Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: It appears to be unprecedented. A judge has ordered three
Speaker 2: lawyers for Southwest Airlines to attend religious liberty training from
Speaker 2: a conservative Christian legal advocacy group, the Alliance Defending Freedom,
Speaker 2: a prominent player in several major legal battles over abortion
Speaker 2: and LGBTQ rights. Texas Federal Judge Brantley's Star, a Trump appointee,
Speaker 2: found Southwest had flouted his order in a religious discrimination case.
Speaker 2: Southwest is appealing to the Fifth Circuit. Joining me is
Speaker 2: Shao Wang, a professor at the University of Virginia Law School.
Speaker 2: This judge's order, how would you characterize it on a
Speaker 2: scale from ordinary to shocking?
Speaker 1: But I think that the order here is highly unusual,
Speaker 1: and it's probably highly unus usual for three different reasons.
Speaker 1: The first reason is that sanctions in general are pretty
Speaker 1: sparingly imposed, and here there's certainly questions about whether Southwester
Speaker 1: in fact complied with the judge's original direction in the
Speaker 1: first place, and Southwest is of course appealing that point.
Speaker 1: The second reason that makes this highly unusual is that
Speaker 1: no one asked for this particular sanction the sanction of
Speaker 1: taking religious liberty training. When the plaintiff originally filed her
Speaker 1: motion for sanctions in December of twenty twenty two, she
Speaker 1: asked for attorney's fees and costs and certain financial penalties
Speaker 1: and a new corrective notice to be supplied to Southwest workers,
Speaker 1: and she got that. But in May this year, the
Speaker 1: judge said that he was contemplating an additional sanction, which
Speaker 1: was religious liberty training. And I think the third thing
Speaker 1: that makes this sort of a highly unusual order is
Speaker 1: who is supposed to give that training. It is the
Speaker 1: Alliance Defending Free, which is not an organization that ordinarily
Speaker 1: holds itself out as providing continuing legal education, but is
Speaker 1: in fact an advocacy organization with a specific point of
Speaker 1: view and a number of high profile cases in the
Speaker 1: federal courts.
Speaker 2: Let's put this into context. So this was a case
Speaker 2: where a jury awarded five point one million dollars for
Speaker 2: a Southwest flight attendant in her religious discrimination suit. And
Speaker 2: it's been going on for.
Speaker 1: A while, that's right. The origin of this suit was
Speaker 1: around twenty seventeen when Southwest terminated flight attendant Charlene Carter
Speaker 1: in Southwest Miss Carter had sent a number of messages
Speaker 1: on social media to the airlines then union president, and
Speaker 1: those messages concerned abortion. They included graphic videos of aborted
Speaker 1: infants and other messages, and Southwest believed that that violated
Speaker 1: its social media and harassment policies. Miss Carter, on the
Speaker 1: other hand, insisted and stated that those messages were an
Speaker 1: expression of her religious beliefs and that she was terminated
Speaker 1: based on her expression of those religious beliefs in violation
Speaker 1: of federal law.
Speaker 2: The judge, as you mentioned, he required that a notice
Speaker 2: be sent to flight attendants after the jury's verdict. Is
Speaker 2: that unusual or is that par for the course?
Speaker 1: I think it's fairly par for the course. I think,
Speaker 1: especially in a case like this one that involves the
Speaker 1: intersection between federal law and a company's policies, it's pretty
Speaker 1: common for a company to say exactly what happened in
Speaker 1: this litigation and whether it is making any changes as
Speaker 1: a result. But in the judge's view, the specific notice
Speaker 1: that Southwest sent out did not comply with the court's order.
Speaker 1: In fact, it was intentional non compliant.
Speaker 2: He wanted them to send a notice saying that quote,
Speaker 2: it may not discriminate against Southwest flight attendants for their
Speaker 2: religious practices and beliefs. Instead, Southwest send a notice saying
Speaker 2: it does not discriminate, and also double down sending a
Speaker 2: memo defending the policy and telling flight attendance to adhere
Speaker 2: to the policy that was behind the firing. So does
Speaker 2: it seem like Southwest didn't comply with the judge's order.
Speaker 1: I think that that's something that Southwest is contesting right now.
Speaker 1: It's contesting that on appeal. I think that in the
Speaker 1: judge's view, the judge threw an analogy in his order
Speaker 1: to the story in Genesis where he says that this
Speaker 1: is the equipment of God saying that you may not
Speaker 1: eat from the tree, and Adam saying I do not
Speaker 1: eat from the tree, and having the apple core at
Speaker 1: his feet. I think in this analogy, the judge or
Speaker 1: the court would be God, Southwest would be Adam, and
Speaker 1: the apple core would be evidence of its religious discrimination
Speaker 1: against Miss Carter. The judge also pointed out a memo
Speaker 1: which it says essentially ambassid Miss Carter. I think those
Speaker 1: are the court's words, and I read the memo and
Speaker 1: I think that there's a lot more gray there because
Speaker 1: it says that in ambassiedness, Carter for her inappropriate harassing,
Speaker 1: offensive communications, and I think it suggests that it sort
Speaker 1: of still holds that view, but if you reads the memos,
Speaker 1: it uses some pretty important modifiers. It uses a modifier
Speaker 1: at the time we believed these messages were inappropriate, harassing
Speaker 1: and offensive. We felt past tense, we felt across the boundaries.
Speaker 1: But that's different than saying you still believe it. Is.
Speaker 2: There training that's common for judges to order for lawyers.
Speaker 1: There is the common training that the judge would order
Speaker 1: would be to say, hey, take some continuing legal education classes,
Speaker 1: and here are a number of different providers that you
Speaker 1: could choose from, and that's something that we've seen in
Speaker 1: a number of different cases. I think what makes this
Speaker 1: unique is that Alliance Defending Freedom doesn't hold itself out
Speaker 1: as conducting trainings regularly, and in fact holds itself out
Speaker 1: as an advocacy organization and says that it is one
Speaker 1: of the leading Christian law committed to protecting religious freedom,
Speaker 1: free speech, marriage and the family, plantal rights, and the
Speaker 1: sanctity of life for the express goal of keeping the
Speaker 1: doors open for the Gospel and Jesus Christ, so certainly
Speaker 1: it has its own litigation agenda, and it had its
Speaker 1: litigation agenda for a specific purpose. I think that there
Speaker 1: are certainly organizations like the Practicing Law Institute, certain law schools,
Speaker 1: the ABA, who would offer, say, a course on the
Speaker 1: First Amendment, or developments in religious liberty law that are
Speaker 1: different from the positions that are religious advocacy organization like
Speaker 1: Aliance Defending Freedom might offer.
Speaker 2: And this group, Beliance to Fending Freedom, has been involved
Speaker 2: in some of the biggest cases at the Supreme Court
Speaker 2: involving religious liberty and LGBTQ rights. It helped convince the
Speaker 2: Supreme Court to overturn the constitutional right to abortion last year.
Speaker 2: A few years ago, it represented the Colorado baker who
Speaker 2: didn't want to make a wedding cake for gay couples.
Speaker 2: And this term it successfully defended the Colorado website designer
Speaker 2: who didn't want to design a wedding website for gay couples.
Speaker 2: And it's involved in this case challenging the abortion pill
Speaker 2: mif A pristone. But the group's chief legal counsel, Jim Campbell,
Speaker 2: told the Associated Press the judges order calls for ADF
Speaker 2: to provide training in religious liberty law, not religious doctrine.
Speaker 2: It's baseless to suggest that people of faith cannot provide
Speaker 2: legal instruction if their beliefs differ from their audiences.
Speaker 1: I think that from my review of ADF's website and
Speaker 1: my understanding, it in fact holds itself out as providing
Speaker 1: one specific type of legal training and through its Legal Academy,
Speaker 1: and it describes that legal academy as combining outstanding training
Speaker 1: with an unwavering commitment to Christian principles. And at the academy,
Speaker 1: in addition to the training, you will join an inspiring
Speaker 1: worship and devotions. Each day you'll be trained effectively to
Speaker 1: advocate for religious liberty, free speech, life, and marriage in
Speaker 1: the family. I think that if that is the type
Speaker 1: of training that's being offered, that's not the same as
Speaker 1: necessarily what the law is and understanding the state of
Speaker 1: play of a doctrine. Now, certainly, I don't think it's
Speaker 1: outside the realm of possibility for ADF to provide a
Speaker 1: more neutral form of training and understanding where the law stands.
Speaker 1: But I don't think we necessarily have a record of that.
Speaker 1: And if the judge had ordered in this case that
Speaker 1: the Southwest Attorneys take training from say a law school
Speaker 1: or practicing lawns to you'd have a syllabus or you'd
Speaker 1: have materials that you would cover during that training. Here,
Speaker 1: from what we know, ADF's materials fairly explicitly try to
Speaker 1: integrate its advocacy into its trainings themselves.
Speaker 2: So the judge is a Trump appointee with some conservative bonafides.
Speaker 1: So Judge Stars, as you pointed out, was appointed by
Speaker 1: Donald Trump e've be in twenty nineteen. He is the
Speaker 1: nephew of Ken Starr, who was the Special Council of
Speaker 1: course under President Clinton investigating the Whitewaters matter. This Judge
Speaker 1: Star who has issued this order. Before he joined the bench,
Speaker 1: he worked in Texas state government on the Attorney General's
Speaker 1: office and has been a member of the Federalist Society
Speaker 1: since I believed the early two thousands. When he was
Speaker 1: in law school, he was editor in chief of the
Speaker 1: Texas Law Review in Politics, which is a fairly conservative
Speaker 1: legal publication.
Speaker 2: So Southwest is appealing, what would some grounds for appeal be?
Speaker 1: Southwest It's appealing even the initial judgment that was at
Speaker 1: issue here, and I think it has some grounds there
Speaker 1: because you know, remarkably miss Carter when she originally filed
Speaker 1: suit back in twenty seventeen, she did not say explicitly
Speaker 1: in her complaint that she was making religiously motivated speech.
Speaker 1: She did not identify as a Christian. That only came later,
Speaker 1: about a year later into the case. So I think
Speaker 1: Southwest has some grounds to say that even the initial
Speaker 1: judgement was off base or incorrect. But even if Southwest
Speaker 1: were to lose there, I think Southwest would challenge and
Speaker 1: say that it in fact did comply with Judge Starr's order,
Speaker 1: and if it did not, that that noncompliance was not
Speaker 1: intentional in fact, to try to do so. It didn't succeed.
Speaker 1: But the action that one might take is not necessarily
Speaker 1: religious liberty training, but it's to comply with the order
Speaker 1: to send out a new notice and to pay certain
Speaker 1: financial fees and penalties, which is something that it might
Speaker 1: be willing to do. So. I think Southwest has signaled
Speaker 1: at least that it wants reconsideration of many different aspects
Speaker 1: of the district court proceedings in this case, as far.
Speaker 2: As the religious training could. Southwest argue that ADF has
Speaker 2: extreme views and so it's unfair to subject the lawyers
Speaker 2: who may be of different religious backgrounds to those views.
Speaker 1: Certainly, I think that that's a great point, June, and
Speaker 1: I think what it would do is to point to
Speaker 1: the fact that Alliance Defending Freedom is an advocacy organization
Speaker 1: and its training is supposed to integrate Christian faith into
Speaker 1: one's practice in order to promote certain ideals held by
Speaker 1: the Alliance Defending Freedom. But Southwest may not hold those ideals,
Speaker 1: and Southwest attorneys may not be comfortable receiving such instruction.
Speaker 1: I think that the gap that you're talking about is
Speaker 1: sort of the gap between where the law is and
Speaker 1: sort of where the law should be according to the
Speaker 1: Alliance Defending Freedom. That's a fairly big gap in some circles,
Speaker 1: and I think that that is the source of some
Speaker 1: of the controversy issue here.
Speaker 2: This appeal, though, would be going to the Fifth Circuit,
Speaker 2: which many consider the most conservative appellate court in the country,
Speaker 2: so Southwest is not likely to find a receptive appellate
Speaker 2: panel there.
Speaker 1: I think that certainly the makeup of the court may
Speaker 1: make a difference in the result here, but this is
Speaker 1: not necessarily the end of the line. This might be
Speaker 1: sort of subject to further appeal well, and it is
Speaker 1: possible that the Fifth Circuit might nevertheless uphold some form
Speaker 1: of sanctions, but as we've discussed, may offer a middle
Speaker 1: ground where, instead of selecting or the live spending freedom
Speaker 1: allowed Southwest to choose between a number of different options.
Speaker 1: So I think that certainly the makeup of the court
Speaker 1: might make a difference, But there are colorable arguments that
Speaker 1: Southwest might raise on appeal that that may lead to
Speaker 1: a slightly different outcome.
Speaker 2: So I want to ask you a broad question. Do
Speaker 2: you think that lower courts are becoming more raised in,
Speaker 2: you know, leaning in favor of religious liberties because the
Speaker 2: Supreme Court has in recent years never ruled against religious liberty.
Speaker 1: Yeah, I absolutely think that that is something that is happening.
Speaker 1: I think certain courts, as you point out, certain courts
Speaker 1: like the Fifth Circuit, possibly the Eleventh Circuit, are leaning
Speaker 1: into this point. They're trying to read the tea leaves
Speaker 1: of where the Supreme Court is going. But that said,
Speaker 1: I think even this past term, the Streme Court has
Speaker 1: signaled that sometimes circuits go too far and that there
Speaker 1: are some circuits that go beyond where the Supreme Court
Speaker 1: wants to go. So certainly I think the Fifth Circuit
Speaker 1: is trying to read the TV's is trying to perhaps
Speaker 1: take expansive views of religious liberty doctrine, but I think
Speaker 1: that it's not a guarantee that those views will be
Speaker 1: affirmed by the Streame Court. Certainly, the Streame Court has
Speaker 1: definitely trended towards that direction, and that's been the subject
Speaker 1: of much debate and scholarship, but it's unclear in every
Speaker 1: specific case what the result might be.
Speaker 2: Thanks so much, Shao. It's your first time on the show,
Speaker 2: and I hope you'll come back again. That's Professor Joao
Speaker 2: Wang of the University of Virginia Law School, And that's
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
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Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
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