McPhee: When Free Exercise Comes at a Price

By Alexandra M. McPhee

This day and week mark the 233rd anniversary of Virginia’s act for religious freedom, in which members of the 1786 General Assembly declared that “our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry.” Can we still say the same today?

If you were to ask those members about the case of Peter Vlaming, they would probably say, in so many words, “West Point School Board should check its definition of the free exercise of religion.”

Peter Vlaming taught French at West Point High School. The school administration required that he use male pronouns to refer to a student who underwent a gender transition. Vlaming would refer to the student by her new name, but he would not use the male third-person pronoun because it would be contrary to his Christian faith. West Point School Board fired Vlaming as a result, and as he aptly descibed it, for what he has not said.

Sound unfair? As it turns out, it is contrary to the principles of free religious exercise and free speech, too.

The Constitution of Virginia states “all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities.”

Here, the school board did just that by firing Vlaming from a position he held for almost seven years because his religious convictions counseled him to refrain from uttering language that denied his understanding of God’s natural order.

The decision also contradicts the act for religious freedom. Subsequent amendments protect the free exercise of religion from any “substantial[] burden” by the government on that exercise, absent a “compelling government interest” achieved by “the least restrictive means.” Vlaming said he would be willing to use the student’s new name. But the school administration demanded more than this, and it thus demanded more than was necessary to achieve its end.

For good measure, the decision goes against the First and Fourteenth Amendments of the U.S. Constitution, too, because the school board fired Vlaming for refusing to utter what amounted to government-compelled speech.

Whatever lens through which one decides to view this case, it shows that the school board failed to see beyond its ambiguous definition of “discrimination” and overbroad pronouncement that calling a student by his or her name alone creates a “hostile learning environment.” And when the school board disregarded Vlaming’s religious objections, it “intruded [its] powers into the field of opinion . . . which at once destroys all religious liberty,” which the 1786 General Assembly explicitly sought to avoid.

It is a transgression from a governmental entity with the power to give or take a man’s job based on an ill-defined policy against “discrimination” on the basis of gender identity. It is “discrimination” that produced “a hostile learning environment” not because of Vlaming’s disparate treatment in grading or the threat of physical violence against the student, but because of Vlaming’s failure to use a third-person pronoun that, for Vlaming, would be affirmation of a belief about biological sex contrary to his faith.

One cannot overlook the far-reaching implications Vlaming’s case has for all Virginians of faith employed by government entities or by private entities that are considering similarly undefined policies.

Though the Constitution’s provisions would remain, the 1786 General Assembly knew that a future legislature could undo its statutory religious-freedom protections. But it made clear that “Almighty God hath created the mind free” and that religious liberty and its attendant rights are “the natural and unalienable rights of mankind.

This day, we should commit to uphold the Commonwealth’s religious-freedom protections—not abandon them.

Alexandra M. McPhee is Director of Religious Freedom Advocacy with the Family Research Council.