Judge halts "religious-liberty training" order as Southwest argues it's unconstitutional

Airline also argues sanctions go beyond the civil-contempt power. U.S. District Judge Brantley Starr has put the sanctions on hold for 30 days.

Photo by Forsaken Films on Unsplash

The “religious-liberty training” ordered by a federal judge earlier this month as part of a contempt order in a religious-discrimination case brought against Southwest Airlines is on hold for now, under a temporary order issued by the judge on Thursday.

Lawyers for Southwest Airlines are appealing the sanctions order and on Wednesday argued to U.S. District Judge Brantley Starr, the judge who issued it, that those sanctions are unconstitutional and go beyond the court’s contempt powers. They did so as part of a request that he put the sanctions order on hold while they appeal it.

In response, Starr issued an “administrative stay” on Thursday that will last for 30 days while he considers the airline’s request for a stay of the order pending its appeal to the U.S. Court of Appeals for the Fifth Circuit.

The temporary stay means the lawyers will not need to attend a “religious-liberty training” run by Alliance Defending Freedom, a far-right Christian legal advocacy group specified by Starr in the order, on the timeline initially ordered by the judge.

Starr himself has a bit of a history. The nephew of Kenneth Starr, Brantley Starr is a Trump appointee to the federal bench and a former longtime lawyer in the Texas Attorney General’s Office who is also a longtime member of the Federalist Society.

This particular dispute has arisen in a long-running case brought by a former flight attendant who won a jury-trial on her Title VII claim alleging that she had faced religion-based discrimination. Southwest is appealing that verdict, which followed a long and winding path taken by Charlene Carter in the case and involves, among other things, her sending photographs of aborted fetuses to her union president. As part of the post-trial orders, however, Southwest was supposed to send out a notice that it “may not” discriminate against flight attendants on the basis of their religious practices and beliefs. It instead sent out a notice that it “does not” discriminate and a follow-up memorandum about “civility,” which led Carter to seek sanctions against the airline.

In the court’s contempt order issued on Aug. 7, which Law Dork covered previously, U.S. District Judge Brantley Starr ruled that, because of those steps, the airline had not properly implemented the post-trial orders and held Southwest in contempt.

In addition to ordering the airline to issue a corrective notice to the flight attendants, something that the airline’s counsel had already said the airline was willing to do, Starr also ordered three of the airlines lawyers involved in preparing the email to attend “religious-liberty training” — and specifically by Alliance Defending Freedom, an extremist legal advocacy organization that advances far-right Christian beliefs in its legal advocacy and was not otherwise previously involved in the case. The training was to be completed by Aug. 28.

Southwest Airlines informed Starr two days later — on Aug. 9 — that it was appealing the contempt order to the Fifth Circuit. On Wednesday, lawyers for Southwest asked Starr to put his sanctions order on hold while the airline takes its appeal. In their motion, the lawyers asked first for a temporary, administrative stay of the order — which Carter did not oppose — and then, more broadly, for a stay pending appeal — which it notes that she does.

As for the reason for the stay pending appeal, the lawyers are blunt, arguing that the sanctions order “exceeds the Court’s civil-contempt power, violates the First Amendment, and rests on a jury verdict that the Fifth Circuit is likely to overturn on appeal.”

In their accompanying memorandum of law explaining why that is so, the lawyers lay out the case that contempt was not appropriate here at all.

“While the Court seizes on the difference between ‘may not’ and ‘does not,’ Op. 8-13, the Notice as a whole, together with its attachments, substantially complied with the judgment, and Carter adduced no evidence that any Southwest employee was confused by the Notice,” they write. Even if the distinction is relevant, they add, “When Southwest voluntarily agreed to issue a corrected statement and to pay Carter’s attorneys’ fees for the contempt proceedings, it satisfied the remedial purposes of contempt, and there was no need for a contempt finding, much less authority to order further sanctions.”

That’s the basic argument against any contempt finding. Then they focus on the additional “religious-liberty training” requirement, highlighting the points noted above in arguing that it goes beyond a court’s civil-contempt power and is unconstitutional.

“Civil contempt sanctions are permissible only to secure a party’s compliance with a court order or compensate for losses from noncompliance,” they lawyers note, a purpose that renders contempt unnecessary here given that Southwest agreed to send a corrective notice and paying attorneys’ fees for the sanctions request. “Imposing sanctions like religious-liberty training that go beyond remedying noncompliance or compensating Carter would require criminal contempt proceedings accompanied by certain protections, including notice of criminal proceedings.”

Then, they move on to the First Amendment: “The Contempt Order violates Southwest’s First Amendment rights by punishing Southwest for protected speech and conditioning the propriety of Southwest’s future speech on religious-liberty training,” the lawyers argue.

The lawyers argue that the training requirement “punishes Southwest for speaking on a matter of fundamental importance: its disagreement with, and its right to appeal, a decision that it believes to be wrong in an area of law that is in flux.” Because the court specifically mentioned the possibility of future memos from the airline as a reason to justify the training, the lawyers argue that makes the sanctions order “a content-based prior restraint on Southwest’s speech that is doubly unconstitutional.”

The airline’s lawyers also take specific aim at the requirement that the training come from Alliance Defending Freedom, arguing that the specific appointment “only exacerbates the problem” when coming from “an ideological organization with a particular viewpoint on what the law requires.”

An appointment of this type is “unprecedented,” they argue.

Notably, the airline’s legal team now includes Skadden, Arps, Slate, Meagher & Flom LLP partner Shay Dvoretzky — who has argued before the Supreme Court more than a dozen times and is the head of the firm’s Supreme Court and appellate practice group — and Parker Rider-Longmaid, counsel at the firm and a lawyer who also has argued before the Supreme Court. Previously, the airline had been represented on filings in the sanctions dispute by lawyers from Reed Smith, a firm known for its employer-side employment law practice, and Ryan Law Partners, a Texas firm.

In addition to granting the administrative stay for 30 days, Starr laid out a timeline for consideration of the airline’s request for a stay pending appeal.

Carter may file a response to Southwest's motion to stay on or before August 24, 2023. Southwest may file a reply on or before August 28, 2023. The Court will promptly rule on the motion after briefing is complete. If the Court denies Southwest's request for a stay, Southwest may use any remaining time in the 30-day administrative stay to seek a stay from the Fifth Circuit.

For now though, the religious-liberty training is on hold until at least mid-September — but Southwest’s choice of new counsel suggests it is willing to take this to the Supreme Court if necessary, as it should.