Another day, another extremist ruling by another extremist Trump judge, and this decision — from Texas, no surprise — is straight out of “The Handmaid’s Tale.” The judge held lawyers for Southwest Airlines in contempt of court for their actions in a religious-discrimination case brought by a former flight attendant and ordered them to undergo “religious liberty training.” And not just any instruction, but training conducted by the Alliance Defending Freedom (ADF), a conservative group that litigates against same-sex marriage, transgender rights and abortion rights.
The issue arises from a lawsuit filed by Charlene Carter, a flight attendant for more than 20 years and a longtime antagonist of the Southwest flight attendants union. In 2017, after union members attended the Women’s March under a “Southwest Airlines Flight Attendants” banner, Carter sent Facebook messages to the union president containing graphic antiabortion messages.
“This is what you supported during your Paid Leave with others at the Women’s MARCH in DC …. You truly are Despicable in so many ways,” Carter wrote in one message accompanying a video of an aborted fetus. After the union president complained, Southwest fired Carter, saying her conduct “crossed the boundaries of acceptable behavior,” was “inappropriate, harassing, and offensive,” and “did not adhere to Southwest policies and guidelines.” An arbitrator found that Southwest had just cause for the firing.
Carter, represented by the National Right to Work Committee, sued, claiming Southwest and the union violated her rights under federal labor laws and Title VII. The federal job-bias law bars employers from discriminating on the basis of religion, and Carter claimed she was dismissed because of her sincerely held religious beliefs against abortion. A jury found in her favor, whoppingly so. It awarded her $5.1 million, though U.S. District Judge Brantley Starr reduced the amount to about $800,000. The case is being appealed.
The scary part is what came next. Starr instructed the airline to “inform Southwest Flight Attendants that, under Title VII, [Southwest] may not discriminate against Southwest flight attendants for their religious practices and beliefs.” Instead, Southwest said in a message to staff that the court “ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.”
This sent Starr into orbit. Ticked off by what he viewed as insubordination, Starr in an opinion released this week held Southwest in civil contempt of court. “In the universe we live in — the one where words mean something — Southwest’s notice didn’t come close to complying with the Court’s order,” Starr said.
“To make matters worse,” he said, Southwest had circulated a memo about the decision to its employees repeating its view that Carter’s conduct was unacceptable and emphasizing the need for civility. “Southwest’s speech and actions toward employees demonstrate a chronic failure to understand the role of federal protections for religious freedom,” Starr decreed.
He proceeded to order three Southwest lawyers to undergo eight hours of religious-liberty training — a move he described as “the least restrictive means of achieving compliance with the Court’s order.” Luckily, Starr observed, “there are esteemed nonprofit organizations that are dedicated to preserving free speech and religious freedom.”
And at that point in his opinion, Starr added a footnote citing the ADF’s litigation of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 Supreme Court case involving the baker who refused to make a custom wedding cake for a same-sex couple.
“Some of those entities laudably provide training free of charge for those who have struggled to respect religious liberties in the manner federal law requires,” Starr said, terming the ADF “particularly well-suited to train Southwest’s employees who are most responsible for the communications at issue here.”
Adjectives fail me here. This is not even close to normal. Let’s assume that Southwest trampled on Carter’s religious rights (though this seems highly dubious because there is scant evidence that the airline was motivated by animus toward Carter’s Christian faith). Let’s also assume that Southwest flagrantly defied the judge’s order (though the airline offered to send out a revised notice to employees). Let’s further assume that this behavior justified the extraordinary step of holding the company in contempt. But even if we assume all of that, the notion of subjecting lawyers to a reeducation campaign by the likes of the ADF is tantamount to creating a government-endorsed thought police. Imagine the uproar — and I’m not suggesting these groups are in any way comparable — if a liberal-leaning federal judge ordered instruction on women’s rights (those are constitutionally protected, too) by Planned Parenthood.
The Southern Poverty Law Center has labeled the ADF a “hate group,” and while I think that goes too far, this group is no neutral arbiter of constitutional values — it is an advocacy organization that takes zealous, extreme and, in my view, offensive positions. It has argued that allowing “practicing homosexuals” to serve in the military or adopt children constitutes “attacks on family values” that “will ultimately destroy our society.” In a friend-of-the-court brief in Lawrence v. Texas, the case in which the Supreme Court struck down laws criminalizing homosexual conduct, the ADF argued that they should be upheld because “same-sex sodomy is a distinct public health problem.”
The ADF’s former president co-wrote a book, “The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today,” in which he linked homosexuality and pedophilia: “Despite ever-present denials by homosexual activists, the link to child sex (adults promoting sex with young boys) and homosexual behavior is alarming.” Its website proclaimed: “Redefining marriage is ultimately part of a larger effort to redesign society in order to give social approval of homosexual behavior, and to empower social acceptance of a forgery of gender and sexual practice at odds with natural law and the faith of millions.”
These aren’t random examples; they embody the ADF’s core convictions, beliefs to which members are fully entitled under the First Amendment and that they have every right to promote. But that is a far cry from decreeing this “esteemed” group “particularly well-suited to train Southwest’s employees.”
This is the alarming legacy that former president Donald Trump has left us — a skewed bench that he would augment if reelected. The Trump judges seem to be competing among themselves for who can engage in the greatest overreach.
So, what was Starr thinking? Perhaps one explanation lies in the conservative legal world in which he has been cocooned. The nephew of Kenneth W. Starr and a graduate of Abilene Christian University, Starr attended law school at the University of Texas, where he was editor in chief of a conservative law journal.
As a senior lawyer in the Texas Attorney General’s office, Starr helped sue the Obama administration for directing public school districts to let transgender students use restrooms of their choice. After the Supreme Court ruled that the constitution protects the right to same-sex marriage, Starr defended the right of county clerks with religious objections to refuse to issue marriage licenses to same-sex couples. He advocated defunding Planned Parenthood and defended a Texas abortion law that prohibited the most common method for performing second-trimester abortions, arguing, “The prohibition of this brutal, gruesome, and inhumane procedure promotes respect for the dignity of the life of the unborn.” In the questionnaire he submitted to the Senate Judiciary Committee as part of his judicial nomination, Starr listed participation in the Federalist Society among his pro bono activities.
Conservatives are quick to balk at anything resembling the order that Starr issued when they disagree with the underlying principle. Jack Phillips, the Christian baker in the Masterpiece Cakeshop case, was told by Colorado authorities to attend training sessions on the state’s public-accommodations law — a requirement conservative outlets denounce as a mandatory “reeducation” program.
Justice Neil M. Gorsuch echoed this point at oral argument last year in the case of ADF client Lorie Smith, a website designer and Christian who said she did not want to create sites for same-sex couples. Gorsuch insistently questioned Colorado’s lawyer about what Gorsuch termed the state’s “reeducation training program.”
When the lawyer disagreed, saying it was “a process to make sure [the individual] was familiar with Colorado law, Gorsuch persisted: “Someone might be excused for calling that a reeducation program.”
One wonders what the justice might call Starr’s decree. Because I need no excuses for calling this what it is: a reeducation program — outrageous, unconstitutional and an abuse of judicial authority.