The Supreme Court recently considered whether to hear an appeal regarding the exclusion of two conservative Christians from a jury because of concerns about their impartiality. In a case involving a lesbian plaintiff, the district court presumed they were unfit to serve because of their traditional religious beliefs about sexual morality. Given a state-law procedural issue, Justice Samuel Alito “reluctantly” agreed with other Justices not to hear the case. However, he used the occasion to renew his earlier warning about the dangerous impact the Court’s Obergefell decision would have on “Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct.”
In the 2015 landmark decision Obergefell v. Hodges, the Supreme Court decided that same-sex couples have a constitutional right to marry. Writing for the majority, Justice Kennedy recognized the diversity of opinion on the issue, explaining that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.”
Despite this acknowledgement, Justice Alito in his dissent expressed grave concern that the Court’s opinion would be used to “marginalize” and “vilify Americans who are unwilling to assent to the new orthodoxy.” He dramatically warned that “soon … those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
A current lawsuit against Alaska Airlines and its flight attendants’ union, the Association of Flight Attendants (AFA), provides another example of how after less than 10 years Justice Kennedy’s words about “decent and honorable” religious beliefs have been forgotten and Justice Alito’s dire prophecy is being fulfilled.
When Alaska Airlines posted on an internal message board about its support for the so-called Equality Act, flight attendant Lacey Smith wondered if the Equality Act was the right means for achieving the company’s goals and what the implications of the legislation would be for religious employees. She checked the airline’s private, internal message board guidelines to ensure her question was compliant and, seeing that respectful questions were encouraged, asked, “As a company, do you think it’s possible to regulate morality?” The airline initially responded to her question but later deleted it. Then, she was questioned by airline authorities and subsequently fired.
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Another flight attendant, Marli Brown, had similar questions about the airline’s support for Equality Act, particularly given its impact on vulnerable groups such as religious people, women, and girls. She asked: “Does Alaska support: endangering the Church, encouraging suppression of religious freedom, obliterating women rights and parental rights?” She raised a concern—held by opponents of the Equality Act on both the Left and the Right—about the safety and privacy of women and girls, saying, “Giving people blanket permission to enter private spaces for the opposite sex enables sexual predators to exploit the rules and gain easy access to victims.” Alaska Airlines immediately deleted her comment, and she too was questioned and fired.
Both Marli and Lacey were exceptional employees with deeply held religious beliefs. In her eight years as a flight attendant, Marli received many guest compliments, no passenger complaints, and no discipline. Her supervisor described her as upbeat, friendly, respectful of others, a hard worker, providing great customer service, and always courteous and kind to her coworkers. Lacey, too, received many “kudos” and no passenger concerns during over six years working as a flight attendant. Passengers described her as friendly, caring, cheerful, attentive, warm, and engaging. Her union representative said she was “a really great flight attendant” with “lots of friends that really liked her.” When considering Marli and Lacey’s questions about the implications of the Equality Act, none of these accolades mattered to Alaska Airlines because it rejected the religious perspective behind their questions. The airline called their questions “hateful and discriminatory,” claimed that “Defining gender identity or sexual orientation as a moral issue ... is … a discriminatory statement,” and explained that their comments “did not align with the values of Alaska Airlines.” Later the airline expounded that merely using the phrase “opposite sex” was discriminatory.
When asked where employees like Lacey could express their moral beliefs on the issue of the Equality Act, her supervisor responded, “At home without any other employees being, you know, there to hear it. That would be okay.” The flight attendants’ union president similarly expressed, “[You c]an be a bigot at home but not at work.” These statements eerily echo Justice Alito’s warning that those who hold to traditional view of sexual morality would soon only be able to “whisper” about their beliefs “at home,” as stating such beliefs in public would lead to being labeled and treated as “bigots” by employers.
Alaska Airlines purports to be promoting “diversity, equity, and inclusion,” “open dialogue,” and “courageous conversations.” But, as appellate court Judge Jim Ho recently observed in another case, it’s hard to see how some “can justify their DEI efforts if their vision of diversity doesn’t include diverse viewpoints, if equity doesn’t encompass equality for people of faith, and if inclusion involved excluding politically unpopular beliefs.”
Obergefell decided that same-sex couples have a right to marry, but it did not remove the right of others to hold or state a differing opinion. Respectful questions expressing deeply held religious convictions are legally protected in the workplace. Sadly, while Alaska Airlines claims to promote a culture of “open” dialog among all employees, its actions show that dialog is “closed” when it is out of step with the airline’s current orthodoxy.
Becky Dummermuth is counsel for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. First Liberty represents Ms. Brown and Ms. Smith. Read more at FirstLiberty.org.
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