Southwest Religious Training Clash Tests Judge’s Sanctions Power

A fight over court-ordered training for three Southwest Airlines Co. attorneys by a Christian legal group is set to go before the Fifth Circuit Monday, giving the appeals court a chance to weigh in on whether attorneys can be required to submit to such instruction.

The airline is challenging Texas federal judge Brantley Starr‘s order requiring three of its in-house lawyers to undergo “religious liberty” training by the nonprofit Alliance Defending Freedom. The group has been involved in several high-profile US Supreme Court cases involving LGBTQ+ rights and abortion services in recent years.

Starr, a Trump appointee who took the bench in 2019, ordered the training in an employment bias case after finding Southwest willfully disregarded a prior order requiring it to inform flight attendants that the company “may not” discriminate against them based on religion.

At issue is when district court judges can require attorneys to undergo training for contempt of court, and whether and when advocacy organizations can be designated to provide it. If Starr’s order survives, case watchers say, it could embolden other courts to make similar moves.

“Everyone can picture a future in which courts or administrative agencies send in groups to try to change people’s point of view,” Walter Olson, a senior fellow at the Cato Institute said.

Starr’s order came after a jury found the airline discriminated against anti-abortion flight attendant Charlene Carter when it fired her for messages she sent to her union president, protesting the union’s attendance at the 2017 Women’s March.

Southwest says the training is “unprecedented” and would amount to “reeducation.” Starr was off-base in ordering it, because the airline substantially complied with his may-not-discriminate-notice directive when it informed flight attendants that the company “does not” discriminate based on religion, and emailed them the jury’s verdict in favor of Carter and the court’s subsequent judgment, Southwest says.

Scope of Review

The airline, Carter, and the union, which the jury also found violated Carter’s rights, each appealed portions of the lower court proceedings.

Whether US Court of Appeals for the Fifth Circuit judges Edith Brown Clement, Kurt D. Engelhardt, and Cory T. Wilson will reach the training issue, and the scope of review if they do, is unclear.

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.

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.

Politics or Intolerance?

Civil contempt sanctions are supposed to be limited to what it takes to get a party to comply, University of Miami law professor Jan L. Jacobowitz said. “What does religious liberty training have to do with that?” she said.

It’s not unheard of for courts to impose training sanctions on attorneys, Jacobowitz said. “It’s this particular type of training to be conducted by a court designated organization that’s troubling,” she said.

“The overarching concern is the politicization of the courts,” Jacobowitz said.

Retired University of Virginia law professor Douglas Laycock expressed similar concerns.

“The real problem is to order training by the ADF, which at best is a highly ideological and one-sided organization,” Laycock said. “No one trusts the ADF to give neutral training,” he said.

The ADF, which filed an amicus brief supporting neither party, disagrees with its critics.

It’s “baseless and intolerant to suggest that people of faith cannot provide legal instruction simply because their religious beliefs might differ from their audience’s,” ADF’s chief legal counsel Jim Campbell said in a statement.

ADF lawyers “are some of the most effective religious liberty litigators in America, having won 15 cases” in the US Supreme Court in the last 13 years, Campbell said. “The judge’s order calls for ADF to provide training in religious liberty law—not religious doctrine.”

‘Reeducation’ Concerns

Cato Institute’s Olson questioned whether Starr’s order is really that unprecedented. It’s not unusual for an organization viewed as “intrinsically controversial” or ideological to be designated to provide involuntary training, whether by a court or an administrative agency, though it might be the first time in the area of religion that a party has been sent to a group like the ADF, he said.

He pointed to Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, where a Christian baker was ordered by a Colorado agency to undergo training after being found in violation of a state law for declining to design a wedding cake for a gay couple—training that Justice Neil Gorsuch later referred to as “reeducation,” Olson said.

That’s the same word Southwest uses on appeal. The whole basis of the baker’s lawsuit in Masterpiece Cakeshop was that he was standing on his religious principles, Olson said. So the training Colorado ordered seemed to be directly aimed at that and the state lecturing the baker on something that isn’t necessarily complicated, he said.

It’s easier to categorize what happened in Masterpiece Cakeshop as ideological or reeducation than what happened in Carter’s case, “but the concern is the same,” Olson said.

The ADF represented the Christian baker in Masterpiece Cakeshop.

Starr’s sanctions order is “extraordinary and unusual,” University of Virginia law professor Xiao Wang said. If it stands, other parties may find it problematic if advocacy organizations start getting tapped to do this type of training, he said.

“If Carter had lost her case and faced the prospect of sanctions, she would likely have objected if she’d been ordered to take training from Americans United for the Separation of Church and State,” Wang said.

National Right to Work Legal Defense Foundation Inc.; Pryor & Bruce; and Jenkins & Watkins PC represent Carter. Reed Smith LLP; Skadden, Arps, Slate, Meagher & Flom LLP; and Ryan Law Partners LLP represent Southwest. Law Offices of Cloutman & Greenfield PLLC represents the union.

The cases are Carter v. Local 556, Transport Workers Union of Am., 5th Cir., No. 23-10008, oral argument 6/3/24, Carter v. Sw. Airlines Co., 5th Cir., No. 23-10536, oral argument 6/3/24, and Carter v. Sw. Airlines Co., 5th Cir., No. 23-10836, oral argument 6/3/24.