Supreme Court of Virginia’s Vlaming Decision is a Legal Earthquake with Major Implications for Virginia Businesses, Organizations, and Government Entities

I. Introduction and Executive Summary

On December 14, 2023, a legal earthquake hit Virginia when the Supreme Court of Virginia issued its decision in Vlaming v. West Point School Board, 895 S.E.2d 705 (Va. 2023).  But, to the extent there is a “legal” Richter scale, that earthquake has yet to register.  Headlines covering the decision noted the result dealing with a hot-button social issue: a teacher fired for refusing to use a student’s preferred pronouns on religious grounds could continue to pursue his case against the school board for alleged violations of constitutionally protected religious rights.  But that context has left under-appreciated the dramatic change that occurred to Virginia law, and the potential implications.

The upshot is that Virginia is likely now the most protective state for religious liberty and expression, protecting it more strongly than any other constitutional right.  To do so, Virginia will now apply a “super” strict scrutiny to any burdens on religious practice, in what will be a novel framework.

Under this heightened test, the state cannot justify burdening religious expression or practices based on any legitimate or even compelling state interest.  Virginia state and local governments may burden religious expression or practice (even if not the aim of the law or policy) only if it is for the purpose of public safety.  And, that burdening law or policy must be narrowly tailored to advance that narrow public-safety objective.  Otherwise, a religious accommodation or exception must be made, even for generally applicable laws.

This article is not aimed at evaluating the merits of the Vlaming decision.  Instead, we address what its implications may be for Virginia law—and Virginia citizens, businesses, and organizations—going forward.  Among those implications, described in more detail below:

1.) The strong protection of religious liberty in Vlaming may influence how the Virginia Human Rights Act’s religious discrimination protections are interpreted, creating even more demands on employers than exist under federal law. It is not hard to see—as the Vlaming case itself demonstrates—how an employer’s legal requirement to prevent sex or gender-based discrimination could conflict with its obligations to other employees to accommodate their religious beliefs regarding, for instance, use of preferred pronouns.

2.) More laws and policies will be subject to challenge or a defense based on religious objection than ever before, and with uncertain outcomes. The Vlaming decision throws into question whether Virginia may soon have to recognize plural marriage, excuse certain religiously based practices from criminal prosecution, or how zoning and environmental laws may apply to businesses or organizations claiming a religious objection or burden.  If the standard is as strict as Vlaming indicates, governments may have a hard time defending against such religiously based claims or defenses.

3.) By departing from federal precedent on religious liberty protections and embracing a more protective interpretation under the Virginia Constitution, Virginia may find itself in intractable conflict with federal law. There could no doubt be tensions (as the Vlaming case demonstrates) between protecting religious practices and protecting against other types of discrimination, including based on sex, sexual orientation, or gender identity.  The Vlaming decision offers few options for entities trying to navigate those tensions that may run headlong into what, for instance, the U.S. Department of Education may contend is required under Title IX to protect LGBTQ students from discrimination.

Because of these significant legal implications, among others, all must consider how the Vlaming decision will impact them.

For citizens, businesses, and other organizations, Vlaming may provide additional protections that should not be ignored.  Today, you have a much stronger constitutional right to religious liberty than you had on December 13, 2023—so use it in appropriate cases.

For employers, get ready for these religious-discrimination issues to be front and center in your HR compliance discussions and decisions.

For state and local governments, be prepared to defend even long-standing laws, ordinances, permitting decisions, etc. against challenges or defenses based on religious beliefs and practices.

The change in Virginia law signaled by Vlaming opens an entirely new chapter of rights-based litigation in Virginia, with almost all of it yet to be written.  The decision is important, and it’s here to stay for the foreseeable future—and, given the recent trends at the U.S. Supreme Court, may presage a major change coming in U.S. Constitutional law before too long.

II. The Decision Itself

First, what did the Court actually decide in Vlaming?

A. The Alleged Facts

The School Board moved to dismiss Mr. Vlaming’s lawsuit.  This is important because the trial court decided the case without hearing any evidence.  Under well-settled legal standards, the Supreme Court of Virginia was required to assume that the factual allegations in Mr. Vlaming’s Complaint were true.

According to his complaint, Peter Vlaming was a public high school French teacher, employed by the West Point School Board.  During the end of the 2017-2018 school year, Mr. Vlaming became aware that a student he had previously taught and who was biologically female, intended to transition to a male identity and wished to be referred to using male pronouns.  Mr. Vlaming alleged that, for him, “this request asked him to violate his conscience.  He holds religious and philosophical convictions that reject the idea that ‘gender identity, rather than biological reality, fundamentally shapes and defines who we truly are as humans’ and instead accept as verity that ‘sex is fixed in each person, and that it cannot be changed, regardless of our feelings or desires.’”  Vlaming v. West Point School Board, No. 211061, slip. op. at 2-3 (Va. Dec. 14, 2023) (quoting Mr. Vlaming’s complaint) (hereinafter, the “Decision”).[1]  Mr. Vlaming further alleged that his conscience and religious practice “‘prohibits him from intentionally lying, and he sincerely believes that referring to a female as a male by using an objectively male pronoun is telling a lie.”’  Id. at 3 (quoting Mr. Vlaming’s complaint).

Mr. Vlaming alleged that the student, referred to as “John Doe” in the litigation, enrolled in Mr. Vlaming’s French II class for the 2018-2019 schoolyear.  To avoid issues, Mr. Vlaming asked all the students to pick new French-language names to be used in the class.  He then would use Doe’s chosen French name, and limit use of any pronouns in class discussions.  This seemed to Mr. Vlaming to accommodate Doe while maintaining his religious belief and practice.  Id. at 2-3.

Mr. Vlaming alleged that the student—Doe—seemed comfortable with his approach, but that when he explained his reasons (his religious beliefs) to Doe’s parents, they complained to school administration.  This led to escalating conflict with the school’s principal, who insisted that Mr. Vlaming use the student’s preferred pronouns or face discipline.

Mr. Vlaming alleges that during one class, when it appeared that Doe was at risk of injury during a class exercise, Mr. Vlaming inadvertently referred to Doe as “her” rather than “him,” for which he later apologized.  Doe withdrew from the class that day.  Id. at 5.  Mr. Vlaming reported the incident to a school administrator.  Mr. Vlaming was placed on administrative leave pending an official review, and ultimately—after refusing to use Doe’s preferred masculine pronoun due to his religious beliefs—Doe was fired by the West Point School Board for violating its policies against discrimination and harassment based on gender identity.  Id. at 6.

Mr. Vlaming filed suit asserting free-exercise, free-speech, due-process, and breach-of-contract claims exclusively under Virginia law, including the Virginia Constitution.  The trial court dismissed the case on purely legal grounds, finding that Mr. Vlaming had not stated valid legal claims under Virginia law.  Mr. Vlaming appealed.

B. The Majority Opinion 

The heart of the Vlaming decision is the Court’s interpretation of Article I, § 16 of the Virginia Constitution, which is Virginia’s enshrinement of religious liberty in its constitution.  The Decision has three opinions—the majority opinion (Justice Kelsey, joined by Justices McCullough, Chafin, and Russell); a concurring opinion (Justice Powell, joined by Chief Justice Goodwyn); and a dissenting and concurring opinion (Justice Mann, joined in part by Justice Powell and Chief Justice Goodwyn).  But all of the Justices agreed that Mr. Vlaming had validly pled a case for violation of Article I, § 16—based on his allegations—but would use very different tests for evaluating the case on the merits.

Free Exercise of Religion Claim

The Court begins by plainly declaring that the Decision interprets the scope of the Virginia Constitution, not the First Amendment of the U.S. Constitution.  This furthers the development of Virginia’s own constitutional law which is informed, but not necessarily coterminous with the U.S. Constitution.  Decision at 8-9.

Indeed, the text of Article I, § 16 is markedly different from the much shorter Free Exercise Clause of the First Amendment.[2]  Because of this difference, the Majority held that federal authorities on the Free Exercise Clause could “inform but do not necessarily govern the construction” of Article I, § 16.  Decision at 11.

Indeed, the Decision criticized sharply the controlling U.S. Supreme Court precedent on the scope of the Free Exercise Clause, Employment Division v. Smith, 494 U.S. 872, 878-79 (1990).  See Decision at 11.  Understanding that case helps explain how Vlaming departs from it.[3]

In Smith, Justice Scalia wrote for a 5-4 majority holding that the Free Exercise Clause of the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that this law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”  Id. at 879 (quotation omitted).  There, the petitioners had been denied unemployment benefits because they were fired for violating Oregon’s criminal prohibition against use of peyote.  The petitioners claimed—and it was undisputed—that their religious beliefs required sacramental use of peyote, and so claimed that the Free Exercise Clause prohibited Oregon from penalizing them for abiding by their religious beliefs.  Id. at 874-75.  The Court found that strict scrutiny did not apply in the case because the criminal law was religiously neutral and of general applicability.  Id. at 878-80.

Thus, if Virginia law applied Smith, Mr. Vlaming likely would have no legal cause of action, as the West Point School Board was enforcing a neutral and generally applicable policy for all teachers.  But the Decision explicitly departs from Smith, stating that “[i]n our opinion, the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain.”  Decision at 13 (citing recent federal precedent questioning but abiding by Smith) (emphasis added).

The Decision then applies a doctrinally originalist approach to interpret Article I, § 16, looking first to the text, historical developments, and the original intent of the framers of the 1776 Virginia Constitution.  Decision at 13-20.  Based on that, the Court concludes that Article I, § 16 explicitly does contemplate religious exemption from generally applicable laws, and that such exemption applies unless there is some heightened societal interest.  The question, then, is what types of state interests can justify the burden on religious freedom.

Filling in some gaps based on Jefferson’s Virginia Statute for Religious Freedom and other founding-father writings on the subject, the Court embraces a broadly protective view of religious liberty under the Virginia Constitution.  The Court concludes that, in the Vlaming case, the question for his free exercise claim is:

[W]hether Vlaming’s sincerely held religious beliefs caused him to commit overt acts that invariably posed some substantial threat to public safety, peace or order . . . and if so, whether the government’s compelling state interest in protecting the public from that threat, when examined under the rigors of strict scrutiny, could be satisfied by less restrictive means.

Decision at 23 (quotations omitted).

The Court declined to go into detail to extrapolate what this limitation means in terms of other hypothetical applications.  But the Court did make clear that the limitation of “public safety, peace or order” had teeth, creating an even stricter test from what typically applies in applying judicial scrutiny.  See Decision at 20.

Applying that rule, the Court concluded that Mr. Vlaming had alleged a valid claim, and therefore the court would proceed to a trial on the merits – to apply the new test under Article I, § 16.

Free Speech Claims

The Decision also broke notable ground in applying Virginia’s free-speech protections, under Article 1, § 12 of the Virginia Constitution.[4]  The Court concluded that Mr. Vlaming had alleged a valid compelled-speech claim.  He alleged that the use of preferred pronouns was not related to his curricular topic, French, and argued that it was simply a “compelled-speech mandate seeking to use him as an instrument for fostering public adherence to an ideological point of view he finds unacceptable.”  Decision at 55 (quotation omitted).

The Court found that speech regarding gender identity received the highest protection under Article I, § 12 because it involved ideological disagreement about which the state cannot compel speech without ample justification.  Id. at 56.  It distinguished “official-duty” or “government-speech” exceptions (which allow the government to punish employees for unapproved speech) because, here, it involved forcing Mr. Vlaming to express ideological views with which he disagreed.  Id. at 58-60.

C. The Concurring and Dissenting Opinions

As noted above, both the concurring and dissenting opinions in Vlaming would have held that Mr. Vlaming pled a valid free-exercise claim under the Virginia Constitution.

The concurrence noted that it would apply a traditional strict scrutiny test—such that the state could justify a burden on religious practice if it could show any “compelling state interest.”  Decision at 74.  The dissenting opinion took a very different view that would have applied a more Smith-like approach to free exercise claims under the Virginia Constitution, but thought the allegations were sufficient to raise issues as to whether the policies were neutral on religion.  Id. at 80.

The opinions are worthy of review; however, this article focuses on the practical impact of the majority decision.

III. Legal Implications

So what does this all mean?

Vlaming Decision is Not Just for Government Lawyers – It Will Impact Private Organizations and Businesses

Constitutional rights are generally enforceable against the Government, not private actors.  But this decision will affect private actors as well.

First, private businesses or organizations may well consider whether the new protections under Vlaming allow them to be exempt from certain disfavored requirements.  It appears clear that, while religious beliefs are personal, organizations also are protected and can have religious beliefs or practices.  See, e.g. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (holding that corporations can exercise religion).  Thus, and as suggested further below, there could be opportunities to use the expansion of religious liberty protections in Virginia to the benefit of multiple private persons (from individuals to corporations).

Second, it is likely Vlaming will influence interpretation of the Virginia Human Rights Act (VHRA) and how employers must accommodate religious beliefs and practice.

Under the VHRA, it is unlawful for a business to discriminate, either in employment or public accommodation, based on an individual’s “race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, military status, disability, or national origin.”  Va. Code § 2.2-3905(B)(1) (banning employment discrimination); see also 2.2-3904(B) (similar protected classes for public accommodation).

As you may recall, Virginia enacted the Virginia Values Act in July 2020.  This law provided new remedies and claims that did not previously exist under Virginia law.[5]  Because these laws are relatively new, the reality is that there is little settled law or jurisprudence in the Virginia state courts interpreting the VHRA.

Vlaming’s expansive view of religious practice—including performance of work duties according to the dictates of religious conscience—begs whether that same understanding applies in the VHRA context?  While the history and text of Article I, § 16 and the VHRA are quite different, there will no doubt be litigation to define whether there is a practical difference in discrimination based on religion (under VHRA) and burdening religious practice (under the Virginia Constitution).

If the same interpretation applies, private businesses may find themselves between a rock and a hard place in complying with state and federal anti-discrimination laws.  If, for instance, a conflict arises between an employee’s desire to be referred to by certain pronouns and another employee’s refusal to do so based on sincerely held religious beliefs, what is an employer to do?  If some informal resolution is not possible, the employer could conceivably face liability under the VHRA no matter what it does.

Moreover, the broad nature of the religious-rights protection provided under the Virginia Constitution may influence how the VHRA is applied.  Bear in mind that in the summer of 2023, the U.S. Supreme Court modified the test regarding when an employer could deny an employee’s request for a reasonable religious accommodation, making it more difficult for an employer to deny such a request.  See Groff v. DeJoy, 143 S. Ct. 2279 (2023) (to deny request for religious accommodation under Title VII, employer must show burden of granting request would result in “substantial increased costs” in relation to the “conduct of its particular business.”)[6]  But it remains the case that, under federal law, businesses do not have an inflexible obligation to accommodate religiously based practices.  Given Vlaming’s strong requirement that governments yield to religious practices unless there is a narrow, compelling interest, Virginia courts may be persuaded that, under the VHRA, employers also must provide more robust protection for religiously based practices and beliefs.

More Laws and Government Actions are Subject to Religious Objection Now than Before

Immediate implications also come on the operation of general state and local laws, regulations, and ordinances.  Under Vlaming , it is now a potential defense to any enforcement of those laws that they burden religious belief and practice.  That can mean any criminal law, any civil regulation, or even a zoning ordinance—really any government action taken.

Here are just a few hypotheticals for consideration:

• If, like in Smith, a defendant claims that use of heroin is necessitated by religious practice, can the defendant be legally prosecuted in Virginia or denied certain benefits due to violating the criminal law?
• If a person’s religious faith requires plural marriage, must Virginia law recognize the marriages?
• If a person’s religion requires ritualistic sacrifice of animals, can that be prosecuted as animal cruelty?
• If the state is considering a major infrastructure project and the areas affected by it are worshiped by some as sacred, can the state proceed? Does it matter if public safety is the justification for the project?  Or if the state is approving a private project versus building it, itself?
• If a religiously affiliated school wants to use property in a non-conforming use under the zoning code, can the locality deny the special use permit on grounds other than public safety?
• If a person’s religion forbids support of government social welfare programs, can they be forced to pay Virginia taxes in support of them?

Under Smith, those and other hypotheticals were settled, and the answer was clear: religious belief or practice would not impact how religiously neutral, general laws apply.  Under Vlaming, the door is swung open in Virginia, and these and similar issues may well need to be decided under the new “super” strict scrutiny test.

Vlaming’s “Super” Strict Scrutiny will be Difficult to Satisfy

One facet of Vlaming that garnered strong disagreement from the concurring and dissenting justices is its narrowing of the types of justifications that can pass judicial scrutiny.  The state must show both that its interest is in protecting against some threat to public safety and that it is narrowly tailored to meet that objective.  By erecting a “super” strict scrutiny standard, Vlaming makes it difficult for the government to overcome a valid religious objection by a particular individual or organization.

First, what is necessary for public safety, and how is that to be measured?  Are health and environmental laws necessary for public safety?  Taxation laws?  Educational laws?  Zoning ordinances?  Noise ordinances?  Consumer protection laws?  Anti-discrimination laws?  Property laws?  Domestic relations laws?

Second, how are the courts to assess whether something is narrowly tailored when the object is “public safety”?  For instance, is public safety implicated by exempting a handful of adherents to use sacramental-heroin?  What evidence would the government need to show that its broad, general prohibition could not allow for some exception without impacting public safety?

Thus, cases where there are religious objections will no doubt put state and local government attorneys to the test.  This, in itself, may force governments to think long and hard before picking an enforcement fight with someone claiming a burden on religious belief or practice.

Virginia May Find Itself in Intractable Conflict with Federal Law

By extending the right to free exercise of religion under the Virginia Constitution beyond the First Amendment’s bounds, the Vlaming decision may also create imbalance with federal laws.

For instance, much funding for Virginia schools, transportation, other infrastructure, and health care comes from the federal government.  The vast majority of that funding is not through federally-mandated laws, in which federal law would preempt Virginia law, but through Congress’s general spending power, which states abide by consensually in order to obtain the federal largesse.  The underlying facts of Vlaming itself provide a not unlikely example of how an intractable conflict might arise.

Suppose the federal Department of Education determines that the School Board in Vlaming needs to maintain its policy in order to comply with Title IX, which requires certain non-discrimination standards for the receipt of federal funding.  But the School Board cannot, under Vlaming, agree to enforce the policy without violating Mr. Vlaming’s rights under the Virginia Constitution.  And, moreover, because mere compliance with federal law is not a valid basis under Vlaming to burden religious practice in Virginia, the School Board would be unable to comply with federal law.  And that could jeopardize federal funding.

Other examples could also arise, particularly if the federal government is willing to push states to adhere to its standards—under the Medicaid program, in building federally-funded transportation projects, and so on.

The potential conflict with federal law could also impact not just government entities, but also private employers.  As another example, it is now settled law under Title VII that discrimination “because of sex” encompasses claims of discrimination based on a person’s “sexual orientation or gender identity.”  Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).  This past fall, the Equal Employment Opportunity Commission (“EEOC”) published proposed Enforcement Guidance on Harassment in the Workplace.  In its guidance, the EEOC cites cases for the proposition that the alleged failure by a supervisor to use an employee’s preferred name or pronoun is a form of sexual harassment that could subject the employer to liability under Title VII.[7]  What is an employer in Virginia to do when a supervisor refuses to refer to an employee by a preferred pronoun on religious grounds, and the employee contends this constitutes sexual harassment under Title VII or the VHRA?  And what if, under Virginia law and as informed by Vlaming, the employer has different obligations with respect to religious accommodation?

Religious Beliefs and Practices will Need to be Litigated

A further implication of Vlaming will be the need for Virginia courts to adjudicate whether a litigant sincerely holds the allegedly burdened religious beliefs and practices—and even whether they are religious beliefs and practices in the first place.

While all can hope that only the most sincerely-held beliefs will form the basis of any legal defense based on the free exercise of religion, it is not hard to imagine that creative litigants may attempt to fashion any number of things into a religious practice dictated by conscience.  Those issues would likely be incapable of resolution except through litigation.

The U.S. Supreme Court, in the Hobby Lobby decision, reiterated that “it is not for us to say that their religious beliefs are mistaken or insubstantial.  Instead, our ‘narrow function . . . in this context is to determine’” whether the belief “reflects ‘an honest conviction”’ held.  Hobby Lobby, 573 U.S. at 725 (quoting Thomas v. Review Bd. of Ind. Employment Security Div., 450 U.S. 707, 716 (1981)).  But litigating that question, because of the prevailing Free-Exercise standard under Smith, was rarely necessary because many cases could be handled at the pleading stage.  But under Vlaming, the credibility of the religious claim by the litigant will become more closely scrutinized, and this issue will be fodder for discovery and trial.

Recently, the EEOC, driven in large part due to religious objections to COVID-19 vaccine requirements by employers, issued updated guidance that suggested employers should generally accept the sincerity of employees’ claimed religious beliefs.[8]  Indeed, inconsistent practices or newly adopted beliefs are not necessarily disqualifying, nor is there any requirement that the religious belief be held by a traditionally recognized religion—or even by anyone else at all.  This guidance may well become persuasive authority for Virginia courts, though the question remains unclear under the VHRA or for free-exercise claims under the Virginia Constitution.

IV. Conclusion

Vlaming is the law in Virginia for the foreseeable future.  Because it is of constitutional dimension and interpreting the Virginia and not U.S. Constitution, it will not be modified unless there is (1) a decisional change by the Supreme Court of Virginia, or (2) a constitutional amendment.

As discussed above, for citizens, businesses, organizations, and government entities, this decision has significant implications.

Fundamentally, the Supreme Court of Virginia established a super strong and protective right for religious belief and practice—in a way largely untested in Virginia—and so it opens a new chapter for Virginia rights-based litigation.

For employers, look closely at your policies for handling religious accommodation requests and make sure they are updated (this is also true as a result the U.S. Supreme Court’s decision in Groff).  Having updated written procedures whereby an employee documents a particular religious-based request will be important to evaluate requests and to protect against potential claims of religious-based discrimination.

Businesses, organizations, and individuals should also consider whether there are opportunities to use Vlaming to their advantage.  Few may want to go out and test the waters themselves, but a big tool to limit government authority in Virginia has been provided—it is worth considering how to use it to best advantage.

For state and local government entities, get ready for this issue to be at your doorstep soon.  Consider now your process for religious-accommodation requests.

Finally, Vlaming may indicate a Supreme Court of Virginia that is less deferential to the elected branches and embracing a more active role in deciding cases with policy implications.  Vlaming is a bold decision that pulls no punches.  The ideological split on the Court is exposed in this decision, and there could be more 4-3(ish) decisions ahead on other issues implicating the Virginia Constitution.  And if the decision signals a larger willingness to wade into the culture wars, the Court may find itself as counter-weight to the elected branches that are becoming more liberal politically.  That is not a role the Supreme Court of Virginia has typically played, but is one it may find itself in, in applying the Vlaming test to numerous laws and policies by state and local governments.

Those cases are on the way, no doubt.

[1] The exact pagination of the case in the Southeast Reporter was not available at the time of publication; therefore, citations to the case are to the slip opinion available here.
[2] Compare:

[3] As the Decision points out, Smith was an incredibly controversial decision, prompting rebuke from Left and Right, at the time, and leading to the Religious Freedom Restoration Act.  Decision at 11-12.
[4] The focus of this article is on the implications of the free-exercise part of the Decision.  While the free-speech analysis is also important to the case, it will likely not have as broad an impact since “free speech” is generally only applied as against government actors and not private businesses or organizations.  As explained below, there are more implications where religious practice is involved given the protections of various antidiscrimination laws against religious-based discrimination.
[5] See https://www.gentrylocke.com/article/virginia-values-act-poses-significant-legal-risks-to-virginia-employers/.
[6] An interesting case to watch is Kluge v. Brownsburg Community School Corporation, a case in Federal Court in Indiana with similar factual allegations as the Vlaming case.  The Seventh Circuit has sent the case back to the Southern District Court in Indiana to evaluate following the new test announced by the Court in Groff.
[7] See FN 33 of proposed Guidance.
[8] See What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws, EEOC (Updated May 15, 2023), available at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov).  (Answer to Question L.2. provides guidance on evaluating whether a particularly belief qualifies as a sincerely held religious belief).