Legal Docket: No coercing speech

MYRNA BROWN, HOST: It’s Monday the 30th of September.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Myrna Brown.

NICK EICHER, HOST: And I’m Nick Eicher.

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Because it’s time now for Legal Docket!

AUDIO: Please call the first case. Vlaming versus West Point School Board, et. al.

EICHER: Two years ago, a man named Peter Vlaming had a lawsuit that went all the way up to the Supreme Court of Virginia. But four years before that—he was a schoolteacher. He taught French at West Point High School, about 40 miles west of Richmond, Virginia.

At the start of the 2018 school year, a female student in Vlaming’s French Two class announced she was adopting a new identity as male. The student was also changing her name and “she” wanted to be referred to as “he.”

BROWN: As a Christian, Vlaming understands that sex is fixed, established by the Creator. Meaning he couldn’t in conscience refer to a young lady as a young man.

So, the French teacher decided to avoid the use of pronouns altogether for everyone in class. He would use the student’s preferred name instead. But, the school told him that wasn’t good enough. Vlaming had to use male pronouns or be fired. And when he refused, that’s exactly what the school board did.

EICHER: So he sued—asserting free-exercise, free-speech, and due-process claims under the Virginia Constitution. He also claimed breach of contract while seeking protection under the Virginia Religious Freedom Restoration Act. Round one he lost. That was in the trial court.

BROWN: But on appeal to the Virginia Supreme court, he won. His case was reversed and remanded for trial with a unanimous bench in agreement. Not only that: a majority wrote what’s known as a virtuoso opinion on religious freedom and freedom of speech under Virginia law.

That means it’s an opinion that just might set precedent for future cases like this.

EICHER: Today, you’ll hear directly from Vlaming and his lawyer on why they think the case is so significant.

Here’s WORLD legal correspondent Jeff Palomino.

JEFF PALOMINO: I’d wondered if Vlaming was prepared for what happened to him back in the fall of twenty-eighteen.

PETER VLAMING: I was, I would say, relatively aware of cultural changes, just kind of across the board in the United States and in the West in general. But no, I can't say that I had a game plan going in.

But he needed a game plan, so he made one. Vlaming believes first names don’t necessarily designate someone’s sex. Pronouns are different.

VLAMING: I went as this was unfolding, like, okay, I can call my student by this new chosen name, but I'm not going to use male pronouns to refer to her, but I’ll avoid using female pronouns when she’s present.

Vlaming explained the plan to school administrators, but they weren’t having it. They told Vlaming he was required to use male pronouns, and not only in the classroom but also “in any and every context” at the school.

VLAMING: … and they insisted that, no, no, we need to hear you proactively using masculine pronouns, even when students aren't present. Even if it's just us in this office, you're going to be liable of being fired if you don't refer to the student as he…

Eventually, his superintendent stepped in.

VLAMING: Finally, an ultimatum was given me by the superintendent that insisted on this and also said that if we, in so many words, if we think that you're not, if we think that you're substituting the student's new name when you could be using a third person pronoun, that will also be grounds for your termination. And so, seeing, how can I put it? You know, the walls were closing in, you know, I wasn't going to get out of this.

Vlaming had a wife and four small children. Some people advised him to go along to get along. To Vlaming, the school’s hard line only made his decision clearer.

VLAMING: To put it bluntly, I was being asked to say and to promote something that was just fundamentally untrue. And it's one of those moments where the rubber really does meet the road. It’s, like, okay, do I really believe this? Am I really willing to follow Christ, even when it hurts? Because for me, either I was going to participate in a huge lie that was actually kind of coming over our culture, or am I going to be set apart? So, so, what do I do? Is this a hill worth dying on? And for me, it clearly was.

One of Vlaming’s lawyers is Tyson Langhofer with Alliance Defending Freedom.

TYSON LANGHOFER: We had a number of claims on behalf of Peter we filed, these were in Virginia state court, they were state claims … And essentially they all boiled down to this one claim that we believe that the Virginia Constitution prohibits the government from compelling its citizens to speak things that they disagree with, that violate their religious beliefs, and so that in doing so, they would violate the Free Exercise Clause, the freedom of religion clause, and would also violate the freedom of speech clause…

Even though the free exercise clause in the Virginia Constitution existed before the U.S. Constitution, this was one of the first times the Virginia Supreme Court had interpreted it. The school board argued the clause only protected religious beliefs…not religiously motivated activities.

But the court didn’t buy it. Here’s Langhofer quoting the majority opinion by Justice D. Arthur Kelsey.

LANGHOFER: 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. And they go on to say that we “recognize that the right to exercise one's religion, if it means anything, includes the right to speak or not speak and to act or not act based upon one's religious, sincerely held opinions or beliefs.”

Going further, the majority opinion applied strict scrutiny analysis to what the school board wanted to do. That’s the highest standard of review. It means the government must show a compelling interest and use the least restrictive means to enforce that interest.

LANGHOFER: And clearly, in this case, that was not the case. In fact, Peter had said, “Look, I'm willing to accommodate. I will modify the way that I teach my class. I will modify my language. I just can't modify it in a way that violates my religious beliefs and says something that's untrue and that would be harmful to this student.” And the court clearly said, look, the government has other options, they didn’t have to force Peter to use those words, in fact as Peter said, they were trying to force him to use the pronouns outside of the student’s presence.

As to Vlaming’s free speech claim, the court ruled the state constitution prohibits the government from stopping a person from saying something, and also prohibits compelling a person to say something with which he disagrees. One wrinkle is that Vlaming was a government employee and a school can control what a teacher says to some degree. For example, a teacher has to teach the curriculum.

But that’s not why the school board fired Vlaming.

LANGHOFER: Peter was not speaking pursuant to his official duties. In fact, he wasn't even asking to speak, he was asking not to speak, and this wasn't going to affect his ability to teach the French language. It didn't interfere with that at all.

The Court’s opinion is binding on all Virginia School districts, but how consequential is it outside Virginia?

LANGHOFER: We think it’s very consequential. And it’s going to have an impact for sure. But it’s also having an impact nationwide. We have other cases pending in other states, right now in federal court under the federal constitution, and in fact, a judge just cited Peter's case in a decision out of Ohio, even though it's not binding, but it cited it for the analysis of, you know, these, these rights.

In the time since Vlaming was fired, the West Point school district has changed its policy. Langhofer describes the new policy as one “that protects the rights of teachers.”

LANGHOFER: When other schools see that schools can adopt this and they can protect the rights of teachers and also protect the rights of students, I know that a lot of other schools are going to do that.

Today, Vlaming lives in France with his family and works for a Christian publisher. In the face of pressure to conform, he stood up and prevailed in one of the first cases of compelled pronouns in this country.

So how does Vlaming want to be remembered?

VLAMING: [LAUGHING] It's funny because right away I'm thinking, I don't want I don't want to be remembered. I don't want fame. I want to be remembered by the Lord and have a recompense when I see him again, when we see him again…

Vlaming hopes what he did helps others to live not by lies, but by courage…to lovingly, but firmly, say “no.”

VLAMING: If anything, if people could think, hey, there was a teacher, I think he was in Virginia. He did not go along with this. You know, he stood up for freedom of speech, freedom of expression, freedom of religion and, and he came out the other side. You know, I hope that the courage that God gave me would beget courage in others.

And that’s this week’s Legal Docket. Reporting for WORLD, I’m Jeff Palomino.

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