Starr’s latest ruling came in a case involving Charlene Carter, a Southwest flight attendant who sent graphic antiabortion messages to a fellow flight attendant and called her “despicable.” Southwest fired Carter, saying her conduct “crossed the boundaries of acceptable behavior.” Carter sued, claiming that Southwest discriminated against her based on her religious beliefs. A jury agreed; Southwest is appealing.
In early August, however, Starr, a Donald Trump appointee who sits in Dallas, found that Southwest hadn’t accurately informed its flight attendants about his ruling in the case or the fact that their religious freedom is protected under Title VII, the federal employment discrimination law. So he ordered three Southwest lawyers to undergo “a minimum” of eight hours of religious liberty training — to be conducted, he specified, by the Alliance Defending Freedom.
Starr’s order referred to “esteemed nonprofit organizations that are dedicated to preserving free speech and religious freedom,” but ADF is no neutral, academic entity. It is a full-throated, highly effective combatant in the culture wars, with particular — and to many people, particularly offensive — views about abortion and LGBTQ+ rights. It argued in favor of criminalizing homosexual conduct and against gays in the military. It litigated cases defending the rights of Christian bakers and website designers to refuse to provide services for same-sex weddings; it’s in court right now arguing that the abortion drug Mifepristone should be taken off the market.
All of this is fully within ADF’s constitutional rights. But forcing lawyers to submit to indoctrination by ADF embodies the antithesis of the First Amendment values that Starr purports to be protecting. Somehow, he is exquisitely sensitive to a perceived bias against Carter — although there’s scant evidence the airline was motivated by animus toward her faith — and resolutely oblivious to the offensiveness of required reeducation training at the hands of ADF.
Hence Starr’s opinion Thursday declining to stay the training order while the U.S. Court of Appeals for the 5th Circuit considers Southwest’s appeal. “Religious liberty training won’t harm Southwest,” Starr wrote. “But staying it will harm the flight attendants who still don’t know the truth about the injunction that protects them.”
Imagine that you are one of the lawyers ordered to submit to this instruction. Imagine that you are gay, or simply that you vehemently disagree with ADF’s view of constitutional rights and how to navigate the tensions between religious freedom and other protections. Eight hours — minimum! — of mandatory indoctrination sounds like harm to me. And Southwest had a right — a constitutional right — to issue a memo to its employees expressing its disagreement with the jury verdict and explaining its plans to appeal.
As Southwest wrote in arguing for the stay, “By ordering religious-liberty training — with the unprecedented requirement that the ADF, a group with a professed religious viewpoint, conduct the training — the Court is sanctioning Southwest for its own protected activity of expressing its viewpoint.”
That part didn’t matter to Starr. “The court is confident ADF will offer educational background on religious liberties and the workplace — a concept Southwest has failed to grasp at any stage of this six-year-old case,” he wrote.
Southwest, he added, “doesn’t make any legal argument for why training with an ‘ideological organization’ is unconstitutional or otherwise contrary to law.” ADF, he insisted, “appears well-suited to train Southwest’s lawyers on a topic with which the lawyers evidently struggle.”
Seriously? This is a federal judge, sworn to uphold the Constitution and to all appearances heedless of its commands when they conflict with his preconceived positions.
I’m all for judges controlling their courtrooms and policing bad behavior, by lawyers and litigants. When lawyers misbehave, judges possess the authority to hold them in contempt and to issue appropriate orders to prevent further transgressions.
But emphasis on “appropriate.” Southwest’s biggest transgression was issuing a memo to employees saying the judge had found the airline “does not discriminate,” rather than “may not discriminate.” The airline issued a corrected statement and agreed to pay Carter’s legal fees for that part of the dispute.
Even assuming that the lawyers engaged in conduct so egregious that it constituted contempt of court, it’s ludicrous to assert, as Starr did, that the ADF-led training was “the least restrictive means of achieving compliance with the Court’s order.” Other judges have ordered lawyers to submit to training by accredited law schools or to complete additional ethics instruction. But Southwest said there was “no comparable decision” subjecting lawyers to training by an ideological advocacy group such as ADF.
Appeals courts are understandably reluctant to second-guess how trial judges run their courtrooms. The 5th Circuit is the most conservative in the country. Stopping this egregious order from taking effect might not be the easiest lift. But I cannot believe we live in a country where this court-ordered indoctrination is tolerable.
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