Advisory Opinions - The Clash of Culture and Employment Rights

Episode Date: May 13, 2025

Sarah Isgur and David French are coming to you from Gettsyburg with two free speech cases. Is posting aborted fetuses a religious practice? The Agenda:—Join us May 15th for a special live Advisory Opinions—Substantial disruption and school dress codes—Free speech, employment rights, and religious discrimination—Do we need a third founding? Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, ⁠⁠click here⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to Advisory Opinions. I'm Sarah Isger and that's David French. And we are coming at you from Gettysburg, Pennsylvania, where we are on the 2025 Legal Eagles trip. David, we just finished day one. What do you think so far? It's been great. Now this is a legal podcast, so we're not gonna dive too much into the ins and outs

of the Battle of Gettysburg. But the thing that I've appreciated about it so far was how our guides got us into the heads of the different generals and commanders and basically saying a lot of the easy narratives that you hear about Lee made this mistake or Longstreet made this mistake or Meade did this are based on the very definition of Monday morning quarterbacking. And he's did a really good job of getting us into the heads of each one of the players and how they were operating under very limited information.

And a lot of the mistakes were extremely logical based on what they knew. So it's just, I strongly, listeners, if you've not been to Gettysburg, strong recommend, strong recommend. It's great. And we'll bring you some fun from this Gettysburg trip next week. But for today, we're just recording a normal episode from you, just from the best Western in Gettysburg. Exactly. And in between when we just finished our tour and the visitor center, and then we're heading over to a former Civil War hospital for dinner this evening with several more exciting guest speakers to come.

So also we of course have the May 15th extravaganza coming up where you can watch a live advisory opinions. You can join us for the oral argument that starts at 10 a.m. We'll be live blogging during that with special guests, Chicago law professor, Will Bode and Berkeley law professor Amanda Tyler both friends of the pod David Lapp will also join Zach Shimtaugh the new executive editor of SCOTUS blog all for that live blog then when the oral argument ends we will start a live advisory opinions

with video even if you go to SCOTUSblog.com, of course, the audio will be released as a normal podcast too. So if you, you know, have other plans at noon Eastern on May 15th. Which you shouldn't. No, you obviously not. Obviously not, yeah. But if you do, you'll get this in your normal podcast feed as well on May 15th. So you will not have your normal Thursday AO everyone because, because, well, that's May 15th. Yes.

So, instead, feel free to join us again. We'll start the live blog around 9.45 Eastern. The opinion will get handed down at 10 a.m. We don't know, of course, what that opinion will be yet. And then around 10.05, the oral argument starts. That'll be the live blog. When that finishes, which we're estimating will be two hours, probably a little over two hours. We'll jump right into the live advisory opinions on SCOTUSblog.com.

So what are we doing today? Well, I thought we'd do a little bit of how actually to use SCOTUSblog and the relist watch talking about a case called LM versus Town of Middleboro, Massachusetts. This came up through the first circuit. And then once we finish with that, we've got a Fifth Circuit case for you. It's always a Fifth Circuit case. Oh, and this one's a good one. This involves Southwest Airlines, flight attendant, unions, and a very angry argument over abortion, followed by jury trial,

contempt citation, mandatory training in religion, all kinds of things. This case has got it all. The hottest club in the law world is the Fifth Circuit Southwest Airlines case. All right. Let's start with LM versus Town of Middleboro, Massachusetts. Now if you want to follow along at SCOTUSblog.com, this is docket number 24-410, and you would find a case page for this, and it will say, Pending Petition. Now before we dive into how to use this, I want to just talk about the facts of the case and what the Fifth Circuit held. So we've talked about this case before, actually, when it was coming

up on its cert petition initially back in November of 2024. I'll read you the opener of petitioners brief here. Petitioner L.M. was an honors student at Nichols Middle School in Middleboro, Massachusetts. Respondent, Middleboro Public Schools, has strong views that sex and gender have no biological foundation, are limitless, and are based on personal identity. The school promotes this view in curriculum events and speech, including sponsored posters stating, quote, rise up to protect trans and gender nonconforming students, rainbow flags and signs declaring, quote, proud friendly ally of LGBTQ plus.

And school sponsored celebrations of Pride Spirit Week to foster an outlook that bolsters LGBT rights movements, end quote. Middleboro invites students to adopt and support its views by donning rainbow colors and, quote, wearing pride gear to celebrate Pride Month. Students often wear t-shirts and other apparel with messages the district approves. LM decided to wear a black t-shirt to school that said in black and white letters, there are only two genders. He was called into the principal's office and told to take off his t-shirt. To fast forward a little bit in this story,

he then later returns wearing that same shirt, but now it has masking tape over it. And it says, there are, and then masking tape, censored. And it's written censored on it. The school calls him into the principal's office again and tells him to take off the t-shirt, which he does. A couple other students also come to school wearing the there are censored t-shirt.

They're told to remove those as well. This is a lawsuit about the First Amendment. It's a law school about Tinker v. Des Moines. Remember, that's that quintessential Vietnam-era case where the students wear black armbands to school and the Supreme Court says, yes, they have First Amendment rights even when they're in public school. And it also covers that, well, the real name is Mahoney, but we call it the angry cheerleader case. What rights do students have when their school doesn't like what they're saying?

Now, the First Circuit ruled against the student here, ruled in favor of the school. And I want to read you their closing part of this decision by Judge Barron, no dissents, it was a unanimous opinion by the Third Circuit panel. We close by emphasizing a point that may be obvious, but should not be overlooked. The question here is not whether the t-shirt should have been barred. The question is who should decide whether to bar them, educators or federal judges. Based on Tinker, the cases applying

it in the specific record here, we cannot say that in this instance, the Constitution assigns the sensitive and potentially consequential judgment about what would make an environment conducive to learning at NMS to us rather than to the educators closest to the scene. The judgment of the district court is affirmed. So here's what they found basically. If the school can meet these two factors that the school wins. Factor number one, the expression here on the t-shirt, the expression is reasonably interpreted to demean one of those characteristics of personal identity, given the common understanding that such characteristics are unalterable or otherwise deeply rooted and that demeaning

them strikes a person at the core of his being. Two, the demeaning message is reasonably forecasted to poison the educational atmosphere due to its serious negative psychological impact on students with the demean characteristic and thereby lead to symptoms of a sick school, symptoms therefore of substantial disruption. That's going to be a key term there, right? Substantial disruption. One person's substantial disruption is another person's heckler's veto. And in this public school context, that's going to be a really tough line to draw if you think that is the appropriate line. But David, I start with this, which is they're saying this is a who gets to decide case. And I, you know, am like wearing the who gets to decide t-shirt to

school. Like that's my... But this isn't. Why not? Okay. So it isn't because the default position of the First Amendment is that you do not abandon your rights at the schoolhouse door. The modifier to that is that you don't, that default position of having First Amendment rights

does not entitle you to substantially disrupt the learning environment. That's the test, substantial disruption. And so what you're ending up with are cases like this where essentially you're dealing with anticipatory substantial disruption. So in other words, I think this could really upset people. Well, even if people are upset, that's not substantial disruption. Let's go back to Tinker and black armbands.

Look, I completely get that if you have a trans kid in the school and they see that t-shirt, they're going to feel bad about it. They're not going to like it. But a lot of the students aren't going to like a lot of the pride flags and other things that are put forward in the celebrations of all of this. And so obviously the issue here isn't,

are your feelings impacted? That's not what substantial disruption means. Substantial disruption tends to mean or should mean triggering some kind of physical, triggering an expression that creates by the nature of the expression of disruption. So the difference between saying a black armband versus chanting out loud in math class. But doesn't substantial disruption by its very nature mean a heckler's veto? So the more that students react to your speech,

the less you get the right of speech at the school, whereas once your speech becomes more popular, like imagine wearing the rainbow t speech at the school, whereas once your speech becomes more popular, like imagine wearing the rainbow t-shirt in 1985, and then the school saying, well, that will cause a substantial disruption because kids are going to bully you and pick on you, and we don't want to have you get punched in the nose and stuffed into a locker. So you can't wear your rainbow shirt. And then fast forward, now you can't not wear your rainbow shirt, but that seems like it's left up to the majority.

And that seems like the definition of a heckler's veto. So that's why I kind of corrected myself midstream because I was thinking about the substantial disruption at issue isn't the reaction. It's the actual form of expression. So in other words, it's one thing to have a black arm band versus a bullhorn in class. Or it would be one thing. Or you light fire to a flag in the hallway. In the hallway, lighting fire to a flag in the hallway. Or you do a protest TikTok dance very loudly in the middle of physics class.

So in other words, your expression is disruptive by the nature of the expression versus the disruption that exists is the reaction to the expression. That is where it's the responsibility in my view of the government school to maintain order. In other words, to prevent people from engaging in reaction to the speech that is disruptive. Now here's what's interesting though, Sarah. They're actually kind of trying to walk into a lower standard for harassment here. So when I was reading their two factors, now, because the caveat to all of this is that

even if your speech is not substantially disruptive in the sense of like the bullhorn or lighting a flag on fire, you still can't engage in harassment on the basis of sex, race, et cetera. But we have a test for that. We have a test for that. That's the severe or pervasive conduct, so severe or pervasive that it prevents your ability to participate in the educational activity. That's not what they said in the first circuit.

Okay, let me read you the school's dress code. Okay. I mean, there's like, you know, you can't wear this. You can't wear wheeled shoes, blah, blah, blah. But let me get to the school's dress code. Okay. I mean, there's like, you know, you can't wear this, you can't wear real shoes, blah, blah, blah. But let me get to the relevant part of the dress code. Clothing must not state, imply, or depict hate speech or imagery that targets groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or

any other classification. Any other apparel that the administration determines to be unacceptable to our community standards will not be allowed." So, okay, I see this sort of spectrum, David, of substantial disruption. And it's like, okay, but who's doing the disrupting? Is it the people who see the speech or the people who are doing the speech? Okay. Then along this is the hate speech. But of course, hate speech is sort of in the eye of the beholder, that's the like offensive speech problem. Right. And then on the other side you have the Title VI so severe and pervasive as to prevent a

learning environment for that specific student. Yeah. Not based on a group identity, but like that student, the harassment against specific student, not based on a group identity, but like that student, the harassment against that student. Now, it may be based on their group identity, but it would nevertheless need to be like a specific person was prevented from learning because of this. So it seems to me the dress code itself is problematic because it says, any hate speech targeting groups. Yeah. That dress code reminds me of a case, one of Justice Alito's greatest opinions before he was Justice Alito and he was Judge Alito.

There's a case called Saks versus State College Area School District. I'm very familiar with this case because we use this as precedent in Third Circuit cases when I was litigating. And that was striking down. I can't remember if it was the dress code. I think it was just an anti-harassment policy that was over broad. And that was in high school. And I could not imagine that policy surviving, say, in the third circuit because of that Third Circuit precedent. Okay, so let me give you examples of t-shirts that one could wear to school.

Confederate flag t-shirt, acceptable or not acceptable for the school to say, you may not wear that t-shirt? Not acceptable. Why is that any different than the two genders t-shirt? Not acceptable to say you can't wear it. Oh, oh, sorry. Yeah.

Okay, you may wear a Confederate flag T-shirt to school. Yes. Now, well, let me ask a couple more examples and then I wanna ask another just dress code question. Okay, a T-shirt that says the N-word on it, but like it doesn't say N-word, it says the word. Right, it says the word, right. Now this goes to the,

can a single use of the N-word constitute harassment? Does it matter whether it's a white student or a black student wearing a t-shirt that says the N-word? That's a very good question. I would be very difficult for me to see a situation in which somebody could wear a shirt with the N-word and it not, all day, all day, and it not be harassment under Title VI, not substantial disruption under the First Amendment. If a school finds that kids are wearing shirts that say, there are only two genders, or wearing Confederate flag t-shirts, or wearing Christians are bigots. But let's just do the Christians are bigots. Are you fine with someone wearing that to school?

Christians are bigots. Yeah, not Tommy the Christian, is it? the Christians are bigots. Are you fine with someone wearing that to school? Christians are bigots. Yeah, not Tommy the Christian, is it? Just Christians are bigots. If I'm doing this not under the substantial disruption analysis, I'm doing this under, because under substantial disruption, that is not substantial disruption. Any t-shirt wouldn't be.

No. Unless the t-shirt sends off fireworks. Right, exactly. So a t-shirt cannot be substantial disruption. Right, okay. So my question is, when does a t-shirt rise to the level of a Title VI harassment? Yeah, Christians or bigots?

That's a close one. That's a close one. That feels like the exact same t-shirt as their only two genders. But okay, let's set that aside. You now, your school is devolving into total chaos because everyone is wearing, frankly, their parents' political opinions on t-shirts to school and the parents are fighting a proxy culture war through their middle school students. Which just happens all the time. Yeah. And the school has their hands have been tied, let's say, that the first circuit is, you know,

we're in some other circuit, there is a circuit split over this. And you're in one of those other circuits that says you can't bar the t-shirt. That's not a substantial disruption. Can't the school just bar t-shirts with words on it? Yes. Right, that's neutral? Yeah, so this gets to one of your classic AO doctrines, this is why we can't have nice things.

Correct. So what happens is the school says, well, we don't really wanna have a dress code, so people can dress how they wanna dress, which is the default condition for high school students, they tend to wanna wear what they wanna wear. But then school students. They tend to want to wear what they want to wear. But then they say, we don't want this to get chaotic. So they put together a policy.

And the one I had when I was in high school was you just can't advertise for illicit stuff. Interesting, okay. So you couldn't wear a shirt advertising beer. Yeah, or like the shirt with just a marijuana leaf on it. Right, exactly. You couldn't have that. But anything went politically.

Who the hell Bob Marley? Yeah, right. You couldn't have that. But anything went politically. What about Bob Marley? Yeah, right. But my high school was so apolitical. Like nobody thought to wear a political anything. So what ends up happening is you then say, well, we want people to express themselves, but not too provocatively. And then you get policies like this. Well, I think the problem here is that they do want people to wear the Pride t-shirt and the rainbow t-shirt. They just don't want this t-shirt.

So they actually don't want my dress code of, you must wear a plain colored shirt because they actually, they want the viewpoint discrimination. The point is the viewpoint discrimination. Yeah, yeah, that point, right, exactly, exactly. And so in this case, it's very obvious that they want to use the voice of the school in an ideological way.

And they want to encourage students to share the school's voice. And then somebody comes along on a hotly contested matter and does not share the school's voice. And then at that point, the school, to me, the interesting thing about this case is that in many ways, this is an ideal case for error correction cert grant, which is exactly the kind of cert grant

that we've talked about is not very common. Well, that's a great transition to why you're talking about a case when the cert petition was filed, I'm sorry, the surpetition was filed October 9th, 2024. Why are we talking about this here in May of 2025? Well, the surpetition was filed October 9th. And if you are on the SCOTUS blog case page for Ellen versus town of Middlebury in Massachusetts, you can scroll down to the date and proceedings and orders. And by the way, you'll notice that different things

have different colors here. And there's a little link at the top next to proceedings and orders that will tell you the color coding key. But I thought I'd just spend a moment telling you how normies like lawyer people will use this color-coding key. So if you file a brief at the Supreme Court,

you actually have to use one of a few printers to do that. There's all sorts of rules about the font and you don't use Blue Book citation methods, you use Supreme Court citation methods. It's actually the way that I learned that the leaked draft of the Alito decision in Dobbs was real, was because the footnotes were formatted properly. Oh, interesting. And that would have limited it so much to someone coming up with a fake draft.

Yeah. Like, why would you format the footnotes correctly? The only people who, there's like 50 people in the country who know how to format those footnotes. What are the chances that one of them wanted to write a fake opinion? That would be a deep fake. So anyway, this is all to say the outside of your brief when you send it to the printer must be of a specific color. And so the colors that you're seeing here on the SCOTUS blog are the corresponding colors to the outside of the brief.

And the reason you do this is because, you know, a dropped on a Supreme Court clerk's desk who's responsible for this case are 50 briefs. And so if they're all in different colors, the clerk doesn't have to like go scan through 50 briefs to figure out the one they are wanting to read or go back to. They can just look for the color at least to narrow it down.

And so here's the important briefs colors generally would be red, blue, and gray on a merits case. Red is the person who's appealing, blue is the person who won below, and gray is if they've CVSG'd it. Remember, this is seeking the views of the Solicitor General. So that gray brief means the SG has weighed in. But here, of course, you won't see those colors. Get yellow and orange. Right. Yellow and- And a little dash of brown.

Yeah, a little khaki. I don't know what we'd call that one. So the writ is a white brief, the petition for writ. So that's actually pretty hard because some other things don't have colors. But so you want to find that petition for a writ, first of all, then I mean, for me, at least like skip yellows. And then if it's a merits case, skip the greens, light green, dark green, and then you're looking for that orange and that brown because those are the actual parties filing. Okay. None of that's actually relevant to this case of why we're talking about it. Because...

But it is a fun aspect of the website. It's a, you know, you need to learn how to use SCOTUSblog now that we're running SCOTUSblog. Okay, so if you scroll down to November 19th, you'll see, distributed for conference on 12-6-2024. So that's when the justices are first going to discuss this case and presumably take a vote of whether to grant certiorari.

Well, then if you go down to February 5th, it says, distributed for conference for February 21st. you will see 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 distributed for conferences. The last one of which actually was just posted as we're recording this on Monday, May 12th, that it's going to be once again distributed for conference on May 15th. After they hear that oral argument, the justices will all go into the conference room and this will be one of the cases they discuss. Okay, so what does that mean? Well, we don't know. We never will. We never do. But when something gets distributed again, we call it relisted, and that's usually a really good sign. If you get relisted the first time, you're like,

they're interested in this. They're going to dig into it deeper. Maybe they go around the room and they're like, yeah, this warrants a little more. I want to look, what's the procedural? Make sure it's a good vehicle for what we want to talk about. We're going to go back and have the clerks do some more digging. We're going to talk about it again next conference.

Your sweet spot here is to be relisted about twice. And then you want that vote to grant cert. Relisted 11, well, relisted 10 times. So, it listed 11 times. That's a bad sign. Yeah. Now, I'm not saying it's never happened that a case has been granted cert after this many times. It has, although you think about like Masterpiece Cake Shop, which I guess was relisted 22 times or so. Goodness gracious.

But it had actually only been relisted twice before Justice Scalia died. And then they relisted the whole time when there's only eight justices and they wait for Justice Gorsuch. Now, maybe they wait for him to be the fourth vote to grant. Maybe they're waiting for him because they don't want to grant until they know they're going to have nine justices to decide a case like that. But it's not a great sign that this case has been relisted 11 times. It usually means, and again, not always, we'll find out.

Yeah. But it usually for a case like this is going to mean they are going to deny cert, but that one or more of the justices wants to write a dissent on the denial of cert. of the justices wants to write a dissent on the denial of cert. I'm surprised, David, because as you said, this looks like a pretty good vehicle to extend the angry cheerleader case, to talk about what substantial disruption means. There is a circuit split. This is a pretty clean vehicle. As procedural stuff goes, you have the first circuit making up a new test

about like, well, it's substantial disruption and going after a protected group. Like what? That's not part of the substantial disruption test. Even if it's a different substantial- In a backhanded way, they completely changed, in a backhanded way, they changed the harassment analysis to be a lot more permissive of state intervention. So we saw something in December that I thought was really interesting,

but I'm not sure we talked about a ton, which was back to back, we saw two petitions denied with two opinions or dissents from the denial of cert that both had three justices on them and different justices for that matter. And back up 20 years ago in the Supreme Court, you would have never seen that, not only because there were very few

dissents from denial being written, it was sort of like, yeah, you lost that one, move on with life. There just weren't a lot of separate opinions. It was a more institutional court, so to speak. But also because in the 80s and some of the early 90s, you had justices that believed in what we call either the Join 3 vote, that's not my term for it usually, but that is a term that some people use,

or the Courtesy 4th. Remember, everything at the Supreme Court requires five votes for anything to happen except granting a writ of certiorari, and the Courtesy 4th was, or the join three, remember you're going to go around conference to vote in order of seniority. And so let's say you get to Justice Alito. He can vote no, except if there's three other votes, in which case I'm a join three vote,

meaning I'm a no vote unless this gets three votes, then I'll be the fourth vote. The problem is that the justices who really believed in that retired. And so it appears, if you're reading these tea leaves, that we no longer have maybe any joined three courtesy fourth votes. And I wonder, I'll be really interested on this diss descent from denial, how many justices we get on the descent from denial, if it's three, which means they were just missing one. Sometimes in those cases, we do get a statement on the denial of cert where someone who didn't vote explains why this wasn't a good vehicle, but maybe next time they'd want to take it

or whatever. But I'm just predicting, David, the reason I want to talk about this is because I actually think this case is getting denied. I think it's getting denied too. I mean, when I was younger and more naive, I used to have greater hope as the denial that they kept being relisted. I was like, oh, they're on the verge, they're on the verge. And then I realized, I think the moment that just totally disabused me of any hope with multiple relistings was when they kept relisting these challenges to qualified immunity. Yes, it has to be qualified.

It is. It's qualified immunity. One of my legal crusades. And I just kept getting my hopes up, hopes up, and then boom, done, gone, over. But this case is, in my view, a very good vehicle for a cert grant because of the substantial disruption element here. There has to be greater clarity on this because there are circuits that are allowing these heckler's vetoes type school decisions based on the often the anticipated reaction to speech,

not the actual reaction to speech. And it shouldn't depend on the reaction. It should depend on the action, not the reaction. And so this would be an ideal time to define that more clearly and to more sharply define the relationship between free speech jurisprudence and anti-harassment jurisprudence. I don't think it's going to happen. Well, I'll also mention on SCOTUSblog, there is actually someone who covers this for SCOTUSblog, John Elwood, partner at Arnold Porter. He's a former Kennedy clerk, Yale law grad, sorry.

He does a running column, if you will, for SCOTUS blog called Relist Watch. This is what Relist Watch is about. So if you've ever been scrolling SCOTUS blog and been like, what, huh? Always check this out because this is where the smart lawyers are going to figure out what the court is struggling with. And so from his last relist watch last week, there are seven of these relisty cases pending right now. LM is one of them. We thought it'd be fun to do a deep dive today into just that one. But again, you can check out Relist Watch by John Elwood. Each week that they have the Monday relist order come out. And I hope it was a little helpful to run through how to navigate those case pages on SCOTUS blog. And now we'll take a break to hear from Aura Frames.

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That's A-U-R-A frames.com promo code advisory. Support the show by mentioning us at checkout. Terms and conditions apply. So David, with that, take us over to the Fifth Circuit. Oh boy. You know, interesting, we have some similar themes, but in a very different setting. So you have a very, very, very hot button culture war issue. Instead of this drama unfolding in the halls of a high school, this drama unfolds in the, well, not exactly the halls, it unfolds in the, well, not exactly the halls, and mainly online, but within an airline, Southwest Airlines.

And so you have here a clash between a pro-life Christian plaintiff here, Charlene Carter, and she doesn't love a union, okay, does not love the union at all, has been involved in anti-union speech, which is not really so much at issue here, but it's got some relevance. But starting in 2015 through her firing in 2017, she opposed the Union's leadership,

including its president named Audrey Stone. So she did things like post a recall effort, stuff like that. But in January of 2017, some of you guys might remember the women's march. And the very creative hats and all of that. You're not going to say the names of the hats? Not going to say the names of the very creative pink hats, yes. So in January 2017, Stone and other members of the union attended a union-sponsored Working Women's Committee meeting in Washington. Shortly after the meeting during this trip, some Union members, including Southwest employees, attended the Women's March on Washington.

So you have the Union members at the Women's March. While the party's stipulated facts depict Union members' participation in the Women's March as almost inadvertent, the Union's own messaging frames its members' participation in the Women's March differently. The Union posted the following on its website, Local 556 Working Women's Committee Participates in Women's March. It also posted to its Facebook page a link to an article entitled, Southwest Plains Light Up Pink for the Women's March, and a photo of members participating in the march with the caption,

Members of Local 556 Working Women's Committee are in Washington, D.C. standing up with other union members and participating in the women's march on Washington. They're standing up for women's rights. So Carter sees this as union-sponsored support for abortion because part of the women's march was a rally to preserve abortion rights. So Carter was very upset, so she starts to send some private messages via Facebook Messenger.

The first message containing a video showing an aborted fetus in a metal bowl. And State of the Union was supporting this murder. Carter sent a second message with an image of an aborted fetus in the palm of a person's hand, linking to a video described as an aborted baby alive, even after the abortion. In her message accompanying the video, Carter wrote,

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. By the way, the recall, remember she was trying to trigger a recall, is going to happen. And you're limited in the days you'll be living off of all of the Southwest flight attendants.

Can't wait to see you back on the line." So it just continues. So she's making friends, persuading people. This is a very gentle- Changing hearts and minds. Gentle rebuke. Yeah. She sends a stone, a photo of women wearing costumes

depicting female genitalia. This is the hats we're not talking about. Did y'all dress up like this? Wonder how this will be coded in the LM-2 financials. Cause I know we paid for this along with your despicable party you hosted for signing the contract. The recall is going to happen.

We are even getting more signatures. Finding out what you guys do with our money. Can't wait for you to have to be just a regular flight attendant again and not stealing from our dues. Again, you are nothing but sheep in wolves' clothing or you're so uneducated. You have not a clue who or what you're marching for, etc. Sending these private messages.

In addition to sending private messages, she posts on her public Facebook page, images of aborted fetuses. And so this just keeps happening. And to make a long story short, Southwest gets involved. She says, I'm doing this because I'm a Christian, conservative and pro-life, that abortion was a huge issue for her.

And then Southwest ultimately terminates her. And so she filed a lawsuit and goes to a jury trial. And the jury finds, and the jury just grants her the most sweeping win you can imagine. So the jury finds Southwest discriminated against Carter by discharging her due to her sincerely held religious observances, beliefs, or practices. That the Union treated Carter less favorably than employees due to her sincerely had religious observances. The Union and Southwest unlawfully failed to accommodate Carter.

Southwest failed to prove granting Carter religious accommodation would have imposed undue hardship. On and on, Union violated its duty of fair representation, union discriminated against her. And then this is where it gets even more interesting. It's already like workplace drama, but then Southwest to comply with the judgment reinstates her and there's a injunction entered here. And so Southwest that says that a federal court, I'll just read this from the opinion. To comply with the judgment,

Southwest reinstated Carter, posted the verdict and judgment in all flight attendant break rooms, emailed all flight attendants the verdict and in judgment. This is according to the court's ruling. The email provided commentary stating that a federal court in Dallas entered a judgment against Southwest and ordered us to inform you that Southwest is not discriminating against our employees for their religious practices.

Southwest also published an internal memo that Southwest believed Carter's messages were inappropriate, harassing, and offensive, and extremely graphic, and in violation of several company policies. The memo further stated that although Southwest would implement the judgment, Southwest was extremely disappointed with the court's ruling and appealed the decision to the Court of Appeals. So Carter, as you have already guessed, does not back down. So Carter moves to hold Southwest in civil contempt,

arguing that the communications violated the judgment, Carter contended the email violated the judgment because Southwest said the airline does not discriminate rather than may not discriminate, which is what the court's order required. And so as a result, the court holds the airline in contempt. The district court directed Southwest to circulate a statement verbatim to its flight attendants to set the record straight and ordered three of Southwest's in-house lawyers to attend religious liberty training with the Alliance Defending Freedom. Can we just take a pause right here because while this case is about all the things, it's about,

I also just want to highlight the, oh yeah, look, a district court believes that a party has ignored its order and holds them in contempt. And here you're going to have an appellate court say, yeah, not really. Yeah. And I just, in the context of

the Trump administration and people saying, whether we're in a constitutional crisis or where Donald Trump has ignored an order, for a lot of reporters or people not used to covering the courts, the idea of a district court saying that one party has ignored its order can seem like a shocking development. Here, it's happening right here.

It's happening right here, yeah. And the world didn't fall apart. And here you have a unanimous panel of judges saying like, well, yep, they did ignore the order. But now they're going to disagree on the remedy like you're about to tell us. But anyway, I just feel like people don't know that judges feel like their orders are ignored. I don't want to say often, but it's not unusual. Well, what's not unusual is that parties will play very fast and loose with orders. Yeah. Yeah, they will. And so this was appealed.

And what's very interesting about this is there are two elements, I think, that are super interesting about this appeal. One element is that it really does a very good job. The opinion does a good job of breaking down the difference between religious belief-based discrimination and religious practice-based discrimination. Very different things. And then also we've got this really interesting contempt issue as well. And ADF wasn't a party or legal counsel in this lawsuit. They filed an amicus brief, but they were not representing the party, so they were an outside group.

Yeah, so you have a simple contempt finding, and essentially what the judge says is the lawyers for Southwest have to attend this training. And by the way, this is not unique either. So I had a case when I was, ironically enough, working for ADF where we challenged a ruling by a district court in Kentucky that ordered the ACL, they ordered a school district to go to ACLU training. And so when we were at ADF, we said, no, no, no, no, you can't order them to go to ACLU training. And then ironically enough, years later, a judge orders somebody to go to ADF training.

But what was interesting about this was the discussion to me about religious belief and religious practice. And so the jury found a religious belief-based discrimination. And the Fifth Circuit reverses that because for a very kind of sensible reason, they said, hey, look, there are a lot of pro-life and Christian employees at Southwest, tons. And Southwest doesn't discriminate against them. There is no adverse record of adverse action against these others. This person engaged in her religious practice

in a very particular way. And that particular way was pictures of a boarded fetus and the very aggressive. And so this was not aimed at her belief, but it was aimed at her practice. And the question was, and so what the Fifth Circuit says is, wait a minute, no, no, no, no, the jury was wrong. This is not, we're going to grant Southwest, we're going to overturn the verdict on the belief base.

But on the practice base, and you'll see, Sarah, how this dovetails with our LM T-shirt case, the question is, is it a substantial hardship for an employee? Because under the standard, religious accommodation is required unless there is a hardship, a substantial hardship to the employer. Now that has over time tended to mean like substantial hardship has not been that substantial at all. But the question was, is the hardship the

reaction of the employees to the expression? Can they talk about that as the actual kind of substantial hardship? And the long discussion in the case, which is really interesting, they basically said, well you can take that into account, but that's what the jury did anyway. But again, it was very interesting how much can you regulate a person and their expression based on the reaction that the expression gets. Now, this is not a First Amendment case. This is a religious practice case. But again, we got to the point where how much are you as another student, are you as an employee gonna be required to kind of absorb the anger, hurt, upset that you feel from another person's expression

as part of your status as a student or your status as an employee. And so that was fascinating. I think the court ultimately, you know, I think it got it right that this was not really religious belief-based, but it was very much, the employment action was very much targeted at her practice, how she described her practice.

So I do think Southwest was at an extreme disadvantage because you have the jury verdict here. Yeah, yeah. Well, in appellate courts, as we've said before, that's why we don't cover district court stuff very often because we don't do facts. Appellate courts don't do facts either, not really, not often. So once you have a jury finding facts,

appellate courts are like, that gets a lot of deference. Especially, you know, what they end up doing is examining the jury instruction. Jury instruction, or if no reasonable jury could look at that evidence, you know, some bias built into the jury or whatever. But for the most part, that's your fact finding. Right. David, with the small amount of time we have left, we were talking at dinner last night, and you raised this interesting way of thinking about the first and second founding of the United States.

And that part is not a David French-ism. A lot of people refer to the first founding. I did not come up with that. And the second founding being the Civil War. The Civil War and the Civil War amendments. But you saw it as like, to have a founding for a second or otherwise, it sort of requires a triumvirate or at least it has resulted in this triumvirate

of documents. Could you describe this? Because I found it really thought provoking and I want to chew on it some more. Yeah, so I teach a class at Lipscomb called Could you describe this? Because I found it really thought-provoking and I want to chew on it somewhere. Yeah. So I teach a class at Lipscomb called The Legal Philosophies of the American Foundings. And I said to the students, I made this argument to the students that you can really trace the two Foundings through, again, three key documents.

One's a statement of moral principle. The next one is a codification of the principle. And then the third one is a judicial affirmation. So it essentially takes the process and it's the judicial affirmation that wraps it in the bow, that sort of is the final step. And so it said, if you look at it this way in the original founding, the moral declaration

is the Declaration of Independence. Obviously wasn't the only moral declaration at that time, there are a lot flying around, but that's the key. The codification, but that has no legal force to declare there, you know, we have certain unalienable rights. I declare bankruptcy. Yes, I declare rights, right.

So that has no independent legal force. So to actually make that moral argument into a legal reality required of codification of law. That happens 11 years later with the 1787 Constitution plus the Bill of Rights. But even that is still notional. And the way I tried to explain it to my students was, think of the first founding

as establishing the Republican form of government. And the second founding is establishing the federal commitment to individual liberty. And the, and so the, in the final document is Marbury versus Madison, which really does cement that Republican form of government, where you have the separation of powers, where you have each one in their own lane. So one, two, three, Declaration, Constitution, Marbury. What about the second founding?

I made the argument that it is one, Gettysburg Address, although as you noted at dinner, second inaugural from Lincoln is very powerful here. But I loved Gettysburg Address because it so explicitly links the first founding to the war and then pivots to that new birth of freedom. Well, that's a moral declaration that's not codified. What codifies it?

Testing whether this nation or any nation so conceived can long endure. I mean, that's tying the two together. Exactly, exactly. Okay, a moral declaration, Gettysburg. I'd probably favor the second inaugural because it comes so close to the end of the war and it summarizes why the war was fought morally and in moral terms. But okay.

Yeah. And the Lincoln Memorial has both. So maybe the answer is for the second founding, you get both. You get the Gettysburg and the second inaugural. That's our declaration of moral rights. That's moral declaration, then codification, 13th, 14th, and 15th Amendments. But then why the Second Amendment is as neatly wrapped up in a bow? Second founding. I'm sorry, why the second founding is not as neatly wrapped up in that short bow,

like 1776, 1787, 1803, that's a relatively short period of time, is that the re-emergence of Southern, of Jim Crow, of segregation really ended up pushing that judicial affirmation. I'm- Yeah, Plessy sure isn't gonna be your judicial affirmation. Plessy is not it, it's Brown.

So it goes Gettysburg Address, 13th, 14th and 15th Amendments, long pause, Brown. And then that's when you actually complete from a legal perspective, the second actually complete from a legal perspective the second founding from the legal perspective obviously we didn't actually make these legal principles real in American lives until the civil rights movement culminated but that's my argument moral legal judicial I mean moral declaration codification in laws,

judicial affirmation gives you your foundings. I want to chew on this some more. Okay. I like it, but, and maybe this isn't a but, maybe it's an and, because it's not like after Marbury, everyone's like, up, all right then, separation of powers. We're good, and moves on. You're going to struggle with separation of powers today.

Like it's not like it solves it. And with Brown, I guess, where I was like hesitating, but maybe it's more of an and is of course, nothing changes after Brown. Not for years and years, at least a decade, all deliberate speed turns into not doing anything. But maybe that's not the point, if you will. I think of it like this.

Think of America as a supertanker or like the biggest ship you can imagine with a pretty small rudder. Now the rudder is gonna be dispositive over time. It's going to direct the ship over time. But in the meantime, you're kind of stuck with the cultural and legal milieu that you're in. And so I feel like the first founding, this real establishment of the Republican form of government, we're still chewing on that a bit.

Although we have since 1803 in Marbury, we have a long record of successful existence of a Republican form of government. Not perfect existence of a Republican form, but successful. And then really since Brown, that is what made the 14th Amendment come alive. Now it's not the only thing, it's what really made equal protection as a principle come alive. There's also the slow incorporation of the Bill of Rights,

which works as kind of a slow moving judicial affirmation. By which you mean, instead of just binding the federal government from encroaching on your rights, incorporating means incorporating against the state so that state governments also, so when we say state action, it now means usually, except in the Bivens context, state and federal governments cannot,

and local for that matter, municipalities, et cetera, state action means a government, any government cannot infringe upon your rights, except, and this is always the pop quiz question, what right in the Bill of Rights has not been incorporated against the states? Do not say Third Amendment, listener. That at least has a circuit opinion going for it,

though no Supreme Court opinion. David, do you remember? I, you know, I just looked this up literally two to three weeks ago. Grand jury. That's it, yep. That's right, yep, yep, yep. All right, so next episode will be that May 15th

reaction to the oral argument of the birthright citizenship case. Then we'll have some of our fun conversations from Gettysburg here this week for an episode next week. And can I offer a conversation prompt for the, two conversation prompts for the comment section? Yeah. One, what do you think that tripartite arrangement? And number two, do we need a third founding? And what would it be?

And what would it be? Because this is something, because you know, you have, in many ways, we are So you have, in many ways, we are at or near a state of extremely perilous polarization, extremely perilous. Well, so I think it's really interesting because there's also these moments in American history where, for instance, between the first and second founding, it's about states are really running that rudder, you know, directing the national ship. After the second founding, power is then going to shift to the federal government. And there's a quasi third founding Wilson is probably the moral declaration of that to move from a federal government to an executive government to the administrative state. So you move state to federal, federal to executive branch in terms of where the

power and the directionality of the country resides. And each of those have been punctuated by a founding of sort, except that one. Yeah, you know, that's what makes me raise the question about a third founding. Has the creation of the administrative state and all of the developments from the presidency to Congress, as we've been talking about, broken Congress, have we reached a point where the Republican form of government that we created now no longer practically exists? And do you need a third founding to in essence recreate the Republican form of government?

And that was my question. I posed it to my students. I just wanted to get their minds turning. But this is, when you're reaching this kind of tension, my question is there structural reform that is necessary that rises to that level? I just love to hear what the listeners think. The conversation prompt. Okay, I like that conversation prompt.

Let's go to dinner. Yes, let's do it. Bye. Music.