WEBVTT - Southwest Appeals Religious Training Order

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 2>It appears to be unprecedented. A judge has ordered three

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<v Speaker 2>lawyers for Southwest Airlines to attend religious liberty training from

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<v Speaker 2>a conservative Christian legal advocacy group, the Alliance Defending Freedom,

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<v Speaker 2>a prominent player in several major legal battles over abortion

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<v Speaker 2>and LGBTQ rights. Texas Federal Judge Brantley's Star, a Trump appointee,

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<v Speaker 2>found Southwest had flouted his order in a religious discrimination case.

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<v Speaker 2>Southwest is appealing to the Fifth Circuit. Joining me is

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<v Speaker 2>Shao Wang, a professor at the University of Virginia Law School.

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<v Speaker 2>This judge's order, how would you characterize it on a

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<v Speaker 2>scale from ordinary to shocking?

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<v Speaker 1>But I think that the order here is highly unusual,

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<v Speaker 1>and it's probably highly unus usual for three different reasons.

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<v Speaker 1>The first reason is that sanctions in general are pretty

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<v Speaker 1>sparingly imposed, and here there's certainly questions about whether Southwester

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<v Speaker 1>in fact complied with the judge's original direction in the

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<v Speaker 1>first place, and Southwest is of course appealing that point.

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<v Speaker 1>The second reason that makes this highly unusual is that

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<v Speaker 1>no one asked for this particular sanction the sanction of

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<v Speaker 1>taking religious liberty training. When the plaintiff originally filed her

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<v Speaker 1>motion for sanctions in December of twenty twenty two, she

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<v Speaker 1>asked for attorney's fees and costs and certain financial penalties

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<v Speaker 1>and a new corrective notice to be supplied to Southwest workers,

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<v Speaker 1>and she got that. But in May this year, the

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<v Speaker 1>judge said that he was contemplating an additional sanction, which

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<v Speaker 1>was religious liberty training. And I think the third thing

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<v Speaker 1>that makes this sort of a highly unusual order is

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<v Speaker 1>who is supposed to give that training. It is the

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<v Speaker 1>Alliance Defending Free, which is not an organization that ordinarily

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<v Speaker 1>holds itself out as providing continuing legal education, but is

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<v Speaker 1>in fact an advocacy organization with a specific point of

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<v Speaker 1>view and a number of high profile cases in the

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<v Speaker 1>federal courts.

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<v Speaker 2>Let's put this into context. So this was a case

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<v Speaker 2>where a jury awarded five point one million dollars for

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<v Speaker 2>a Southwest flight attendant in her religious discrimination suit. And

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<v Speaker 2>it's been going on for.

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<v Speaker 1>A while, that's right. The origin of this suit was

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<v Speaker 1>around twenty seventeen when Southwest terminated flight attendant Charlene Carter

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<v Speaker 1>in Southwest Miss Carter had sent a number of messages

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<v Speaker 1>on social media to the airlines then union president, and

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<v Speaker 1>those messages concerned abortion. They included graphic videos of aborted

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<v Speaker 1>infants and other messages, and Southwest believed that that violated

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<v Speaker 1>its social media and harassment policies. Miss Carter, on the

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<v Speaker 1>other hand, insisted and stated that those messages were an

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<v Speaker 1>expression of her religious beliefs and that she was terminated

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<v Speaker 1>based on her expression of those religious beliefs in violation

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<v Speaker 1>of federal law.

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<v Speaker 2>The judge, as you mentioned, he required that a notice

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<v Speaker 2>be sent to flight attendants after the jury's verdict. Is

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<v Speaker 2>that unusual or is that par for the course?

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<v Speaker 1>I think it's fairly par for the course. I think,

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<v Speaker 1>especially in a case like this one that involves the

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<v Speaker 1>intersection between federal law and a company's policies, it's pretty

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<v Speaker 1>common for a company to say exactly what happened in

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<v Speaker 1>this litigation and whether it is making any changes as

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<v Speaker 1>a result. But in the judge's view, the specific notice

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<v Speaker 1>that Southwest sent out did not comply with the court's order.

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<v Speaker 1>In fact, it was intentional non compliant.

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<v Speaker 2>He wanted them to send a notice saying that quote,

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<v Speaker 2>it may not discriminate against Southwest flight attendants for their

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<v Speaker 2>religious practices and beliefs. Instead, Southwest send a notice saying

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<v Speaker 2>it does not discriminate, and also double down sending a

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<v Speaker 2>memo defending the policy and telling flight attendance to adhere

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<v Speaker 2>to the policy that was behind the firing. So does

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<v Speaker 2>it seem like Southwest didn't comply with the judge's order.

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<v Speaker 1>I think that that's something that Southwest is contesting right now.

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<v Speaker 1>It's contesting that on appeal. I think that in the

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<v Speaker 1>judge's view, the judge threw an analogy in his order

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<v Speaker 1>to the story in Genesis where he says that this

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<v Speaker 1>is the equipment of God saying that you may not

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<v Speaker 1>eat from the tree, and Adam saying I do not

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<v Speaker 1>eat from the tree, and having the apple core at

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<v Speaker 1>his feet. I think in this analogy, the judge or

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<v Speaker 1>the court would be God, Southwest would be Adam, and

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<v Speaker 1>the apple core would be evidence of its religious discrimination

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<v Speaker 1>against Miss Carter. The judge also pointed out a memo

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<v Speaker 1>which it says essentially ambassid Miss Carter. I think those

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<v Speaker 1>are the court's words, and I read the memo and

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<v Speaker 1>I think that there's a lot more gray there because

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<v Speaker 1>it says that in ambassiedness, Carter for her inappropriate harassing,

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<v Speaker 1>offensive communications, and I think it suggests that it sort

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<v Speaker 1>of still holds that view, but if you reads the memos,

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<v Speaker 1>it uses some pretty important modifiers. It uses a modifier

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<v Speaker 1>at the time we believed these messages were inappropriate, harassing

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<v Speaker 1>and offensive. We felt past tense, we felt across the boundaries.

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<v Speaker 1>But that's different than saying you still believe it. Is.

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<v Speaker 2>There training that's common for judges to order for lawyers.

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<v Speaker 1>There is the common training that the judge would order

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<v Speaker 1>would be to say, hey, take some continuing legal education classes,

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<v Speaker 1>and here are a number of different providers that you

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<v Speaker 1>could choose from, and that's something that we've seen in

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<v Speaker 1>a number of different cases. I think what makes this

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<v Speaker 1>unique is that Alliance Defending Freedom doesn't hold itself out

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<v Speaker 1>as conducting trainings regularly, and in fact holds itself out

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<v Speaker 1>as an advocacy organization and says that it is one

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<v Speaker 1>of the leading Christian law committed to protecting religious freedom,

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<v Speaker 1>free speech, marriage and the family, plantal rights, and the

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<v Speaker 1>sanctity of life for the express goal of keeping the

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<v Speaker 1>doors open for the Gospel and Jesus Christ, so certainly

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<v Speaker 1>it has its own litigation agenda, and it had its

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<v Speaker 1>litigation agenda for a specific purpose. I think that there

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<v Speaker 1>are certainly organizations like the Practicing Law Institute, certain law schools,

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<v Speaker 1>the ABA, who would offer, say, a course on the

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<v Speaker 1>First Amendment, or developments in religious liberty law that are

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<v Speaker 1>different from the positions that are religious advocacy organization like

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<v Speaker 1>Aliance Defending Freedom might offer.

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<v Speaker 2>And this group, Beliance to Fending Freedom, has been involved

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<v Speaker 2>in some of the biggest cases at the Supreme Court

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<v Speaker 2>involving religious liberty and LGBTQ rights. It helped convince the

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<v Speaker 2>Supreme Court to overturn the constitutional right to abortion last year.

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<v Speaker 2>A few years ago, it represented the Colorado baker who

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<v Speaker 2>didn't want to make a wedding cake for gay couples.

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<v Speaker 2>And this term it successfully defended the Colorado website designer

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<v Speaker 2>who didn't want to design a wedding website for gay couples.

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<v Speaker 2>And it's involved in this case challenging the abortion pill

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<v Speaker 2>mif A pristone. But the group's chief legal counsel, Jim Campbell,

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<v Speaker 2>told the Associated Press the judges order calls for ADF

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<v Speaker 2>to provide training in religious liberty law, not religious doctrine.

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<v Speaker 2>It's baseless to suggest that people of faith cannot provide

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<v Speaker 2>legal instruction if their beliefs differ from their audiences.

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<v Speaker 1>I think that from my review of ADF's website and

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<v Speaker 1>my understanding, it in fact holds itself out as providing

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<v Speaker 1>one specific type of legal training and through its Legal Academy,

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<v Speaker 1>and it describes that legal academy as combining outstanding training

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<v Speaker 1>with an unwavering commitment to Christian principles. And at the academy,

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<v Speaker 1>in addition to the training, you will join an inspiring

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<v Speaker 1>worship and devotions. Each day you'll be trained effectively to

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<v Speaker 1>advocate for religious liberty, free speech, life, and marriage in

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<v Speaker 1>the family. I think that if that is the type

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<v Speaker 1>of training that's being offered, that's not the same as

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<v Speaker 1>necessarily what the law is and understanding the state of

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<v Speaker 1>play of a doctrine. Now, certainly, I don't think it's

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<v Speaker 1>outside the realm of possibility for ADF to provide a

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<v Speaker 1>more neutral form of training and understanding where the law stands.

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<v Speaker 1>But I don't think we necessarily have a record of that.

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<v Speaker 1>And if the judge had ordered in this case that

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<v Speaker 1>the Southwest Attorneys take training from say a law school

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<v Speaker 1>or practicing lawns to you'd have a syllabus or you'd

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<v Speaker 1>have materials that you would cover during that training. Here,

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<v Speaker 1>from what we know, ADF's materials fairly explicitly try to

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<v Speaker 1>integrate its advocacy into its trainings themselves.

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<v Speaker 2>So the judge is a Trump appointee with some conservative bonafides.

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<v Speaker 1>So Judge Stars, as you pointed out, was appointed by

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<v Speaker 1>Donald Trump e've be in twenty nineteen. He is the

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<v Speaker 1>nephew of Ken Starr, who was the Special Council of

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<v Speaker 1>course under President Clinton investigating the Whitewaters matter. This Judge

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<v Speaker 1>Star who has issued this order. Before he joined the bench,

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<v Speaker 1>he worked in Texas state government on the Attorney General's

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<v Speaker 1>office and has been a member of the Federalist Society

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<v Speaker 1>since I believed the early two thousands. When he was

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<v Speaker 1>in law school, he was editor in chief of the

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<v Speaker 1>Texas Law Review in Politics, which is a fairly conservative

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<v Speaker 1>legal publication.

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<v Speaker 2>So Southwest is appealing, what would some grounds for appeal be?

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<v Speaker 1>Southwest It's appealing even the initial judgment that was at

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<v Speaker 1>issue here, and I think it has some grounds there

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<v Speaker 1>because you know, remarkably miss Carter when she originally filed

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<v Speaker 1>suit back in twenty seventeen, she did not say explicitly

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<v Speaker 1>in her complaint that she was making religiously motivated speech.

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<v Speaker 1>She did not identify as a Christian. That only came later,

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<v Speaker 1>about a year later into the case. So I think

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<v Speaker 1>Southwest has some grounds to say that even the initial

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<v Speaker 1>judgement was off base or incorrect. But even if Southwest

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<v Speaker 1>were to lose there, I think Southwest would challenge and

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<v Speaker 1>say that it in fact did comply with Judge Starr's order,

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<v Speaker 1>and if it did not, that that noncompliance was not

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<v Speaker 1>intentional in fact, to try to do so. It didn't succeed.

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<v Speaker 1>But the action that one might take is not necessarily

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<v Speaker 1>religious liberty training, but it's to comply with the order

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<v Speaker 1>to send out a new notice and to pay certain

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<v Speaker 1>financial fees and penalties, which is something that it might

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<v Speaker 1>be willing to do. So. I think Southwest has signaled

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<v Speaker 1>at least that it wants reconsideration of many different aspects

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<v Speaker 1>of the district court proceedings in this case, as far.

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<v Speaker 2>As the religious training could. Southwest argue that ADF has

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<v Speaker 2>extreme views and so it's unfair to subject the lawyers

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<v Speaker 2>who may be of different religious backgrounds to those views.

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<v Speaker 1>Certainly, I think that that's a great point, June, and

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<v Speaker 1>I think what it would do is to point to

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<v Speaker 1>the fact that Alliance Defending Freedom is an advocacy organization

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<v Speaker 1>and its training is supposed to integrate Christian faith into

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<v Speaker 1>one's practice in order to promote certain ideals held by

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<v Speaker 1>the Alliance Defending Freedom. But Southwest may not hold those ideals,

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<v Speaker 1>and Southwest attorneys may not be comfortable receiving such instruction.

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<v Speaker 1>I think that the gap that you're talking about is

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<v Speaker 1>sort of the gap between where the law is and

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<v Speaker 1>sort of where the law should be according to the

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<v Speaker 1>Alliance Defending Freedom. That's a fairly big gap in some circles,

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<v Speaker 1>and I think that that is the source of some

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<v Speaker 1>of the controversy issue here.

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<v Speaker 2>This appeal, though, would be going to the Fifth Circuit,

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<v Speaker 2>which many consider the most conservative appellate court in the country,

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<v Speaker 2>so Southwest is not likely to find a receptive appellate

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<v Speaker 2>panel there.

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<v Speaker 1>I think that certainly the makeup of the court may

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<v Speaker 1>make a difference in the result here, but this is

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<v Speaker 1>not necessarily the end of the line. This might be

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<v Speaker 1>sort of subject to further appeal well, and it is

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<v Speaker 1>possible that the Fifth Circuit might nevertheless uphold some form

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<v Speaker 1>of sanctions, but as we've discussed, may offer a middle

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<v Speaker 1>ground where, instead of selecting or the live spending freedom

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<v Speaker 1>allowed Southwest to choose between a number of different options.

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<v Speaker 1>So I think that certainly the makeup of the court

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<v Speaker 1>might make a difference, But there are colorable arguments that

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<v Speaker 1>Southwest might raise on appeal that that may lead to

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<v Speaker 1>a slightly different outcome.

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<v Speaker 2>So I want to ask you a broad question. Do

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<v Speaker 2>you think that lower courts are becoming more raised in,

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<v Speaker 2>you know, leaning in favor of religious liberties because the

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<v Speaker 2>Supreme Court has in recent years never ruled against religious liberty.

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<v Speaker 1>Yeah, I absolutely think that that is something that is happening.

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<v Speaker 1>I think certain courts, as you point out, certain courts

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<v Speaker 1>like the Fifth Circuit, possibly the Eleventh Circuit, are leaning

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<v Speaker 1>into this point. They're trying to read the tea leaves

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<v Speaker 1>of where the Supreme Court is going. But that said,

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<v Speaker 1>I think even this past term, the Streme Court has

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<v Speaker 1>signaled that sometimes circuits go too far and that there

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<v Speaker 1>are some circuits that go beyond where the Supreme Court

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<v Speaker 1>wants to go. So certainly I think the Fifth Circuit

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<v Speaker 1>is trying to read the TV's is trying to perhaps

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<v Speaker 1>take expansive views of religious liberty doctrine, but I think

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<v Speaker 1>that it's not a guarantee that those views will be

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<v Speaker 1>affirmed by the Streame Court. Certainly, the Streame Court has

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<v Speaker 1>definitely trended towards that direction, and that's been the subject

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<v Speaker 1>of much debate and scholarship, but it's unclear in every

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<v Speaker 1>specific case what the result might be.

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<v Speaker 2>Thanks so much, Shao. It's your first time on the show,

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<v Speaker 2>and I hope you'll come back again. That's Professor Joao

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<v Speaker 2>Wang of the University of Virginia Law School, And that's

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<v Speaker 2>it for this edition of The Bloomberg Law Show. Remember

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<v Speaker 2>you can always get the latest legal news on our

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<v Speaker 2>Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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<v Speaker 2>and at www dot Bloomberg dot com, slash podcast Slash Law,

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<v Speaker 2>and remember to tune into The Bloomberg Law Show every

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<v Speaker 2>weeknight at ten pm Wall Street Time. I'm June Grosso

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<v Speaker 2>and you're listening to Bloomberg