In October, Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic filed an amicus brief in Theis v. InterMountain Education Service District, urging the U.S. Court of Appeals for the Ninth Circuit to reject a government school district’s attempt to suppress religious expression in the workplace.
Roderick Theis is an educational specialist who administers standardized tests and student evaluations in Oregon public schools. As allowed by the district’s policy permitting employees to decorate their offices with a variety of personal items and messages, Theis displayed in his office personal books, which expressed views on gender identity consistent with his Christian beliefs. After a coworker complained about Theis’s display, the district ordered him to remove three books and threatened to discipline—or fire—Theis if he continued to display them.
Theis filed suit, arguing that the First Amendment protects private religious expression like his book display and that the district had not justified its restriction on his expression.
The district court disagreed. In its view, Theis’s personal office decorations effectively became the school’s own message, free from any First Amendment protection and subject to the government’s total control.
In its amicus brief, the Clinic urges the Ninth Circuit to reject this capacious theory of government speech. The Supreme Court has repeatedly rejected the idea that individuals sacrifice their First Amendment rights by accepting government employment. Just recently, the Supreme Court confirmed in Kennedy v. Bremerton School District that public-school employees’ private religious expression retains First Amendment value—even when that expression occurs while the employee is on the job.
Theis’s personal books were not a government-created message he was hired to deliver. As the Clinic’s brief explains, government employers cannot invite employees to express themselves in the workplace but then recast those expressions as the government’s own speech to secularize or censor it.
“Governments across the country keep deploying this same tactic, claiming private, religious expression as their own to censor as they see fit,” said Meredith Kessler, Managing Attorney for the Religious Liberty Clinic.
“It is an issue we have confronted in a number of areas and one that we will keep working to correct, so that the First Amendment safeguards religious believers’ right to participate fully in public life,” said Professor John Meiser, faculty director of the Religious Liberty Clinic.
Last year, the Clinic led a federal appeal challenging a lower court decision permitting a local sheriff to discriminate against a volunteer minister, Stephen Jarrard, simply because he disagreed with Jarrard’s theological views. In that court’s view, the First Amendment did not protect Jarrard’s religious expression because his ministry was essentially the County’s own message to control.
The Eleventh Circuit rejected that decision. The appellate court held that Jarrard’s volunteer ministry is his own personal expression—not something jail officials themselves created or commissioned. Those officials therefore could not tell Jarrard how to interpret the Bible or deprive Jarrard of his basic First Amendment rights, including the bedrock rule that the government may not punish a person because they dislike his views.
Notre Dame Law School students Blake Perry and Cameron Grinnell contributed to the brief alongside Meiser and Kessler.
“Working on this brief allowed me to grapple with significant constitutional issues—including the First Amendment’s protections for religious expression—as a law student,” said Perry.
Grinnell added, “I hoped to participate in just the sort of legal advocacy featured in this case when I applied to participate in the Religious Liberty Clinic.”
About the Notre Dame Law School Religious Liberty Clinic
The Lindsay and Matt Moroun Religious Liberty Clinic is a teaching law practice that educates, forms, and prepares Notre Dame law students to become the rising generation of religious liberty leaders by training students in the practice of the law as they defend religious freedom for all people.
Under the guidance of Law School faculty and staff, students work on a broad variety of legal matters to promote religious freedom on behalf of individuals and organizations of all beliefs—both domestically and abroad. The Clinic represents clients from all faith traditions to promote not only the freedom for people to hold religious beliefs but also their fundamental right to express those beliefs and to live according to them. Learn more about the work of the Clinic here.