"Religious-liberty training” order back in effect, training set for 9/26
The Fifth Circuit has not responded to Southwest’s Sept. 6 request for an order to keep the sanctions on hold. [Update: With no order, the sanctions are back in effect.]
The 30-day hold that U.S. District Judge Brantley Starr put on his sanctions order against Southwest Airlines that includes required “religious-liberty training” by the ideological advocacy lawyers at Alliance Defending Freedom expires at the end of Saturday.
The sanctions were issued on Aug. 7 as part of a contempt finding in a long-running religious discrimination case that was brought by Charlene Carter, a former flight attendant fired for sending “graphic and hostile messages“ messages to her coworkers, as Southwest detailed it. (The case itself is quite extreme, as many others have detailed in reporting before and after my reporting at Law Dork on the sanctions order.)
As of now, there is no order from any court stopping Starr’s sanctions order from going back into effect on Sunday.
[Update, 1:01 a.m. ET Sunday, Sept. 17: There was no order from any court extending the stay, so the contempt order and sanctions, including the “religious-liberty training” requirement, is now back in effect.]
(The training itself is not scheduled to take place until Sept. 26, so there is still some time for action after this weekend and before the training would happen.)
Relief won’t be coming from the district court. On Aug. 31, Starr had doubled down on the order, denying a stay pending the appeal of the contempt order sanctioning the airline, in part, by forcing three of the airline’s lawyers to attend ADF-led religious-liberty training.
As a result of that denial, lawyers for Southwest Airlines went to the U.S. Court of Appeals for the Fifth Circuit on Sept. 6, seeking a stay of the district court judge’s contempt order. As the request to the Fifth Circuit puts it, Starr’s order is “unprecedented and unlawful.”
The motion summarizes the argument by stating that the order both “exceeds the civil-contempt power” and “violates the First Amendment.”
As of now, the Fifth Circuit has done nothing in response to the request.
Ordinarily, nine days with no word from the appeals court wouldn’t be notable, but, as I led with here, the administrative stay issued by Starr expires at the end of Saturday. Further, according to Southwest’s stay request at the Fifth Circuit, quick action is needed because the mandated religious-liberty training is currently “scheduled for September 26, 2023.”
Southwest gave the appeals court an alternative path, asking for an administrative stay from the Fifth Circuit “if necessary” so that the court to decide the stay request “on the ordinary stay-motion briefing schedule.” What’s more, Carter “does not oppose Southwest’s request for an administrative stay as necessary,” the filing noted, so long as she is given the appropriate time to file her opposition to the request for a stay pending appeal.
Procedurally, this is a bit complicated. To simplify things, there are four, sometimes overlapping, elements at play here:
Southwest is appealing the merits case — Carter’s win at trial. That’s going on in the background and mainly relevant to the sanctions order insofar as Southwest is arguing that it is likely to win its appeal of the case itself.
Southwest is also appealing the contempt finding and sanctions order.
Southwest is asking for a stay of the contempt finding pending the outcome of the appeal in 2. This is the Sept. 6 filing.
Southwest has asked the Fifth Circuit to issue its own administrative stay if it can’t resolve the request in 3 before the current administrative stay ends (or at least before the training is scheduled). This is the alternative request in the Sept. 6 filing.
If there is no stay pending appeal granted (3) or administrative stay granted (4), then the sanctions order would be in effect and Southwest would have to comply — including attending religious-liberty training run by an anti-abortion, anti-LGBTQ legal advocacy organization — while its appeal of those sanctions remain pending (2).
Law Dork will have more as news happens in this case.
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Over the weekend, read Ana Marie Cox
Always, but especially this incredible story about trauma in The New Republic.
“Me, I think we’re fucking traumatized, and at scale,“ she writes.
A dear friend, Ana pointed me to this part, a section whose data she told me she had to keep re-checking, as a key point to the article and argument:
It’s a long one, but worth your time — and worth all of us thinking about.
Thanks for reading Law Dork, and have a good weekend.