majority argued that if the language is not changed from one constitution to another, then the prior original meaning goes with it. The dissenting justices, however, argued the religious liberties language compiled in the 1971 constitution should be understood as incorporating pre-1971 judicial interpretations of that text. This disagreement centers around “interconstitutionalism,” which refers to the ways past constitutions influence the meaning of current iterations. The Georgia Supreme Court has touched on these interpretive issues recently. I expect we’ll be seeing more of these debates in states with multiple constitutions in their history as they become more receptive to originalist methodologies.

Anyone interested not just in state constitutions and religious liberty but in American history itself should check out the various opinions in the case. Consider it an early gift for the holidays under the state constitutional tree.

Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice and the author of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.