This is Bloomberg Law with June Brusso from Bloomberg Radio.
It appears to be unprecedented. A judge has ordered three lawyers for Southwest Airlines to attend religious liberty training from a conservative Christian legal advocacy group, the Alliance Defending Freedom, a prominent player in several major legal battles over abortion and LGBTQ rights. Texas Federal Judge Brantley's Star, a Trump appointee, found Southwest had flouted his order in a religious discrimination case.
Southwest is appealing to the Fifth Circuit. Joining me is Shao Wang, a professor at the University of Virginia Law School. This judge's order, how would you characterize it on a scale from ordinary to shocking?
But I think that the order here is highly unusual, and it's probably highly unus usual for three different reasons. The first reason is that sanctions in general are pretty sparingly imposed, and here there's certainly questions about whether Southwester in fact complied with the judge's original direction in the first place, and Southwest is of course appealing that point. The second reason that makes this highly unusual is that no one asked for this particular sanction the sanction of
taking religious liberty training. When the plaintiff originally filed her motion for sanctions in December of twenty twenty two, she asked for attorney's fees and costs and certain financial penalties and a new corrective notice to be supplied to Southwest workers, and she got that. But in May this year, the judge said that he was contemplating an additional sanction, which was religious liberty training. And I think the third thing that makes this sort of a highly unusual order is
who is supposed to give that training. It is the Alliance Defending Free, which is not an organization that ordinarily holds itself out as providing continuing legal education, but is in fact an advocacy organization with a specific point of view and a number of high profile cases in the federal courts.
Let's put this into context. So this was a case where a jury awarded five point one million dollars for a Southwest flight attendant in her religious discrimination suit. And it's been going on for.
A while, that's right. The origin of this suit was around twenty seventeen when Southwest terminated flight attendant Charlene Carter in Southwest Miss Carter had sent a number of messages on social media to the airlines then union president, and those messages concerned abortion. They included graphic videos of aborted infants and other messages, and Southwest believed that that violated
its social media and harassment policies. Miss Carter, on the other hand, insisted and stated that those messages were an expression of her religious beliefs and that she was terminated based on her expression of those religious beliefs in violation of federal law.
The judge, as you mentioned, he required that a notice be sent to flight attendants after the jury's verdict. Is that unusual or is that par for the course?
I think it's fairly par for the course. I think, especially in a case like this one that involves the intersection between federal law and a company's policies, it's pretty common for a company to say exactly what happened in this litigation and whether it is making any changes as a result. But in the judge's view, the specific notice that Southwest sent out did not comply with the court's order. In fact, it was intentional non compliant.
He wanted them to send a notice saying that quote, it may not discriminate against Southwest flight attendants for their religious practices and beliefs. Instead, Southwest send a notice saying it does not discriminate, and also double down sending a memo defending the policy and telling flight attendance to adhere to the policy that was behind the firing. So does it seem like Southwest didn't comply with the judge's order.
I think that that's something that Southwest is contesting right now. It's contesting that on appeal. I think that in the judge's view, the judge threw an analogy in his order to the story in Genesis where he says that this is the equipment of God saying that you may not eat from the tree, and Adam saying I do not eat from the tree, and having the apple core at
his feet. I think in this analogy, the judge or the court would be God, Southwest would be Adam, and the apple core would be evidence of its religious discrimination against Miss Carter. The judge also pointed out a memo
which it says essentially ambassid Miss Carter. I think those are the court's words, and I read the memo and I think that there's a lot more gray there because it says that in ambassiedness, Carter for her inappropriate harassing, offensive communications, and I think it suggests that it sort of still holds that view, but if you reads the memos, it uses some pretty important modifiers. It uses a modifier at the time we believed these messages were inappropriate, harassing
and offensive. We felt past tense, we felt across the boundaries. But that's different than saying you still believe it. Is.
There training that's common for judges to order for lawyers.
There is the common training that the judge would order would be to say, hey, take some continuing legal education classes, and here are a number of different providers that you could choose from, and that's something that we've seen in
a number of different cases. I think what makes this unique is that Alliance Defending Freedom doesn't hold itself out as conducting trainings regularly, and in fact holds itself out as an advocacy organization and says that it is one of the leading Christian law committed to protecting religious freedom, free speech, marriage and the family, plantal rights, and the sanctity of life for the express goal of keeping the doors open for the Gospel and Jesus Christ, so certainly
it has its own litigation agenda, and it had its litigation agenda for a specific purpose. I think that there are certainly organizations like the Practicing Law Institute, certain law schools, the ABA, who would offer, say, a course on the First Amendment, or developments in religious liberty law that are different from the positions that are religious advocacy organization like Aliance Defending Freedom might offer.
And this group, Beliance to Fending Freedom, has been involved in some of the biggest cases at the Supreme Court involving religious liberty and LGBTQ rights. It helped convince the Supreme Court to overturn the constitutional right to abortion last year. A few years ago, it represented the Colorado baker who didn't want to make a wedding cake for gay couples. And this term it successfully defended the Colorado website designer who didn't want to design a wedding website for gay couples.
And it's involved in this case challenging the abortion pill mif A pristone. But the group's chief legal counsel, Jim Campbell, told the Associated Press the judges order calls for ADF to provide training in religious liberty law, not religious doctrine. It's baseless to suggest that people of faith cannot provide legal instruction if their beliefs differ from their audiences.
I think that from my review of ADF's website and my understanding, it in fact holds itself out as providing one specific type of legal training and through its Legal Academy, and it describes that legal academy as combining outstanding training with an unwavering commitment to Christian principles. And at the academy, in addition to the training, you will join an inspiring
worship and devotions. Each day you'll be trained effectively to advocate for religious liberty, free speech, life, and marriage in the family. I think that if that is the type of training that's being offered, that's not the same as necessarily what the law is and understanding the state of play of a doctrine. Now, certainly, I don't think it's outside the realm of possibility for ADF to provide a more neutral form of training and understanding where the law stands.
But I don't think we necessarily have a record of that. And if the judge had ordered in this case that the Southwest Attorneys take training from say a law school or practicing lawns to you'd have a syllabus or you'd have materials that you would cover during that training. Here, from what we know, ADF's materials fairly explicitly try to integrate its advocacy into its trainings themselves.
So the judge is a Trump appointee with some conservative bonafides.
So Judge Stars, as you pointed out, was appointed by Donald Trump e've be in twenty nineteen. He is the nephew of Ken Starr, who was the Special Council of course under President Clinton investigating the Whitewaters matter. This Judge Star who has issued this order. Before he joined the bench, he worked in Texas state government on the Attorney General's office and has been a member of the Federalist Society
since I believed the early two thousands. When he was in law school, he was editor in chief of the Texas Law Review in Politics, which is a fairly conservative legal publication.
So Southwest is appealing, what would some grounds for appeal be?
Southwest It's appealing even the initial judgment that was at issue here, and I think it has some grounds there because you know, remarkably miss Carter when she originally filed suit back in twenty seventeen, she did not say explicitly in her complaint that she was making religiously motivated speech. She did not identify as a Christian. That only came later, about a year later into the case. So I think Southwest has some grounds to say that even the initial
judgement was off base or incorrect. But even if Southwest were to lose there, I think Southwest would challenge and say that it in fact did comply with Judge Starr's order, and if it did not, that that noncompliance was not intentional in fact, to try to do so. It didn't succeed.
But the action that one might take is not necessarily religious liberty training, but it's to comply with the order to send out a new notice and to pay certain financial fees and penalties, which is something that it might be willing to do. So. I think Southwest has signaled at least that it wants reconsideration of many different aspects of the district court proceedings in this case, as far.
As the religious training could. Southwest argue that ADF has extreme views and so it's unfair to subject the lawyers who may be of different religious backgrounds to those views.
Certainly, I think that that's a great point, June, and I think what it would do is to point to the fact that Alliance Defending Freedom is an advocacy organization and its training is supposed to integrate Christian faith into one's practice in order to promote certain ideals held by the Alliance Defending Freedom. But Southwest may not hold those ideals, and Southwest attorneys may not be comfortable receiving such instruction.
I think that the gap that you're talking about is sort of the gap between where the law is and sort of where the law should be according to the Alliance Defending Freedom. That's a fairly big gap in some circles, and I think that that is the source of some of the controversy issue here.
This appeal, though, would be going to the Fifth Circuit, which many consider the most conservative appellate court in the country, so Southwest is not likely to find a receptive appellate panel there.
I think that certainly the makeup of the court may make a difference in the result here, but this is not necessarily the end of the line. This might be sort of subject to further appeal well, and it is possible that the Fifth Circuit might nevertheless uphold some form of sanctions, but as we've discussed, may offer a middle ground where, instead of selecting or the live spending freedom allowed Southwest to choose between a number of different options.
So I think that certainly the makeup of the court might make a difference, But there are colorable arguments that Southwest might raise on appeal that that may lead to a slightly different outcome.
So I want to ask you a broad question. Do you think that lower courts are becoming more raised in, you know, leaning in favor of religious liberties because the Supreme Court has in recent years never ruled against religious liberty.
Yeah, I absolutely think that that is something that is happening. I think certain courts, as you point out, certain courts like the Fifth Circuit, possibly the Eleventh Circuit, are leaning into this point. They're trying to read the tea leaves of where the Supreme Court is going. But that said, I think even this past term, the Streme Court has signaled that sometimes circuits go too far and that there are some circuits that go beyond where the Supreme Court
wants to go. So certainly I think the Fifth Circuit is trying to read the TV's is trying to perhaps take expansive views of religious liberty doctrine, but I think that it's not a guarantee that those views will be affirmed by the Streame Court. Certainly, the Streame Court has definitely trended towards that direction, and that's been the subject of much debate and scholarship, but it's unclear in every specific case what the result might be.
Thanks so much, Shao. It's your first time on the show, and I hope you'll come back again. That's Professor Joao Wang of the University of Virginia Law School, And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg