Free Exercise, History and Tradition, and Preferred Pronouns: Key Takeaways from Vlaming v. West Point School Board

High school French teacher Peter Vlaming was fired from his job in West Point, Virginia, for declining to refer to a female student using male pronouns. Vlaming filed suit in state court, alleging that the school board had violated his rights to the free exercise of religion and free speech under the Virginia Constitution. Late last year, the Virginia Supreme Court held that the Virginia Constitution provides more robust protections for religious freedom than the federal Free Exercise Clause as interpreted in Employment Division v. Smith. As the Court wrote, “the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain.” In its place, the Virginia Supreme Court adopted a history-and-tradition approach that asks whether the religious claimant has committed or is seeking to commit “overt acts against peace and good order,” and whether the government’s interest in negating that threat could be satisfied by “less restrictive means” than denying a religious exemption. This opinion raises a host of interesting questions: Will the U.S. Supreme Court’s history-and-tradition test for Second Amendment challenges be expanded to apply to other constitutional rights? Will other state courts follow the Virginia Supreme Court’s lead in applying it to their own state constitutions? Did the Virginia Supreme Court get its history right? Could its historical analysis serve as the basis for the U.S. Supreme Court to revisit Smith? What rights should public schoolteachers have in the classroom? Should courts resolve conflicts between the alleged free-exercise and free-speech rights of teachers and the alleged rights of students to engage in their own forms of self-expression? Finally, what role, if any, does Title IX play in the analysis? This panel will address these and other questions raised by this important decision.
Featuring:

Prof. Stephanie Barclay, Professor of Law, University of Notre Dame Law School
Prof. Kate Carté, Professor of History, Southern Methodist University
Chris Schandevel, Senior Counsel, Alliance Defending Freedom's Appellate Advocacy Team
Adam Unikowsky, Partner, Jenner & Block LLC
(Moderator) Eric Treene, Senior Counsel, Storzer and Associates; Adjunct Professor at the Catholic University of America Law School