Is a “Theocratic Veto” coming to Virginia?
In a case (see below) brought this year in Fairfax County Circuit Court by America First Legal, Donald Trump’s former aide Stephen Miller and Virginia’s current Attorney General Jason Miyares try to establish a right to sue about and invalidate any law that goes against a “sincerely held belief” (a.k.a., a religious belief). In other words, they want a theocratic veto.
In simple terms, a theocratic veto would be the right for someone’s freedom of religion to give them a veto over someone else's freedom, whether it be speech or public accommodation. In his Amicus brief, (see below) Miyares is suggesting that the state has the right to enforce this religious freedom to force one person’s religious doctrine on others.
Jane Doe v. Fairfax County School Board (CL-2024-0003171)
The case is officially brought by an unnamed student (“Jane Doe” for the lawsuit) who probably graduated this June from her high school and is no longer a student in Fairfax County Public Schools (FCPS).
The defendants in the case are the Fairfax County School Board (FCSB), defended by Gentry Locke Attorneys. Interestingly, nearly one year ago, Miyares lost a case against the FCSB that cost FCPS nearly $1.4 million in outside legal fees, unknown internal costs, and unknown costs to Virginia taxpayers.
Miller brings his suit via an activist law-firm bearing the name of a Nazi-associated movement known as “America First” that existed in the US before the Axis attacks on our country at the start of World War II. This movement was exemplified by the America First Committee of 1941/42, which was a political, isolationist (and notably antisemitic) group that opposed giving aid to the Allied Forces (a.k.a., our allies, Britain and France) fighting Germany and Italy, the Axis Powers, during World War II (see Dr. Seuss cartoon to the right). This committee posited that “the fight against fascism was not America's fight.” A small group of congressmen associated with this influential committee were found to have colluded with Germany prior to the war.
Miyares makes his statements in the Amicus Brief in his role as Attorney General of Virginia, on behalf of all of the residents of the state, no matter how unpopular his views may be.
Miller’s lawyers (including Ian Prior, another former Trump appointee), with the support of Miyares, is asking the Fairfax County Circuit Court to declare that FCPS regulation (2603), which spells about support for transgender students and complies with Federal court precedents, is invalid because Doe interprets it as violating her “sincerely held beliefs.”
They have a free speech claim, too. Per American First Legal, this policy “violates their free speech rights under the Virginia Constitution” despite the fact that the policy does not ask the student named Doe to actually do anything; it does not affect her directly. Because she disagrees with it, Doe says that it “burdens her rights to express disagreement with it.”
Implications of a “Theocratic Veto”
This case is at its heart a “theocratic veto.” Core to Miyares’ Amicus brief (see below) is a recent decision in Vlaming v. West Point School Board, et al (this is West Point, Virginia, not New York!), where the Supreme Court of Virginia (SCOVA, as opposed the SCOTUS) increased the privilege of religious beliefs in Virginia beyond those given in the first amendment to the United States constitution. In Vlaming, SCOVA says that religious beliefs must be accommodated unless there is a threat to public safety and order that is caused by giving that accommodation. The FCSB response to Miyares’ brief notes (on page 10 of the FCPS response below) that Miyares’ Amicus Brief “endorses Petitioner’s attempt to extend Vlaming as a tool to invalidate generally applicable laws–and that is a step that Vlaming does not endorse.”
However, Miyares, in writing in support of Miller’s America First Legal firm, goes further. He appears to argue that simple disagreement on religious grounds to a law or policy gives a person the right to ask a court to invalidate the law. He demands a supremacy of religious belief in the elimination of the choices of the elected legislators rather than a less intrusive accommodation for religious beliefs.
Oh my lord, what a statement! What freedom that we have in the United States, what freedom does anyone have in the world, that has not been opposed on the grounds of “sincerely held belief?” What step towards a more fair and inclusive society has not been opposed on the grounds that someone wants to prevent freedom on a “religious ground.”
The end of mass enslavement, the continued work toward ending oppression of women, the right of the non-wealthy to vote, the right to an education, the right to desegregate schools, and freedom of religion itself have all been opposed on “religious grounds”. However, no American could imagine where this country would be without these rights?
Miller and Miyares have chosen to propose this Gilead-level legal theory with regard to transgender students, not coincidentally. Their hope may be, with enough smoke and mirrors around bathrooms, sports teams, medical care, and names and pronouns, that they can slip through a precedent that puts personal religious belief above all law. Above school boards, above the General Assembly, above the Governor. Religion above Democracy spells the end of our experiment at a Republic.
It’s absurd on the face of it. Why is this being proposed now? In the National Review (a long-time ultra-conservative magazine) Miyares hinted that he is considering a run for Governor of Virginia, or other office. He says “I will be happy to comment about and discuss my political future at the appropriate time,” then shifts the focus to Donald Trump’s candidacy for president of the United States. This was just two weeks ago.
Miyares is being coy about what office he will run for. The current Lieutenant Governor of Virginia, Winsome Sears, has a commanding lead over Miyares in early polls for the nomination for governor of Virginia. Trump was similarly coy about whom he would choose for his Vice-Presidential running mate. Now that he has chosen his VP running-mate (JD Vance), other jobs in his administration remain open: cabinet positions, ambassadorships, directorships, and many more. What will Miyares’s “political future” hold? One thing we can be sure of: he is building that future on pandering to the greatest dreams of America’s religious nationalism: a theocratic veto, initially aimed at smashing the hopes and rights of transgender students.
Next Week: Attend Hearings on the Case!
There are a number of hearings coming up in this case at the Fairfax County Courthouse (4th and 5th floors):
July 25 at 2 p.m. before Judge Kassabian on a motion by FCPS to end the case basically on the grounds that “you can’t bring a suit just because you disagree with a policy” (called a demurrer).
July 26 (time TBD–click here for docket information) for a hearing before a judge to be appointed on whether the case should be dismissed because the student has graduated and it is now “moot.”
In terms of precedents set, the most important of these is probably the July 25 2 p.m. demurrer before Judge Kassabian. It is worth noting that Kassabian is the same judge who dismissed a somewhat similar case in 2015 (Lafferty v FCSB). Eventually in Lafferty SCOVA ruled that simply disagreeing with a policy doesn’t grant the right to sue about it. This matter is returning because Miyares is hoping that the new SCOVA ruling in Vlaming v. West Point will grant the “theocratic veto.”
It’s grandstanding pure and simple, but one never knows what a court will do. We should all hope (or pray, if you like) for the best outcome for our transgender students and families, because that is the best outcome for all students.
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