Appeals court: Southwest's lawyers don't have to go through right-wing "religious freedom" training
A Trump judge’s demand for biased “religious liberty” re-education got shut down by a conservative appeals court
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A federal appeals court with two Trump-appointed justices finally ruled last week that three attorneys for Southwest Airlines do not have to take a “religious liberty training” from a right-wing Christian group as punishment over a religious discrimination lawsuit.
All of this stems from a 2017 case involving Charlene Carter, a flight attendant who was fired by Southwest for posting anti-abortion messages online. Actually, it was much more than that. She repeatedly sent emails to and made social media posts about her union president for attending the Women’s March that year (“You truly are despicable in so many ways”) and didn’t stop despite a lack of responses. She also accused the union president of “murder” for supporting abortion rights.
Carter was soon fired for violating company policies "regarding civility” because she was “harassing” the union president and because, in her public Facebook posts, she was “identifiable as a Southwest Airlines Employee.” (There were pictures of her in uniform, alongside other employees, and displaying her employee badge.)
She claimed she was fired for expressing her Christian beliefs, suggesting this was religious persecution, even though there was no evidence Southwest was punishing her for her faith.
After she filed a grievance with the union, and an arbitrator sided with the airline, she decided to sue both Southwest and the union.
To my shock, a jury agreed with her. They decided Carter should get her job back, that Southwest had to stop discriminating against employees on the basis of religion, and that the company had to “notify its flight attendants of Title VII’s prohibition on religious discrimination.” They also awarded Carter $5.1 million, including nearly $1 million from the union. (The amount was later reduced to about $800,000.)
While the religious discrimination angle was the focus of a court hearing last year, it was the notification bit that became a bigger and separate controversy.
Southwest was supposed to tell its flight attendants that the company “may not discriminate” against them due to their religious practices and beliefs. That future tense was important. It implied they wouldn’t do such a thing ever again. When the notice went out, however, it said Southwest “does not discriminate” on the basis of religion. As in: We don’t currently do that but who knows what the future holds. They also didn’t include a mention of Title VII in their notice.
Carter then asked the court to punish Southwest for not doing what it was ordered to do.
In August of 2023, U.S. District Judge Brantley Starr issued a decision, stating that “It’s hard to see how Southwest could have violated the notice requirement more.” Then, just to offer up some examples of how egregious he thought Southwest’s behavior was, he offered “modified historical and movie anecdotes”… from the Bible and Lord of the Rings. (I repeat: He treated the Bible as historical.)
After God told Adam, “[Y]ou must not eat from the tree [in the middle of the garden],” imagine Adam telling God, “I do not eat from the tree in the middle of the garden”—while an apple core rests at his feet. Or where Gandalf bellows, “You shall not pass,” the Balrog muses, “I do not pass,” while strolling past Gandalf on the Bridge of Khazad-dûm.
Starr held Southwest in contempt, even writing out a new memo the company had to send its employees. But because Starr said there was a “chronic failure” regarding “federal protections for religious freedom,” he said three lawyers for Southwest needed to go through religious freedom training.
Starr even suggested who should provide that training: Alliance Defending Freedom.
In explaining that sanction, Starr argued Southwest wouldn’t have to pay for the training, merely the cost of flying someone from ADF to the company’s headquarters in Dallas, which he claimed was a “minimal burden.”
But why that group? It’s not like they had anything to do with this case.
Starr claimed ADF was one of many “esteemed non-profit organizations that are dedicated to preserving free speech and religious freedom.” ADF offered it free of charge, he added.
Nowhere in the order was there any explanation for why ADF, and not a more credible organization, had to provide the training. It was an absurd idea, journalist Chris Geidner explained, because ADF was hardly some neutral party:
ADF’s lawyers — including Erin Hawley, whose husband is Sen. Josh Hawley — are the ones currently litigating to end the availability of one abortion medication drug, mifepristone, nationwide. The group was behind 303 Creative v. Elenis, the case from this past U.S. Supreme Court term about the woman who didn’t want to make wedding websites for same-sex couples — another case that could have substantial fallout.
ADF is not an unbiased, educational institution — nor does it pretend to be. The only relevant “training” its website discusses in the training section is a “Legal Academy” connecting “like-minded attorneys” in an effort to show lawyers how “to effectively advocate for religious liberty, free speech, the sanctity of life, and marriage and family.“
Geidner was right; ADF is a conservative legal group that only sees religious freedom while wearing Jesus-tinted glasses. They have argued that “sodomy” should be illegal, spread lies about LGBTQ people supporting pedophilia, and defended forced sterilization of trans people in Europe. Bigotry in the name of Christianity counts as religious freedom for ADF lawyers even when non-discrimination laws are in play. Their arguments, regardless of right-wing judges ruling in their favor, have been widely criticized by legal scholars.
Geidner also pointed out that this was a bizarre choice since Carter herself never asked for this (even if she supported the idea of Southwest’s lawyers going through a training). It wasn’t until that ruling that Starr even suggested ADF conducting the sessions.
So what would an ADF religious freedom training look like? Who knows. There were no specifics offered. Plus, their track record suggests they don’t know what religious freedom is. It seems to be whatever conservative judges will let them get away with.
Would ADF even agree to this? Starr’s suggestion of flying someone from ADF to Dallas on Southwest’s dime implied there was someone in mind. But what else would you expect from a right-wing Federalist Society judge with a lifetime appointment on the bench?
Last year, lawyers for Southwest appeared in front of the 5th U.S. Circuit Court of Appeals, arguing that the monetary award should be reversed in its entirety because this wasn’t a case of religious persecution:
Carter’s attorneys argue in briefs that she made clear to management she sent the material because she was a Christian and an opponent of abortion. They say firing her violated federal law shielding employees from religious-based discrimination and that Southwest management and the union, which complained about Carter’s messages, should be held liable for her firing.
The judge asked Carter’s attorney whether any worker should be allowed to get away with harassing coworkers “as long as it’s cloaked in religious conduct or religious practice.”
…
Southwest argues it broke no laws firing Carter because she violated company rules requiring civility in the workplace by sending “hostile and graphic” anti-abortion messages to the union leader, who was a fellow flight attendant.
The ADF-led training, which still hadn’t occurred, wasn’t brought up during oral arguments but the court’s decision would likely impact that as well. Southwest’s lawyers, in their appellate brief, argued that getting training from ADF was a violation of their rights because it “forces Southwest and its in-house attorneys to listen to the views of an ideological advocacy group.” (True.)
In a separate amicus brief, the Freedom From Religion Foundation’s Sam Grover wrote that it was “entirely unprecedented” for a court to force attorneys to attend training “by a specific ideological advocacy organization, let alone one that bakes religious teachings into its training.”
… rather than creating an avenue for judges to insert their personal viewpoint into sanctions orders by allowing for the selection of specific advocacy organizations to conduct training, this Court has the opportunity to keep Pandora’s box firmly shut. The Court should seize this opportunity.
Bloomberg’s Patrick Dorrian also explained that the training could be dropped entirely depending on the outcome of this case:
The myriad issues on appeal include whether the verdict against Southwest was supported by the evidence, so the training sanction may not be considered if that verdict is overturned or a new trial is granted.
It’s also possible that the Fifth Circuit will say the contempt finding is unsupported and that Starr had no basis for the sanction. That might mean the court won’t address whether religious-liberty training was appropriate.
Even if the training was held up, he added, ADF may not be able to conduct it:
The appeals court won’t wade into whether the ADF was properly designated as the trainer even if it does reach the sanctions issue and upholds the underlying contempt finding, University of North Texas at Dallas College of Law associate professor Michael Maslanka predicted. It will instead find a way to say the parties should agree on who will conduct the training, he said.
It’s also more likely that the Fifth Circuit will rule the Southwest attorneys should be sent for ethics training rather than religious liberty training, Maslanka said.
ADF filed its own brief saying it was absolutely well-equipped to provide religious freedom training in part because they’ve been very successful at winning Supreme Court cases involving the First Amendment. (They never mentioned that the Supreme Court has a right-wing supermajority stacked with ideologues like themselves.) They also cited praise from several Republican lawmakers.
I have no clue why they thought any of that showed their neutrality.
Last June, the appellate court paused the ruling from going into effect because the Trump-appointed judge “likely exceeded the district court’s civil contempt authority.” But an officially ruling had not been issued…
Last week, the (notoriously conservative) 5th U.S. Circuit Court of Appeals ruled unanimously that Judge Brantley Starr overstepped his bounds when he told Southwest’s employees to attend ADF-led training.
… when a court’s contempt sanction in a civil matter is both overbroad in scope and undoubtedly punitive in nature, the judiciary risks appearing contemptuous like the contemnor. In this civil case, the sanction plainly exceeded remedial bounds and sought to punish Southwest’s attorneys through a directive that did little to coerce the airline’s compliance with the district court’s judgment.
While they also reversed a specific finding that Southwest discriminated against Carter because of her religious beliefs, they did not undo the jury’s decision or Carter’s financial compensation.
That means the original bad decision still stands while the idiotic additional punishment goes away. It’s ultimately a victory for Carter despite Southwest appearing to win this round. The Trump judge who demanded the ADF training in the first place will never face any real consequences for it.
It never should have gotten to this point. Carter was never fired for her religious faith; she was fired for being a terrible employee. The problem with professional victims is that they can never admit they’re the problem.
(Portions of this article were published earlier)
Its simply mind-boggling how many of these assertive Christisns collectively harbor a persecution complex, as if they themselves are being personally attacked if no one is receptive of their messages or if they are told to be quiet due to their being obnoxious or their harassing of others. This is especially true within public spaces connected to extensive organizations comprised of tens of thousands of separate individuals with varying viewpoints, such as undoubtedly Southwest Airlines. They do not seem to comprehend that freedom of speech and expression also extends to non-Christians who might not want to hear their rabble.
When conservative Christians talk about religious freedom, they are referring to themselves, and their entrenched sense of privilege. They cry persecution when ever anyone objects to having religion forced on them, but no group would be quicker to persecute others if given the chance. If you want to see what genuine persecution looks like . . . hand power to the preachers.