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

Marco Lloyd: Hello everyone and welcome to this Federalist Society Virtual Event. My name is Marco J. Lloyd and I'm an Assistant Director of Practice Groups for the Federalist Society. Today we're excited to host a FedSoc Forum webinar, "Free Exercise, History and Tradition, and Preferred Pronouns: Key Takeaways from Vlaming v. West Point School Board" featuring Stephanie Barclay, Kate Carté, Chris Schandevel, and Adam Unikowsky. Our moderator for this panel today is Eric Treene. Mr. Treene is Senior Counsel at Storzer & Associates in DC and an adjunct professor and fellow at the Catholic University of America. If you'd like to learn more about today's speakers, their full bios can be viewed on our website, fedsoc.org. If you have a question at any point in today's program, please enter it into the Q&A function at the bottom of your Zoom window and we'll do our best to answer as many as we can. Finally, I'll note that as always, the Federalist Society takes no position on particular legal or public policy issues and all expressions of opinion are those of the speakers. With that, Mr. Treene, thank you for joining us today and the floor is yours.

Eric W. Treene: Great, thank you, Marco. I think today should be a very interesting discussion both about the immediate issue, which is popping up around the country, but also the implications of this Supreme Court of Virginia decision for free exercise in Virginia and other states and in the federal courts. So I'm really looking forward to this. We have four esteem panelists. The first speaker will be Chris Schandevel, who actually argued this case before the Virginia Supreme Court. He's senior counsel at Alliance Defending Freedom on their appellate advocacy team, and before joining ADF, he was Assistant Attorney General in the criminal appeals section of the office of the Attorney General of Virginia, and he clerked for honorable Steve McCullough on the Court of Appeals of Virginia. Second, we'll hear from Adam Unikowsky. He's a partner at Jenner & Block in their appellate and Supreme Court practice group. He was a law clerk for Judge Douglas Ginsburg of the US Court of Appeals for the DC Circuit, and then for the late Justice Antonin Scalia. Third, we'll hear from Catherine Carté to give us a historical perspective. She's professor of history at Southern Methodist University and she's the author most recently of the book Religion and the American Revolution and Imperial History published by University of North Carolina Press. She's currently studying the role of religion, trust and partnership in revolutionary era Savannah, Georgia. And finally we'll hear from Stephanie Barclay who just joined Georgetown Law School as a professor of law and faculty co-director of the Georgetown Center for the Constitution, and until just a few weeks ago, she was professor at Notre Dame Law School. Her research focuses on free speech and freedom of religion, among other things. She clerked for Judge Randy Smith on the US Court of Appeals for the Ninth Circuit and Justice Neil Gorsuch on the US Supreme Court. So Chris, please set the stage for us. Tell us about this case.

Chris Schandevel: Thanks, Eric. Happy to do that. And I just want to start by saying it's a privilege of mine to be here to talk about this case, a case that's very important, near and dear to my heart. Having argued the case and getting to know Peter Vlaming the plaintiff in this case personally. Also, it's just I'm excited to talk about what is really a landmark victory for religious freedom and for free speech here in Virginia in a case that we believe could pave the way for similar landmark rulings in state supreme courts across the country as they interpret their own state constitutions and possibly even for the US Supreme Court as it considers what to do with the test from Employment Division v. Smith and how to apply the new history and tradition test that the court has been applying in the Second Amendment context, possibly in the Free Exercise Clause context. So I do want to start just by laying some of the groundwork by telling the story of Peter's case. For those who aren't familiar with his story, Peter was a high school French teacher at West Point High School for about six years. He was passionate about teaching, he was passionate about his students, he was passionate about the French language and teaching was really a lifelong dream of his and something that he planned to spend his career doing. Unfortunately, all of that came to an end when his school board fired him, not for something that he said and not for something that he did, but for something that he couldn't say and specifically what he could not say is he could not express the view that a biological girl could become a boy. And so when his school demanded that he use male pronouns to refer to a biologically female student, he said, listen, I'm happy to use the students' new preferred name. He even went out of his way to allow all of his students to choose new French names for the semester so that there was no extra attention drawn to the student. He said, I'm happy to avoid the use of pronouns altogether in reference to this student, but what I can't do is affirmatively speak messages that communicate an idea that I don't believe so I can't affirmatively use pronouns that are not biologically correct, and the school board said, well, that's not good enough for us and so they fired him, which effectively ended his teaching career. So in many ways, this is a case about compelled speech, but it's also a case about free exercise of religion because Peter's position on this issue is informed by his religious beliefs about how God created us all male and female and how sex is immutable and is given by God. And so when we heard about Peter's case, when he connected with us and asked us to take up his case, we saw a couple things. First of all, we saw just the injustice and the unfairness towards Peter that he was willing to accommodate this student to the best of his ability and asked his school board for a reasonable accommodation of his religious beliefs and was not granted any accommodation of his beliefs. But secondly, we also saw an opportunity in Virginia to break some new ground and to ask the Virginia appellate courts to define the scope of Virginia's constitutional protections for the free exercise of religion. And that is something that you would expect given that Virginia is really the birthplace of religious liberty. Our Constitution, our Declaration of Rights predate the Federal Constitution and Federal Bill of Rights. You would think that there'd be a robust amount of case law fleshing out the full scope of Virginia's constitutional protections for free exercise. But as we looked at the case law, that really wasn't there. So we thought this would be an opportunity to present the court with an opportunity to hold one, that Virginia's constitutional protections for religious freedom are not coextensive with the federal Free Exercise Clause, and two, that Virginia's protections are more robust than the watered-down version of free exercise rights that we get after the US Supreme Court's decision in Employment Division v. Smith. So we brought Peter's case in state court all under the, but all of our claims under the state constitution, free speech, free exercise, and a due process claim, and we made that argument - that Virginia's constitutional protections are more protective than the federal right under Employment Division v. Smith. And so we really did a deep dive into Virginia's history on religious freedom - if I can make a quick plug for a book recommendation, John Ragosta, formerly a law professor at UVA also did some work at Monticello, he wrote a book entitled "Wellspring of Liberty: How Virginia’s Religious Dissenters Helped Win the American Revolution". We drew a lot on his book and kind of fleshed out some of the history. This is one of the few cases where as a litigator, I've actually purchased a stack of books online and read cover to cover and tried to do some of the historical research. So we made our case in our briefing. I had the privilege of arguing the case before the Virginia Supreme Court in November of 2022. And then we waited over a year, which I understand is a modern record for the Virginia Supreme Court to issue a decision in a case that's been argued, until December 14th, 2023 when we got an opinion from the court ruling in favor of my client in favor of Peter Lambing and holding as we were asking the court to hold that the Virginia Constitution's protections for free exercise are not coextensive with the federal free exercise right, that really the federal courts ought to be looking to Virginia and Virginia state constitutional protections to determine what the federal Free Exercise Clause means and not vice versa, and then holding secondly that based on an original understanding of Virginia's protections for religious freedom, that the original public meaning of the language included in Virginia's provisions would have required at least some exemptions from mutual and generally applicable laws. And so Employment Division v. Smith is not the law in Virginia under Virginia's constitutional protections and is not going to be the law in Virginia going forward. And the majority opinion is a 73 page majority opinion. I will not attempt to go through page by page this afternoon, obviously not possible. I would just encourage those who are watching and those who are listening to read the opinion. It's at 895 S.E.2d 705. You can also find it pretty easily - the slip opinion -online. It really does three separate things. It's really on free exercise. So it's part kind of a magnum opus on the history of religious freedom here in Virginia. It's part a defense of originalism and the history and tradition test for interpreting the Constitution, and it's also part a defense of state supreme courts defining their own state constitutional provisions independently from their federal constitutional counterparts. And so it really is a great opinion that breaks a lot of new ground in Virginia, but also lays some groundwork for other state supreme courts, like I said, and also for the US Supreme Court to maybe look at and draw some things from, especially in the free exercise context. So just to hit a couple of high points from that majority opinion, the majority looks at the text and the history of the free exercise provisions in Virginia and notes that Virginia's free exercise provisions are truly much broader and more robust. If I tried to read them all right now, I would run out of my allotted time because it's a very lengthy provision. So whereas under the federal free exercise right, you have, it's called the Free Exercise Clause for a reason. It's just a clause. Virginia starts off by saying, "That religion or the duty, which we owe to our creator and the manner of discharging it can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion according to the dictates of conscience." And it goes on from there, there's a full nother paragraph beyond that. So textually it's much more robust, right. And then historically, just looking at some of the debates between George Mason and James Madison, for example, here in Virginia, not only as to the language that was ultimately adopted, but as to what limiting principles are going to be included within that language, it is clear just from the fact that that debate was occurring, and this was according to the majority, that there was an understanding that this protection was going to protect and require religious accommodations and religious exemptions even from at least some neutral and generally applicable laws. Otherwise there would be no reason to have this debate over what those limiting principles are. So the Virginia Supreme Court again accepted the position that the right is broader and it's more protective than Employment Division v. Smith reads the federal Free Exercise Clause to be. And then just looking from there as to possible implications going forward from that majority opinion, of course in Fulton, Justice Barrett and Justice Kavanaugh wrote separately to express the view that well, we're personally not convinced that Employment Division v. Smith is correctly decided, but we're still a little undecided as to what should replace it and if it is going to be some form of strict scrutiny, what form of strict scrutiny will it be? And what the majority opinion says in this case in planning is that it is a form of strict scrutiny, but it's a form of strict scrutiny, as the framers of Virginia's constitution would've understood it, that defines a compelling state interest narrowly based on history. So it's a history based strict scrutiny approach. And the specific language that the majority draws from is this language from Thomas Jefferson's bill for establishing religious freedom that says there's "Only when religious principles break out into overt acts against peace in good order, only then does the government have a compelling interest in infringing upon that right to free exercise." And so we at ADF were very excited about the opinion obviously, and believe it was rightly decided. And we're excited to see where courts might go with it from here and whether the US Supreme Court might be interested in looking at the test the Virginia Supreme Court adopted and doing its own constitutional interpretation under the federal Free Exercise Clause.

Eric W. Treene: Great. Well, thank you Chris. Adam, what's your response to the decision and your thoughts about it?

Adam Unikowsky: Sure. So first of all, thanks to the Federalist Society for inviting me today, and of course, congratulations to Chris on a sensational victory in the Virginia Supreme Court. I think you're absolutely right that it'll transform religious liberty litigation, certainly in Virginia, but potentially also in other courts who may be open to being persuaded. It's the noble tradition of the Federalist Society to provide a forum for the free exchange of ideas. And so in that spirit, I'd like to provide some respectful pushback on the court's decision and express some reasons why maybe I'm not completely on board. So the facts of this case are a little different from the typical religious liberty challenge that's brought. So first of all, it's a neutral and generally applicable law that has been discussed. It doesn't target religious practice or the members of a particular religion, and it's not a law that imposes civil or criminal penalties for failure to comply. It's not like a covid church closure order or something like that. It imposes conditions on public employment. It says that if you want a government job and want to accept a government salary, then you'd have to adhere to certain government policies. But the government policies at issue don't regulate employees when they're off the clock. There's no loyalty oath. It doesn't prevent people from expressing their views or exercising their religion when they're not at work. It's laser focused, the policies at issue, on how public school teachers do their jobs, and it's how they do their jobs in the classroom at a public school, which is an institution designed for people from all backgrounds and people who don't even necessarily want to be there. Some people don't want to go to school. They go because they have to. And so they go to this institution that forces them into it and is designed for people from all different backgrounds in a pluralistic society that we have. And so the plaintiff's claim in the case boils down to the view that Virginia's Free Exercise Clause guarantees 'em the right to maintain public employment and receive salary funded by taxpayers while refusing to follow the policies that regulates how he interacts while he's on the clock with students in public schools who may have different religious or philosophical views. All I can say is that times have changed because I think that 20 years ago, probably the only judge who would've bought this type of argument is Steven Reinhardt, maybe not even him, but I think that the political valence of many issues has shifted. Of course, the Smith's case was famously written by Justice Scalia and on the free speech side, Garcetti v. Ceballos, the key free speech case from the Supreme Court, US Supreme Court in this area, a case holding that official speech while conducted at work isn't subject to First Amendment protections was a five-four conservative-liberal split with Justice Kennedy writing the opinion for the court on the conservative side. Well, I have to say I agreed with the Scalia-Kennedy view from 20 years ago, and I still agree with it today and to explain why consider how this case would look if instead of teacher blaming, we had judge blaming. So suppose there's a judge who believes that his own personal religious views require him to rule on cases in particular ways. I think we probably would be a little bit uncomfortable with that. It's one thing to say that a judge should have the religious liberty to worship as he pleases when he is not on the bench, and I think it's perfectly fine for a judge to wear religious clothing on the bench, maybe schedule trials around religious holidays and things like that, that I think makes perfect sense. We want the judiciary as well as all other occupations to be open to people from all professional backgrounds. But I think if a judge said that I have to rule in favor of a particular litigant or have to view or I have to issue certain opinions because my religious views require me to do so and writing opinions in one direction as an exercise of religion, I think we'd say that the judge probably shouldn't be doing that. For one, it's the judge's job to follow the law. If the judge is going to accept a position of public trust which is defined as one that requires him to follow the secular law, then the judge should do that, and if the judge feels unable to do so, maybe the judge is not the right job for him. And the other thing is our judicial system is really for everybody, for people from all different backgrounds, including people who might not want to be there, right? Defendants certainly don't want to be sued and plaintiffs might not have any other recourse other than filing suit in court. And in that context, I think it's particularly important for judges to follow neutral policies issued by the very government that's paying him rather than view his own decision-making that affects the rights of litigants as an exercise of religion. Well, I'm not sure this is that different, even though Mr. Blaming is a teacher rather than a judge, he's not merely claiming the right to worship on his own time or even to have things like wear religious clothing at work or have days off to attend religious events. What he's saying is that in his interactions with his own students, he has a right to not follow the policies of the very employer that hired him, even though those students may not want to be there. And even though it's an institution that's defined like the judicial system as an institution for people of all backgrounds. So maybe there's a different way to think about this. What's really happening in this case is that there's psychological injuries being a surgeon on both sides. So on the one hand, the teacher is saying that he experiences a psychological injury when he uses male pronouns to refer to the student. He says that he feels like he's telling a lie if he uses he instead of she to refer to a student that in his view is a woman or a girl, but the student feels a psychological injury that's sort of opposite to that from the student's perspective. The student is a transgender male and if the teacher uses a female pronoun, the student views that as a lie in exactly the same way that the teacher views using a male pronoun as a lie. Now, I understand the teacher said that he would support an accommodation where he just didn't use any pronouns at all, but there's still clearly discrimination against the student happening in the literal sense that the teacher's using pronouns for every single other student except for this one, right? So the teacher has no problem with using pronouns if there's a student that isn't transgender, but for this student, he's being very careful and not using pronouns at all. So the student is being treated differently and the discrimination itself is inflicting a psychological injury. So there's psychological injuries on both sides. And the plaintiff's position is that the plaintiff has a trump card, which is that his psychological injury is rooted in his religious faith. And from his perspective, that's just the end of the story. He's a brave defender of conscience. And because he's asserting a religious injury, because his beliefs are rooted in his religious beliefs, excuse me, and then the student, well, the student can just get over it, right? The student's psychological injury just shows that the student's being a snowflake, and if the student disagrees with a position that the teacher's religious psychological injury takes precedence over the students, the student can just take that to James Madison. Well, that is one way of looking at it, but I'm not sure I'm that persuaded that the student's psychological injury should be given so much less weight just for a couple of reasons. First of all, as I already mentioned, the student's a captive audience. The teacher can take any job he wants. He doesn't have to be a public employee, whereas the student doesn't really have much choice but to go to school. It's also a child. And I think that we tend to be especially concerned about the psychological injuries of children in addition to being a child, it's someone else's child. And so the teacher is asserting a right that may conflict not only with the school district policies, but with the views of the child and of the child's parents, and yet the teacher views it as his own free exercise rights to undermine those wishes even in the context of a public school. And it's also an LGBT minor who may not be having the easiest way of things in high school. And I think that one of the reasons that the schools adopt these policies is that they want to really put the interests of students first and ensure that the student is in an environment where they can learn best. And the school has concluded probably after consulting with the student that if the student is discriminated against, the student's learning experience will be less effective. And maybe the teacher or others might think that the student is misguided, maybe even delusional, the student should just get over it. But that's not the student's perspective. And from a public school's perspective, the goal is to educate students. And it just seems to me that if the teacher believes that his religious beliefs render him unable to follow policies that have the intent and effect of putting the students' learning experiences first, then maybe he shouldn't be accepting the public school government salary and maybe the job would be better suited to someone who is able to follow the policies that are really intended to ensure that all students have a positive learning environment. So I think I've well exceeded my time, and so I'll yield to my colleagues.

Eric W. Treene: Actually, you were just over eight minutes, so that's great. Meanwhile, we're going to turn in a moment to Professor Kate Carté, but for those watching, you can start to send in your questions for the panelists after these presentations, I'll give them the questions that you post and we'll have a discussion. But now we want to turn to a historical perspective with Professor Kate Carté. The floor is yours.

Prof. Kate Carté: Thank you. It's a privilege to be a part of this conversation. And as has been mentioned, I'm a historian, so I come at this from a different perspective with different professional imperatives than I think a lot of, not just my colleagues here, but the listeners might, I should say from the outset that the job of the historian is to explain what happened in the past. We don't have to argue one side or the other. And so we tend to complicate things rather than sort of take a clear position, and I'm afraid I might be doing that today. What I'd like to do is quickly go over a particular legal case from 1767 that I think actually does bear on this. You'll note 1767 comes before the American Revolution, and it's a moment when - it's actually a London case, so it's a sort of British imperial context to keep in mind. So the case is called the Sheriff's Cause. Starting in the 1730s, the Corporation of the City of London had a practice of electing to the role of sheriff people who by virtue of conscience could not serve - this was an explicit policy - they could not serve as sheriff because in order to be sheriff, they had to subscribe - the The Test and Corporation Acts which were all public employees in Britain, had to subscribe these acts, which included occasional conformity to - at least occasional conformity to the Church of England. And what that meant was you had to go to communion once a year in the Church of England. If you did not do this and you could not serve as sheriff, you got fined so much money. And this was, like I said, an explicit policy. This is how they built Mansion House, which to this day is the headquarters of the Lord Mayor of London. It's a gorgeous space. It has its own tube stop. So it was a massive public financing project on the scale of a stadium today done by finding people who, by their conscience, could not serve. So this went through the courts and by the time it came up before Lord Mansfield and the high court in Britain in 1767, pretty much everyone involved except for the City Corporation of London has said, this is obnoxious. No one should be doing this. The bishop's bench of the Church of England does not protest it. They think the city corporation needs to stop. And what Mansfield rules is that they do need to stop that they can't elect people specifically because they can't serve on the basis of conscience. We think about this case, I think we can pull out of it a couple important historical lessons. The first is that this really tells us something about the nature of English religion and British toleration in the empire. This was true in the colonies too. It was certainly true in Virginia. Participating in official religion meant being a part of the Church of England, which was explicitly designed by Queen Elizabeth after the Bloody Mary, all that stuff. If you think of your Tudor history, it's explicitly designed as what they called (unintelligible), which is uniformity in acts, but not in belief. So the Book of Common Prayer is explicitly written to allow for flexibility of belief, but you have to follow certain public acts that will make you agreeable to the state. So the practice of occasional conformity, which is what they call it, develops, which is where people who are basically Presbyterian, which is the state church of Scotland, or they're basically Baptist once a year, they go and conform, and that allows them to have all the civil privileges they can have anywhere else. It's a lower standard of conscience, right? I can do this once in a while. So that's occasional conformity. The Act of Toleration is then passed in 1689, and what the Act of Toleration does is extend rights of worship - this is part of the glorious revolution settlement - rights of worship to communities. The Act of Toleration is not really designed to benefit individuals. The terms of the Act of Toleration allow loyal Protestants to meet in public spaces. In chapels, they have designated places of worship only with the door open because you can't have secret worship. You can as a community do that, but dissenting individuals did not really gain rights by virtue of that. So the Act of Toleration did not exempt individuals from being penalized under the kinds of acts that the Sheriff’s Cause went after. So it's a collective religious toleration of an institution, not of an individual. So this is the kind of structure we have going into the revolutionary era, which is that toleration is extended to institutions that are legible as religious but not to individuals. What happens in the revolutionary era, and this is across all of the colonies, but also in Virginia, is that you see a really substantial widening of the institutions that were considered legitimately religious. Sometimes - so the Catholics get in partly because of the French Alliance, but partly because Catholics serve in disproportionate numbers during the revolution. Same thing for Jews. Jews serve in disproportionate numbers and they claim their rights based on their rights to not be persecuted based on their government service, on their military service. The other thing that happens is that there's a sharp decline through the very complicated process of disestablishment, there's a sharp decline in laws that specifically disadvantage religious individuals. So here to go back to the British case, the test incorporation acts, I think you guys might call them generally applicable laws. So everybody who wanted to serve in a corporation in Britain had to conform to the Church of England at least occasionally. On the other hand, you had acts that specifically disadvantaged religious groups, Catholics were not allowed to educate their children as Catholics. Catholics were not allowed to serve in the military. There was specific legislation dating back to the 16th and 17th centuries that bars Catholics from participating in government. Those laws are removed in the colonies, and so you have an expansion of religious liberty that's coming from this wider notion of which institutions are involved and a decline in the number of those actual laws. But what we don't see is a real stark growth in the idea that religion is something individual. So I actually would disagree pretty sharply with the reading in one of the descents Powell on page 76 talks about how Virginia has a much higher standard for peace and good order and lists that in every other colony. There's all this other language and suggests that Virginia doesn't. I think Virginia has such a convoluted, and it is truly a convoluted statement of religious liberty. Most states would make sort of blanket statements of religious liberty and then they'd put all these other laws in other places to balance it. Virginia tries to shove all that into one thing, but they shove in the word Christian and the word "we", right? There's a strong collective sense there alongside this sense of religious conscience, right? So an individual, maybe an individual can think what they want to think, but "we" is still very, very powerful in that statute, and Virginia actually deals with this history for a long time, and I know I'm running out of time here. So what I want to point you to is the 1802 Glebe Act. So I'm sure y'all know that Virginia went farther than every other state in banning religious property bans, religious incorporation, and I'd point you to two scholars here - Sally Gordon at Penn is amazing, is working on religious incorporation law, and then most importantly, Alyssa Pennick who is just finishing up at the Jefferson Center at UVA. She's actually literally writing the book on Virginia and Maryland disestablishment. The Glebe Act was the process that took Anglican property and gave it to civil governance. There are multiple free exercise complaints against the Glebe Act, and they very much match the kind of stuff that y'all are talking about, and it actually results for some wacky reasons, including a judge dying between writing a brief or writing an opinion and submitting it. So it has to argue three different outcomes, including one that was written by Judge Story who I know is considered important in legal history. They actually, in one case, grant religious exception, and in two cases don't, but for different legal logics that's in the early 19th century. Virginia at the same time, all the way up through after the Civil War through 1867 bans clergy from serving in government. That's also really important. I had some stuff here to say about civil capacities. I think that's really important. I would love to answer questions about civil capacities if you're, and the way they relate to religion, because I think that's actually a key thing that is misread in these briefs is what a civil capacity meant at that time. But the last thing I want to say is actually just to raise a question. As I was researching for this process, I mean I really live in the 18th century. I was struck quite forcefully by the fact that the phrase "sincerely held religious belief" is used extensively and yet uncritically in these briefs and sincerely held religious belief, when I started looking into it, there's actually a whole book on it's the 1944 Ballard case. I'm curious why the courts would choose to upstream a 20th century understanding of religion and yet claim an 18th century understanding of establishment. In other words, if you don't have individualized non-institutional religion until the 20th century, you've acknowledged you're using 20th century versions of religion when in the 18th century, as I would argue, we have profoundly institutional understandings of religion, which would throw Vlaming's claim out, right? It does not necessarily do great things for freedom of religion if you want a diverse understanding of religion, there are reasons why we've moved to individual understandings of religion, but they are quite different, and I had a timer up and it just went off, so I'll stop there.

Eric W. Treene: Great. Well, thank you Professor. Finally, Professor Barclay, we'd love to hear your views on this.

Prof. Stephanie Barclay: Thanks. It's a privilege to be here. I will start by framing a little bit some of what has been alluded to already by the excellent speakers about the debate going on with Employment Division v. Smith and how the court here should interpret its Free Exercise Clause. I'm going to talk about some of the history that I think the Virginia Supreme Court did an excellent job marshaling as it was considering how that debate should be resolved, and then I'll talk a little bit about that current doctrine. So the Employment Division v. Smith case infamously decided in 1990 overruled the previous doctrine that had applied under the federal US Constitution for the Free Exercise Clause, basically since the point of modern incorporation in the religious exercise context. And that was that if the government was going to do something to interfere with a sincerely held religious belief, it later came to be some sort of burden for that belief. Then the government had to provide a strong reason for doing so, a justification and under the modern iterations of strict scrutiny that came to be known as a compelling reason for whatever it was that the government was doing. That doesn't mean that the religious person will always win, and I'm going to talk about that more when I circle back to address some of the points Adam made about religious objectors, including other government employees, and often government will win under that standard and did it just means that the government has to provide a justification for why it's burdening someone's religious exercise. That was the regime that applied, Employment Division overruled that and said, as long as the law is neutral or generally applicable, then courts aren't going to really scrutinize what's going on. They'll defer to the government about that. That case has been criticized by both scholars and jurists, including at least five Supreme Court justices who have raised questions about whether Smith has any sort of support historically or textually while they debate what should replace it. And so the opinion here is interesting because the school board specifically argued that Virginia should fold this Smith reasoning into the interpretation of the Virginia State Constitution, and as was being discussed earlier by Chris, the Supreme Court declined to do that. They said, we will not include Smith in how we interpret our doctrine. They interpreted their constitution in the more protective way. Similar to that, we'll talk about some differences, the previous standard, which had existed under cases like Sherbert and Yoder, but the court in this case also said, we're actually worried that Smith might not long for this world. They said, quote, "Its shelf life in the federal courts remains uncertain." And so it seems like part of the reasoning of the court here for not adopting that approach is they're not even sure it's the right approach for the federal constitution, and I think that the Virginia Supreme Court is right to be skeptical about that. So some of the history that the Virginia Supreme Court looks to is in Virginia. I mean, there's this rich history in Virginia that has informed all of our free exercise prudence, including at the federal level. There's a debate between George Mason and Madison about what should be the scope of protection for free exercise of religion in the 1776 Constitution of Virginia, George Mason is proposing language that would allow limitations for exercising your religion. In a somewhat permissive context, he thinks that we should protect religious liberty. Both Madison and Mason are strong defenders of religious liberty, but he thinks that if the peace, the happiness, or the safety of society are infringed on, then the government can limit religious liberty. Madison disagrees. He thinks that those limitations are too capacious and that there should be much more limited circumstances where the government is able to limit someone's religious exercise, and that would be if the preservation of equal liberty and the existence of the state would be manifestly endangered. That's the only circumstance really in which Madison would allow the government to do something to limit someone's religious exercise. Ultimately, in June of 1776, the fifth Virginia Convention adopted a Declaration of Rights that doesn't resolve this issue explicitly. So absent is any specific resolution of the proper scope of the limiting principle, but the Virginia Supreme Court determines that doesn't mean that there is no limit. That means that they think the best interest to draw is that the limiting principle is somewhere between these two, which is a position Justice O'Connor had taken. There's some support for that evidence in the fact that the Virginia General Assembly later in act, Thomas Jefferson's act for religious freedom, which says that one limitation that will apply is if religious exercise quote, "will break out into overt acts against the peace and good order." So in other words, if someone exercising their religion is going to really threaten peace and good order in a specific context, that's an area where the government could limit religious exercise, but that's not a lot of areas. That means that we wouldn't limit religious exercise just for someone's happiness or for convenience or even just for uniformity of opinion. We have a little bit more information about how Virginia interpreted religious exercise protections because in a case decided in the 1850s, which was very similar to another case decided in New York in 1813, these are two of the earliest best published cases where the courts are granting a religious exemption to someone. And I will note I thought that Professor Cart had some excellent remarks on some of the cases going on at this time. There are two other states that do not grant religious exemptions, but they're interesting because there's at least some dicta in the cases that suggest that there is a practice of religious exemptions taking place in the lower courts. These particular states, the judges at the time deciding the case is going the other way, seem to be skeptical of judicial review writ large. So their skepticism isn't aimed at the idea of granting religious exemptions. In this early Virginia Case, Commonwealth v. Cronin, here's a context where a priest has received a confession that relates to a crime, and the government is trying to argue that the priest should be forced to testify about this confession that he has received. And I think that this is a really interesting case that shows how a test like strict scrutiny or historical analog of strict scrutiny was operating in Virginia not long after the founding. So the court doesn't just look at, does the government claim at a high level of abstraction some sort of important interest, and if so, that's the end. We don't worry about it anymore. We ask in this particular context, has the government marshaled evidence to show that more than just it might be the case that criminal justice has benefited, but the court says, "Whilst cases may be supposed in which the concealment of fact communicated independent might have a pernicious effect, such instances are rare and they don't furnish foundation for the rule that the priest should always be required to disclose in all cases", and the court goes on to say, we need evidence of the particular harm that you're worried about for criminal laws for peace and safety in this case. And that's one of the important things that I think strict scrutiny does, including under the statutory strict scrutiny that we apply under the Religious Freedom Restoration Act, which is how the court more closely to how the court applies strict scrutiny now constitutionally, both at the Supreme Court level and both I think what the Virginia Supreme Court was suggesting here is we want to know based on the facts for this particular religious objector, what would happen if we accommodated them? Is that really going to do something to threaten important interests relevant to government peace or safety here or not? So that's one reason why respectfully, Adam, I don't think that your concern is about if we adopt this approach here, does this mean that every judge is, whoever has a religious objection is going to be able to rule however they want? That's not at all what the court is saying. The court is just saying, Hey, on the procedural posture of this case, the lower court said that there's not even a claim at all under the Virginia Constitution, and it turns out there is such a claim. You, the government, have to marshal evidence that you are going to satisfy strict scrutiny in this particular context, the way that this teacher has requested an accommodation and we're sending it back on that basis. There will be lots of contexts where government employees don't get an accommodation, but let me also say that normally in other contexts where government employees ask for accommodations, the response is not government rules and for neutrality to apply. And if you can't play the government game and operate by the government rules, then get out of here. We don't say that to people with disabilities. We don't say that to pregnant women. Government doesn't even say that to people with conscientious objections like postal workers who received accommodations because they were vegan and didn't want to hand out flyers promoting a sort of food program that the government was doing. Usually our approach is, "Hey, we want all hands on deck, and if there are ways that you can provide valuable service, even if there are some things you can't do, as long as those some things don't cause a real threats to what the government is trying to accomplish, we'll find ways to accommodate you." And that is the approach that the Virginia Supreme Court is adopting here. It's an approach that I think is common sense and consistent with a lot of what we do under Title VII and in other constitutional areas. It's consistent with history relevant to the Free Exercise Clause of the Virginia Supreme Court and the Virginia Constitution, and it just means that we're going to send it back for the government to prove its case. Is there really a problem if this teacher, as he has alleged in the facts, tries to avoid using pronouns for everybody in the class, is that really going to threaten an important piece or safety sort of interest for the government? Or is there a way that we can find an accommodation to live and let live as we do for many other government employees with many other reasons that require accommodation in our system? 

I'll go ahead and end there.

Eric W. Treene: Great. Well, thank you, Stephanie. We have a lot of questions coming in, but I want to give our panelists a chance to respond to things that others have said. I mean, we started with Chris. Is there anything you wanted to respond to before we get to questions?

Chris Schandevel: Sure. A couple quick responses to a couple points that Adam made, and Adam, I appreciate your well-informed perspective on this case and what it means. I want to start with your hypothetical of a judge (inaudible) and Professor Barclay alluded to this a moment ago. I think that's a very easy hypothetical under the court's test for a couple of reasons. Number one, as a state actor, a judge cannot cite his own, his or her own constitutional rights as a basis for violating the constitutional rights of others. So if a judge were to say, "I'm going to rule against you based on my religious beliefs, even though the law would require me to rule for you" that there's obviously due process problems there. In our case, Peter was not violating anyone's constitutional rights by simply avoiding the use or pronouns. But then secondly, on top of that, there's also the fact that the test itself says if there's no act against peace and good order, I think a judge refusing to follow the law and follow the rule of law certainly poses a threat to good order. So I think even under the test that the court applied, I think it's an easy hypothetical, and then just in response to the other point of that, "Well, he signed up for this government job and therefore he needs to just do whatever the school requires him to do and save whatever the school requires him to say." One, there's a substantive response, which is that the Constitution of Virginia protects Virginians in their civil capacities, and there's historical basis for an argument that a public school teacher is a civil capacity. But then secondly, just kind of a practical response, if that's correct, then a conservative public school district could say to a more progressive minded school teacher who has religious beliefs about transgenderism that are the opposite of my client's religious beliefs, "Well, you have to affirmatively use biologically correct pronouns to refer to a transgender student, even if that violates your religious beliefs." And so a rule that says schools can require teachers to say anything on this issue would allow a conservative school district to have that policy. The rule that we advocated for that the Supreme Court of Virginia adopted is a rule that protects teachers on both sides of this issue based on their religious beliefs. So those would be a couple of responses to a couple points.

Eric W. Treene: Great. Thank you. Adam. Any response to that or other things that were said?

Adam Unikowsky: Sure. I think that the answer to those observations is that I think that these issues are properly decided at the school district level. So going back to the hypothetical conservative school district that ban teachers from referring to students with particular pronouns in the other direction, you might have challenges to that policy as a whole. You might say that policy violates various legal provisions, but I don't think the way to resolve these disputes is to have every teacher be a law unto themselves. Either the policy is constitutional or it isn't unconstitutional, but I'm not sure the experience of students in the classroom should necessarily just depend on the particular religious beliefs of the teacher who's in front of them. I think that at a public school where public school board set the curriculum and the policy, and it's an institution that's designed for everybody, decisions should be made on the institutional level regardless of whether it's a conservative school district or liberal school district. In terms of the comparison to the judge, I certainly wouldn't suggest it's factually identical and perhaps the equities are stronger in the judge case than in the teacher case. But there is a common ground, which is that they're both public officials or both public servants exercising public authority and paid for by the taxpayer in an institution that's designed for people of all backgrounds and all faiths, including people who might not want to be there. And you can say, well, it's really bad for a judge to do that, whereas it's okay for a teacher to do that. But then it just seems to me we're doing the kind of interest weighing that I think I'm a little uncomfortable doing. I mean here you have a student in the classroom that says that the student is very uncomfortable when the student's discriminated against because the teacher is perfectly happy to use pronouns in other contexts, but not in this case. And to say, well, it doesn't matter. The teacher wins, we just don't care about that interest. I guess I'm not sure in the context of the public school, we should be weighing the student's interests in that way, especially when there are plenty of teachers out there who would be more than happy to accommodate, to follow the school's rules that ensure an educational experience that's productive for everybody.

Eric W. Treene: Thanks. Professors, any other comments before we go to questions?

Prof. Stephanie Barclay: Can I just say that, Adam, what you're saying about this idea that if we have a rule and you're a government employee, then it just needs to be handled uniformly. We can't have people be a law unto himself. What you're basically saying is that we shouldn't do as applied constitutional challenges, we should only do facial challenges. So either a policy is unconstitutional for everyone or it's constitutional for everyone, and there's no accommodation to that policy. And that is exactly the opposite of what the Supreme Court says. The Supreme Court says that as applied more narrow surgical constitutional challenges or the bread and butter of constitutional litigation, it is better for the rule of law if we try and keep policies intact as much as possible, whether it's a statute or regulation or a school board policy, and that we only have constitutional carve outs as needed for the remedy for the litigant before the court. So your proposal would flip that longstanding norm across all of the constitutional rights on its head, but oddly only for religion. The other thing I would say about that is a country that has adopted your approach is France, where they just say, "If you're a teacher, you have to comply with all the uniform rules that apply to everybody or you can't teach." And that has marginalized Muslim women who just want to have a headscarf because their approach is, "Well, if you can't do what everybody else is doing then get out of here. We don't want you to contribute." I think that's a terrible approach for pluralistic society where we're trying to include people that have lots of different beliefs and come from lots of different walks of life, and if we don't just say, is there, I mean, again, there might be reasons we can't accommodate some people, but I think it is a better normative starting position to say, "If we can accommodate you, if there's not a good reason why we can't accommodate you than in our pluralistic melting pot of a society with lots of different people, we will find ways to have a big tent so that people can still contribute to government service that way."

Eric W. Treene: Great. Thank you. Well, we have some great questions coming up. Oh, Professor Carté?

Prof. Kate Carté: Can I just ask a question here or point something out? I'm not sure which of those it is. The examples you folks are giving all depend on the legibility of whether something is or isn't religious, right? So the Muslim headscarf is a really good example because we all generally understand that a Muslim headscarf represents a religious tradition that is well-defined and has a substantial amount of apparatus around us that tells us that in this case, as it's being applied, it's an individual's sensibility. There is no Christian teaching that you cannot use pronouns. There's no agreed upon Christian teaching there so we have to trust the individual, which means we're essentially saying that what is legible to the judge or to the court as religion counts and what is not legible does not, and I don't know how you deal with that as a legal question.

Eric W. Treene: Good point. And I think this sort of feeds into the first question. So a participant asks a question for Adam and says, "Does your view change if the student's pronouns are explicitly religious rather than merely implicating religion? What if the student wanted to be called God?" Or maybe another example I'd throw out is what if a student founded his own religion and wanted to be called "Your Holiness", and the school official said you should refer to him as your holiness when you address him and someone objected to that, what would your response be?

Adam Unikowsky: Well, I think that accommodating the student in that case seems sort of silly, but the reason it seems silly doesn't turn on an individual teacher's religious views. I think many teachers would have religious or non-religious reasons not to refer to a particular student as "Your Holiness", and I think that general policies would suffice to satisfy that concern. So just taking a step back -

Eric W. Treene: But you're fighting the hypothetical, what if the school board said, "You know what? We want to be tolerant and you have to address him as Your Holiness." Or whenever you say the word Mohamed, you have to say "Peace and blessings be upon him" because that's what a Muslim student wants to hear.

Adam Unikowsky: There's a few - requiring teachers to say, "peace and blessings be upon him" has other concerns might be Establishment Clause concerns with such a rule with explicitly requiring teachers to make religious statements in class to their students. I think that would be a potential Establishment Clause concern. And there might be free exercise concerns in the sense that the policy is not, I wouldn't say it's neutral at all. It's sort of favoring a particular religion and effectively discriminates against people of some religions versus others. So I think that type of policy would not be a Smith type policy would raise independent concerns, but suppose the student just wants to be called God or just the student insisted on referring to as a cat or a dog or something weird like that, something that didn't present those issues. I think that political constraints would take care of it. I mean, I think that no such policy exists in the world, and if I think that if a school board were to do something really, really weird, not everything that's really, really weird is unconstitutional. I think the reason that school boards have enacted specific policies for transgender students and not students who think they're cats or whatever, is because of a perception that exists among many educators that discriminating against transgender people, harms them in a way that may not apply in other hypothetical situations. And so I guess I'd stick to the view that that sort of very strange hypotheticals that don't exist aren't a reason to essentially invalidate the policies that do exist.

Eric W. Treene: Okay. Question for Professor Kate Carté. Chris Wolf asks, is Professor Carté correct when she says There was an 18th century standard of disestablishment, a recent Esbeck and Hartog volume denies that saying there were many different notions of it. Virginia was different than Maryland was different than Mass, et cetera. I'd also like to throw in another point on that professor, because you said that the idea of individual religion is really a 20th century concept being imposed, but the work of John Noonan, for example, says that he views Madison as establishing conscience as supreme, and that was a bold stroke in the US experience where conscience was elevated to the level of establishment. Thomas Jefferson, looking back on the statute on religious freedom, someone asked, well, why didn't they say Jesus? He goes, oh, we rejected that because this is meant to apply to Jews, Muhammadans, and infidels of every variety, meaning it's individual conscience. So how do you reconcile that too? So the two things, disestablishment being different, and then conscience being recognized back in the 18th century.

Prof. Kate Carté: Thank you. Those are two great questions. To the first one, and to Mr. Wolf, if I said standard of disestablishment, I misspoke. I would've said, what I meant was process. The Den Hertog and Esbeck book is fantastic. It should be required reading for people who are interested in this subject because what it really shows is that the process of disestablishment meant different things in different places, took a really long time, and includes things like dealing with places where there had been a significant Catholic establishment where the laws look very different places like Florida and Louisiana purchase. So absolutely, that should be read to your question about Madison and Jefferson. This is a place where I, as a historian, I think really struggle with a lot of legal history, which is that the tendency to elevate certain individuals because they were involved in the legal process and to say that their attitudes are primary over the wider culture is really problematic. Jefferson could not be called a typical religious person. And what Jefferson and Madison do, and they use words like conscience, right? They use words that refer to interiority. What they do is suggest that religion is something essentially harmless, right? You basically can't hurt someone else with your religion. But in all the cases we're talking about, and 18th and 19th century Americans were very aware, there are tons of ways that you can hurt someone with your religion. In Virginia, for instance, there was positive law throughout the period that we're talking about throughout the founding and what I would call the Antebellum era. I would draw a line there about 1815 throughout those periods, positively banning enslaved people from things that appeared to be religious meetings or looked like religious meetings. There's also a lot of disavowing of certain actions because they're not really religious, right? That's fraud, that's not religion. That person's a kook. Look at anti-Mormon sentiment, particularly some of the anti-Mormon sentiment, pre polygamy, the sense that the culture has a right to say that something isn't real. Religion is very, very powerful. So the culture continued to operate as if religion was a corporate recognizable phenomenon, even though Jefferson and Madison, and by the way, Jefferson was excoriated in his time for his religious beliefs, right? He is not typical. Despite the fact that these guys posited this very limp version of religion. And what I would say is that what Jefferson and Madison are essentially trying to do is suggest in a slight of hand way that treats dissenters with respect that religion doesn't matter at all, right? I don't think that Jefferson anticipated a world in which people would be saying, "My profound religious belief tells me I can blow off a law," right? Jefferson would've said, "Your profound religious belief is in your head". So that's where I get confused, and I understand that this audience is not going to appreciate my dismissal of Jefferson and Madison because you guys live and die by these guys, but...

Eric W. Treene: Madison's shadow portrait is the Federalist Society symbol, so...

Prof. Kate Carté: Yeah, right? So the very bright guys, I'm a huge Madison fan. I'm not dismissing Madison as a thinker. What I'm saying is that Madison's understanding of religion or Jefferson's understanding of religion was not normative for his era. So if you're looking for a founding era understanding of what religion looks like, you should not be looking at Jefferson or Madison.

Chris Schandevel: If I can jump in with a quick point on the topic, I think it's a great point. I think that's the reason why, yes, I do think we can learn a lot from Madison and Jefferson, so I wouldn't throw 'em aside completely. I do think it's worth broadening the scope and asking how Virginians have understood what the legislature did and framing and writing the constitutional protections for religious freedom. And that's why we loved John Ragosta's book, "Wellspring of Liberty", because he really details the struggle between religious dissenters and those in the establishment who wanted religious dissenters to fight the American Revolution, and really the exchange that dissenters made in which they said, if we're going to fight for this country, you need to protect our religious freedom and what Ragosta concludes, and this is on page 158 of his book, he says that "If the voice of Virginia's dissenters is to be properly privileged, some exception from otherwise mutual laws for the free exercise of religion must be recognized." So we think the stories and the voices of average ordinary Virginians are consistent with the voice of Madison, the voice of Jefferson, and recognizing that some exceptions from neutral and general applicable laws had to be contemplated in order to fully protect the right to religious freedom that the dissenters were fighting for.

Prof. Stephanie Barclay: Eric, can I respond, before we move on?

Eric W. Treene: Sure, sure.

Prof. Stephanie Barclay: So I think you're right, Kate, that certainly there's evidence of having a more official doctrine, if you will, of the different religious groups, and that's going to dictate what we think of as their religious beliefs being less individualized. I think though that's a separate question from the issue of can a religious person receive an exemption? Are they entitled to an exemption under the constitutional protections for religion at the time? So when Quakers objected to military conscription, that was a generally applicable law that applied to everybody, and our country's response at first was to say "That's in your head and we're going to throw you in jail or worse if you don't comply." And yes, it was originally, and we have framers talking about how that turned out to be a bad policy, and then they shifted and they provided exemptions, and again, in the court cases in Cronin, which is a Virginia Case, and in People v. Phillips, the courts there that granted religious exemptions weren't saying, "Hey, your religion is just in your head, so you have to comply with this law the way that it would apply to everyone else." They were granting an exemption, and so that's part of the historical issue that is being debated here. He's not just bringing a religious claim though, he's also bringing a speech claim, and so speech separately doesn't have to have the same sort of established "does this group buy this particular belief" view, I'd also direct you to Lee String's Corpus Linguistics work on the meaning of religion at the founding, which I think is interesting. There's a secondary interesting question, which is did the idea of religion become more individualized around the time of the 14th Amendment for those who think that the 14th amendment meaning is relevant for how this right is then incorporated more broadly and there is evidence that suggests that it is there as well by that point in time.

Eric W. Treene: Kate, you had a response?

Prof. Kate Carté: Yeah, so the issue with the Quakers, so yes, there is back and forth about which religious groups are entitled to which kinds of protections, and especially when you're talking about things like even in Pennsylvania you have religious leaders saying that, or you have constitutional tests in Pennsylvania that say you have to believe in a future state of rewards and punishments. So there's all kinds of shenanigans in that era. What I would say is that they were talking about Quakers, so I would challenge you to come up with an example of an individual who makes up their own religion in the 18th century and then gets a religious exemption, and that's a really different question. We struggle a lot with the fact that in the present we have abdicated, and as far as I understand it, this is the Ballard thing. We have said that the factual content of religion is separate or of belief is separate from whether someone is entitled to those protections. They would not have said that I'm actually not in favor of restricting religious freedom. I'm curious about the application of history in this context. It seems to me like conflicted reasoning to suggest that our individualized understanding of religion can be upstreamed to them.

Eric W. Treene: We're over time, but we'll just take a couple more questions. Jordan Lawrence asks a question for Adam specifically, "How unlimited is the power of government to impose requirements on its employees in light of the teacher's constitutional rights? For example, could a school board fire a teacher for declining the requirement to lead the students in reciting the pledge of allegiance?"

Adam Unikowsky: I think the school board probably could fire the teacher for that. I think it's very different from the Barnett case in which a student was held to have the right, the Constitutional First Amendment right, not to recite the Pledge of Allegiance. It seems to me that if a school decides that it's in the interest of the students and it's the interest of the community that the students say the Pledge of Allegiance every day, and if the parents of a school district elect a school district whose officials run on that platform and they institute such a platform, then I think that every student should have that experience in their classroom. If an individual teacher feels that the teacher is religiously unable to do it, then it's probably not the right job for the teacher. I mean, it may sound harsh, but I think in the context of public employment, the views of the public take precedence and you know I - go ahead, I'm sorry.

Eric W. Treene: No, no finish. Then I was going to send it back to the others with a slight twist, so finish your thoughts.

Adam Unikowsky: In responsive comments said earlier, it's not that I oppose any type of as applied challenge to things like Muslim women wearing headscarves and things like that. I think that schools are required and by Title VII and should be required to make accommodations like that. If a teacher wants to have the day off to celebrate a religious holiday or to wear particular clothing in the classroom or things like that, to me it is certainly in our national tradition to accommodate that. I guess the line I would try to draw is between the exercise of religion in terms of things that are not direct interactions with students and then viewing the actual teaching, the actual utterance, the actual back and forth with the students themselves as an exercise of religion. And if a teacher views discriminating against a student in the teacher's interactions with the student as an exercise of religion, that to me is conceptually a little bit different than wearing a headscarf or having the day off. So I don't oppose all types of as applied challenges, just certain types. Basically

Eric W. Treene: The question I'd put back to the others is if you're going to allow accommodations for things like the pronouns or the pledge of allegiance, what's the limiting principle? If there's a cafeteria employee who won't handle who's vegetarian and will not handle meat and that's 50% of the job, that's not peace in good order that they'd run up against. On what grounds could the school say, "No, as a government entity, we're not going to recognize your religious freedom to not handle meat."

Chris Schandevel: Yeah, I think it's a good question. And it's an interesting line drawing issue that if courts in Virginia, we'll have to answer, I'll say on questions of that sort, we have those questions, those objections were made to state RFRAs and we have close to 40 states that have passed state RFRAs now, and the objection was always, well, we're going to get this slew of free exercise claimants who are going to object to doing anything and everything and the courts are just going to be overburden, but we haven't seen that. So you'd have to wait until you actually had a cafeteria worker who had that objection. And the question I think would have to be whether or not her religious exercise could be accommodated, and if there's a way for the school to allow her to handle 50% of the school lunches and have the other employees handle the other, I think that the school should have to do that. I'll just say as to the point made a moment ago about requiring school teachers to lead the class in the Pledge of Allegiance, we think that would have just as much of a First Amendment problem and a free speech and free exercise problem as requiring school teachers to pledge, say the Pledge of Allegiance. And in fact, two about the Massachusetts Supreme Court and a case called Opinions of the Justices to the Governor in 1977 held that that Barnett applies equally to school teachers and the second Circuit in a case called Russo held that Barnett applies equally to school teachers as well. There's a difference between saying "Now class, you all can stand up and say the pledge" and requiring the teacher to create the opportunity and the space for that and requiring the teacher, him or herself to actually endorse the Pledge of Allegiance. We think that's where the line can be drawn and has to be drawn under the Constitution.

Eric W. Treene: Other responses?

Prof. Stephanie Barclay: Adam, and just to go back to what you were saying, I'm glad to know that you would accommodate the Muslim woman with a headscarf, but the type of arguments that you are making are the arguments that countries like France have used to prohibit those accommodations. When you were saying earlier, we should just decide this at the policy level, we shouldn't let people be themselves that either the law applies to everybody or nobody. That's the opposite of accommodating a Muslim woman with a headscarf. I do think that in some of these contexts, the vegan question that you're asking about Eric, I think it's a good question in terms of line drawing, how much of their job is it going to prevent them from doing, and if it's a substantial portion of their job that they can't contribute to anymore, that seems like a reason under either Title VII, which also applies for religious accommodations or the Constitution not to provide accommodations. But in a lot of these cases, I think it's surprising how easy it is to have a common sense solution. Sometimes just shifting someone's shift with someone else, doing minor adjustments that allow more people to participate in the workforce and to have a job.

Eric W. Treene: Okay. We are out of time, but Adam and Kate, do you want any last responses? No. Good. Well, I thank you all for coming. This was a very interesting conversation. We haven't resolved these questions, but we've raised a lot of points that are worth pondering, and I thank you all and I thank all who signed in to listen to this. Thank you, Marco for hosting.

Marco Lloyd: Yes, and I want to reiterate, thank you so much for the benefit of your time and expertise today. Thank you also to our audience for joining us, please check out our website fedsoc.org. Thank you again for tuning in and we are adjourned.