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Legal experts question judge’s order telling Southwest lawyers to get religious-liberty training

Aug 11, 2023, 3:50 PM

FILE - A Southwest Airlines jet passes luggage carts as it arrives, Dec. 28, 2022, at Sky Harbor In...

FILE - A Southwest Airlines jet passes luggage carts as it arrives, Dec. 28, 2022, at Sky Harbor International Airport in Phoenix. A federal judge has set off a debate among legal scholars by ordering lawyers for Southwest Airlines to undergo "religious-liberty training" by a conservative Christian legal group. (AP Photo/Matt York, File)
Credit: ASSOCIATED PRESS

(AP Photo/Matt York, File)

A federal judge has set off a debate among legal scholars by ordering lawyers for Southwest Airlines to undergo “religious-liberty training” by a conservative Christian legal group.

Critics say that if the judge believes such training is necessary, he should have found a less polarizing group to conduct it.

U.S. District Judge Brantley Starr made the decision after ruling that Southwest was in contempt of court for defying a previous order he issued in a case involving a flight attendant who said she was fired for expressing her opposition to abortion. She sued Southwest and won.

Starr, nominated to the bench by former President Donald Trump, said Southwest didn’t understand federal protections for religious freedom. So this week, he ordered three of the airline’s lawyers to undergo religious-liberty training. And he said that the Alliance Defending Freedom, or ADF, “is particularly well-suited” to do the training.

The group has gained attention — and high-profile court victories — opposing abortion, defending a baker and a website designer who didn’t want to work on same-sex marriages, and seeking to limit transgender rights. It frequently cites First Amendment rights in its litigation.

ADF declined to describe its training or to make a representative available for an interview. In an emailed statement, its chief legal counsel, Jim Campbell, said, “The judge’s order calls for ADF to provide training in religious liberty law — not religious doctrine. It is baseless to suggest that people of faith cannot provide legal instruction if their beliefs differ from their audience’s.”

Southwest has appealed Starr’s sanctions, which also include emailing a statement that the judge wrote to its flight attendants to say that airline is not permitted to discriminate based on employee’s religious beliefs. The airline, which is based in Dallas, is already appealing the jury verdict in the flight attendant’s favor.

David Lopez, who was general counsel of the U.S. Equal Employment Opportunity Commission during the Obama administration, said Southwest could argue that training by a conservative Christian group violates the religious rights of its lawyers, especially if any follow other faiths or none at all.

Lopez said the EEOC often insisted on training for employers found to have discriminated, but that the agency and the company would agree on who would conduct that training.

“What happened here, I’ve never seen that,” said Lopez, who is now a law professor at Rutgers University.

ADF is “just one voice” on the subject of religious freedom, Lopez said, “and they are a voice that many people view as being very controversial and very narrow.”

Douglas Laycock, an authority on religious-liberty law who recently retired as a law professor at the University of Virginia, said judges can order extra measures such as training to make sure defendants comply with the rest of an order, but Southwest still has avenues to appeal.

Southwest could argue “that ADF has extreme views on these issues and will give distorted training, and there is something to that,” Laycock said. Or, he said, the airline could argue that ADF is essentially a religious organization, and that requiring Southwest lawyers to take training from the group would violate their rights.

“ADF presents itself as a religious-liberty organization, but it is really a Christian organization,” Laycock said. “It isn’t much interested in anyone else’s religious liberty.”

Steven Collis, director of a law and religion clinic at the University of Texas at Austin, said it is within a judge’s authority to order this kind of training.

“I do think it’s questionable ordering that training to be done by a group that is clearly partisan on issues related to religious freedom,” Collis added. “He could have avoided criticism by ordering this from someone who is a little more neutral … use an academic instead.”

Judge Starr was nominated by Trump in 2019 and confirmed by the Senate, then under Republican control, in a party-line, 51-39 vote.

The nephew of Kenneth Starr, a former federal judge who led the investigations into former President Bill Clinton that led to Clinton’s impeachment in a sex scandal, Starr graduated from Abilene Christian University and earned a law degree from the University of Texas at Austin, where he was editor of a conservative law journal.

Starr held senior jobs in the Texas Attorney General’s office. According to a questionnaire he filled out for the Senate Judiciary Committee, he worked on a lawsuit against the Obama administration for telling public schools to let transgender students decide which restrooms to use, defended a state law that banned sanctuary cities for immigrants, and sued to block a plan to defer deportation of some undocumented immigrants.

Starr, who had not previously served as a judge at any level, is a member of the Federalist Society, a conservative legal group.

The Southwest case stems from the airline’s decision to fire Charlene Carter, a flight attendant for more than 20 years, after a series of social media posts and private messages aimed at the president of the flight attendant’s union for attending an anti-Trump, pro-abortion-rights march in Washington in January 2017.

In one message Carter told the union president, “You truly are Despicable in so many ways,” and attached video that purported to show an aborted fetus. An hour later, she sent another video of an aborted fetus.

Carter took the case to arbitration but lost. She then sued, and last year a jury in Dallas awarded her $5.1 million from Southwest and the union. Starr later reduced the judgment to about $800,000 to, he said, comply with federal limits on punitive damages.

Both the airline and the union are challenging the decision before the 5th U.S. Circuit Court of Appeals, which has not decided whether to hear the case.

Carter is represented by lawyers from the National Right to Work Legal Defense Foundation, which argues that union-represented workers should not be required to pay dues.

After Starr’s ruling this week, foundation President Mark Mix said, “Hopefully this order provides hope to other independent minded workers that their right to express their religious dissent against union and company political agendas cannot so easily be waved away.”

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Legal experts question judge’s order telling Southwest lawyers to get religious-liberty training