(Posted December 14, 2023) Christmas comes a week and a half early for courtwatchers at Ninth and Franklin. The Supreme Court of Virginia hands down three published opinions this morning, including a decision in the oldest undecided appeal on its argument docket.



Today the Supreme Court of Virginia joins the ranks of courts that must confront an important sociological issue: how we should address transgender people, in this instance in the public-school context. In Vlaming v. West Point School Board, the justices evaluate a claim by a high-school French teacher who was fired by the school division for refusing to use a student’s preferred pronouns. Today’s majority and concurring/dissenting opinions run to 143 pages, so it’ll take me some time to read through them and post analysis; I’ll update this essay as I go along.

Late in a recent school year, one of the teacher’s students let him know of a planned gender-identity transition from female to male. The teacher claimed in the eventual lawsuit that sincere religious beliefs barred his use of what he regarded as misgendered pronouns. The teacher accordingly settled on what he felt was a suitable workaround: No pronouns at all, for any of the students in the class. Each student was permitted to select a class name – presumably in French – and discussions in class used those names instead of pronouns.

That wasn’t good enough for the student’s parent, who demanded that the teacher use a specific pronoun. When the teacher refused, the school’s administration warned him repeatedly. The school board eventually fired him for refusing to adhere to its nondiscrimination policy.

The teacher sued, claiming a violation of his rights under the Virginia constitution’s guaranty of freedom of religion. His lawyers intentionally chose not to sue under federal law, probably fearing a speedy dismissal based on SCOTUS’s ruling in Employment Division, DHR of Oregon v. Smith from 1990. That ruling had subordinated employees’ religious beliefs to generally applicable law. (The subject there was the use of peyote, a controlled substance, by Native Americans in their religious observations.)

The past few years have convinced me that Smith has one foot on reversal and the other foot on a banana peel, and will be reversed just as soon as the US Supreme Court’s current majority can get its collective hands on a suitable vehicle for it. The teacher’s lawyers decided not to tackle a climb like that; they took the path of lesser resistance at the time, claiming in this action that Virginia law gives individuals more religious protection than does its 1791 cousin from across the river.

The school board filed a demurrer and plea in bar in response to the suit. After a hearing, the King William County Circuit Court sustained the demurrer and the plea and dismissed the action. A Supreme Court panel awarded the teacher an appeal early in March 2022; the full court received oral argument on November 1 of that year.

If you’re counting months now, I’ll hasten to add that you’re right: November 1 was a long time ago. The modern SCV cranks out most of its opinions within a couple of months of the oral-argument date; a few stretch to the 15-to-18-week range; a tiny fraction take more than half a year. This is the longest of them, and there’s no doubt why: The issues in this case are highly complex, and the justices likely feel a special responsibility to get this one right. This case arises solely under Virginia law, so Those Other Robes won’t get a crack at it; because of the way the teacher’s lawyers shaped the pleadings here, the Supreme Court of Virginia is the court of last resort for this case.

In resolving this case, the court divides. Justice Kelsey pens the majority opinion. He concludes that the teacher states a claim for which relief can be granted. The school board, in his view, sought to compel speech with which the teacher disagreed. The majority holds that this approach fails strict scrutiny; we aren’t dealing with a looming breakout of civil disorder here.

And the burden to justify compelled speech is, the court rules, greater in the educational context. The majority specifically addresses that context in rejecting the school board’s argument that it had the power to regulate his on-the-job speech.

The court also resolves the teacher’s claim that he was fired without due process. The majority’s framing of the issue is all you need to understand its reasoning:

Vlaming alleges that the School Board based its termination decision upon two written policies that neither expressly nor implicitly required teachers to use third-person pronouns, in addition to preferred names, for transgender students. Dismissing this claim on demurrer, the circuit court held as a matter of law that any ordinary person would have known that these policies forbade Vlaming’s nonuse of pronouns and authorized his termination as the price of his silence. We disagree.

As noted, today’s ruling is not unanimous. Justice Powell pens a short concurrence, joined by the chief justice, in which she emphasizes that the government’s right to impair religious freedom is not limited to addressing “overt acts against peace and good order.” This language comes from a statute, not the constitution, and the concurring justices perceive that the constitutional provision affords governments more latitude.

The same two justices join (in part) a far more fulsome dissent by Justice Mann. The dissent begins with this moving passage:

The issues before us today raise the most delicate human questions of religion, liberty, individualism, and the proper conception of these rights in a society which holds divergent views on the meaning of each. Today we have done little to harmonize this divergence. Now, Virginia stands alone among every jurisdiction in this country by imposing a new level of scrutiny; a super scrutiny for religious rights but no others.

If you’re up on your First Amendment, you’ll recognize the subtext here: The dissent perceives that the court’s resolution of this appeal violates a different provision, the Establishment Clause. Courts have long noted that there’s “play in the joints” between these two provisions, which tend to cut in opposite directions. I’ve reported here in the past couple of years my sense that the Establishment Clause has been getting its clock cleaned in recent SCOTUS decisions; the Free Exercise Clause is rampant and shows no sign of losing its dominance.

The dissent is also a partial concurrence; it agrees with the majority’s rulings on the teacher’s free-exercise and breach-of-contract claims. In that sense, the court today unanimously sends the case back to circuit court for trial. The two sides part company over claims under the Commonwealth’s religious-freedom constitutional provisions, plus those claiming free-speech and due-process violations.

The dissent perceives this ruling as opening the door – or to use its metaphor, the gate – to a form of religious tyranny of the minority, or even of a single citizen. The majority’s expansive reading of the Virginia constitutional provision will, in the dissent’s view, enable individuals to force the government to yield to an individual’s religious views, on pain of a free-exercise violation.

Both sides of this juristic debate employ sweeping language taken from our founding documents – most notably the Virginia and United States Constitutions – to justify their conclusions. Both dive into the deep end of our Commonwealth’s and our nation’s legal history. As a result, today’s opinions are long – 143 pages in all. Given that length, I have necessarily truncated this analysis; otherwise you’d be reading a 25,000-word essay that might take you the better part of your workday to read through – and that’s just the first time. If that interests you, the slip opinion is just a mouse click away.

This appeal is, in one sense, the ultimate appellate outlier. The parties argued it 13½ months ago, easily the longest delay between oral argument date and decision date in our lifetimes. The last time anyone saw such a delay was probably in the Civil War; but I don’t have access to the court’s Nineteenth Century oral-argument dockets to check.

When you read today’s release, you’ll see that there was a reason for the lag. As usual, the authors of the majority and dissenting opinions have exchanged drafts, likely multiple times, allowing each to address the other’s arguments. It is an extremely thorough job, on both sides; both opinions are beautifully composed. And of course, both observe the SCV tradition of courtesy to the other, something that’s often cast aside in decisions from One First Street. We in Virginia got the better end of that deal.

I noted one significant divergence in the wording of today’s opinions. The majority effectively adopts the teacher’s workaround on pronouns, by never using one to refer to the student. It uses pronouns liberally in referring to the teacher; but the student, identified as “John Doe,” is always Doe in the majority. In the dissent, Justice Mann uses masculine pronouns – the student’s choice – consistently.


Criminal procedure

Lest we become swept up in today’s major news item, we have more. In Commonwealth v. Delaune, the justices resolve a dispute over the revocation of a suspended jail sentence.

After convictions for multiple drug offenses, Delaune received two years of active incarceration with the compliments of a learned Virginia Beach Circuit Court judge. It could have been worse: The full sentence was six years, but the court suspended four. It imposed the usual conditions of release, notably obedience to laws, and added a special condition that she remain drug-free.

Alas; the boon of lenity meant too little to her. Shortly after her return to liberty, she overdosed on drugs. It didn’t kill her, of course; but it did earn her a revocation hearing. Before that hearing, she bolted, leaving her probation officer in the dark as to her whereabouts. Law enforcement officers eventually caught up with her.

While the revocation proceedings were underway, the legislature amended the relevant statute to liberalize the treatment of defendants in Delaune’s position. The new rules forbade a court to impose active incarceration for a single instance of what they call a technical violation. Using drugs and absconding on parole are technical violations, though by statute, they’re treated as two such violations.

The circuit court reimposed the sentence and resuspended all but 60 days of it. Thinking that that sentence was too harsh, Delaune appealed and found succor in the Court of Appeals. That court ruled that the maximum available period of incarceration here was 14 days. Today the Supreme Court agrees and affirms.

One aspect of this decision is especially noteworthy. Although the statutory change hadn’t quite kicked in as of the date of the revocation hearing, the Commonwealth’s Attorney agreed to treat it as though it were in effect. The parties can do that, by statute. In the Court of Appeals, the Attorney General stepped in and repudiated the local prosecutor’s agreement, contending that the Code amendment shouldn’t apply retroactively.

Nonlawyers will have a hard time understanding this, but the AG can do that. Despite a clear agreement by the Commonwealths Attorney, the AG can shrug off the agreement and proceed more harshly. Today’s opinion explains that away by citing earlier cases holding that the AG and the CA are separate officers, and the AG can repudiate – or at least isn’t estopped by – an agreement made by his predecessor.

Today, however, the Supreme Court rules that that doctrine doesn’t apply here. The mutual-consent statute allows the local prosecutor to make an election, and allowing the AG to sweep an agreement aside would effectively nullify the statute.

Justice Chafin pens today’s opinion for a unanimous court.


Today’s third ruling is a habeas case, Schmuhl v. Clarke. The petitioners was convicted of several crimes stemming from a home-invasion robbery with aggravated malicious wounding. His trial lawyers planned to offer a defense that he was, at the time of the offense, “suffering from an acute medication induced delirium at the time of the home invasion and, therefore, he was unable to understand the nature, character, and consequences of his actions.” They hired a psychiatrist and a psychologist to testify at trial that a combination of medications led to involuntary intoxication.

The prosecution read this as notice of an insanity defense. It accordingly requested information about the prospective experts and no doubt planned to have the defendant examined by its own expert.

The defense lawyers anticipated this. They also recognized that there’s a big difference between being found not guilty by reason of insanity – which results in a period of psychiatric confinement – and a finding of involuntary intoxication. They therefore told the circuit court that they weren’t offering insanity.

The judge metaphorically shrugged and said, “Your call” before convening the jury trial. During that trial, the court heard a proffer of the experts’ testimony and decided to exclude it. The jury got the defendant, and the Court of Appeals and Supreme Court affirmed a few years back.

The defendant’s next step was this habeas claim, alleging that his trial lawyers didn’t properly understand the contours of the distinction between insanity and involuntary-intoxication defenses. The same judge who presided in the criminal trial handled the habeas case; he refused the petition, holding that the lawyers knew what they were doing and simply made an understandable tactical decision. If that approach had worked, it would have bestowed upon the defendant a bountiful set of benefits.

Today, in a unanimous opinion written by Justice Powell, the Supreme Court affirms. Viewing the lawyers’ actions without “the distorting effects of hindsight,” the justices conclude that the habeas petition hasn’t “overcome the strong presumption that his trial counsel’s conduct fell ‘within the wide range of reasonable professional assistance.’” The lawyers carefully researched the law and chose a course of defense that offered their client a legal home run if it succeeded. The fact that it ultimately failed doesn’t make their assistance ineffective.

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Today’s release of Vlaming means that all of the decisions in the Supreme Court’s 2022 argument dockets are now, at long last, in the books. Schmuhl finished off the five cases argued in the September 2023 session, and Delaune is the second decision to come down from the November session; there are four more left. We have two more Thursdays in 2023; two more potential opinion days to (possibly) add to the year’s bounty of decisions.