Legal Docket: The forbidden conviction

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NICK EICHER, HOST: It’s The World and Everything in It for July 27th, 2026 . We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

Congress considered a controversial civil-rights bill five years ago titled The Equality Act. It was a measure that would likely affect relations between businesses and the public, and Alaska Airlines invited employees to comment on it.

Two Christian flight attendants offered theirs. And the airline fired them both.

EICHER: Now, five years later, a federal appeals court says a jury may decide whether Alaska acted improperly, using its own rules as a cover for religious discrimination. Or whether they were merely enforcing neutral workplace rules. Marli Brown is one of the fired flight attendants.

REICHARD: Lacey Smith is the other.

SMITH: And so my question was, “As a company, do you think it's possible to regulate morality?” And that's the question that got me terminated.

The appeals court has not decided that Alaska discriminated. It just decided the evidence is disputed enough that a jury should hear the case.

EICHER: To understand how the dispute began, it’s helpful to remember how unsettled was the summer of 2020.

The country was living through COVID lockdowns, nationwide unrest after the death of George Floyd, and a bitter presidential campaign. Employers were rapidly adopting diversity, equity, and inclusion programs. And many workers were finding out that disagreement over sexuality and gender could carry professional consequences.

In the middle of all that, the Supreme Court ruled in a case called Bostock v. Clayton County.

REICHARD: By a vote of six to three, the Court held that Title VII’s prohibition on workplace sex discrimination also covers sexual orientation and gender identity.

Title VII already protects employees from religious discrimination.

So Bostock placed those protections alongside one another in federal employment law—without resolving every conflict that might arise between them.

EICHER: The following year was when Congress took up the Equality Act.

The bill would have expanded federal civil-rights protections involving sexual orientation and gender identity across employment, public accommodations, and other areas.

As a company, Alaska Airlines took a position in favor, but also solicited employee comment.

REICHARD: To a point. Alaska held that only what it considered “civil and respectful” comments would be tolerated, and ruled out of bounds what it regarded as harassment and discrimination.

Smith had worked as an Alaska flight attendant for six years. She posted the question we heard a moment ago:

SMITH: Do you think it’s possible to regulate morality?

I asked Smith what was behind the question.

SMITH: God tells us that He created us male and female. And He created us and told us to…populate the earth… So giving us guidelines in terms of law and what he's expecting from us. So as a Christian, that's one of the things where if you believe in the inerrancy of the Bible, which I do, and if you believe that…God's commands are true and that the Bible is relevant, which I do, then those are things that you have to adhere to….Laws first give us a mirror, they tell us kind of what's wrong or right. And then secondly…they try and punish evil and reward good. And the third thing they do for us is allow us to know what God thinks is good and to strive for living that life ….And so I take legislation… a little bit more seriously on my faith in terms of what we're allowing into our legislation….because whether we like it or not, legislation often regulates morality…..And so for me, if Alaska's in support of something that's going against my own biblical belief and faith and the inerrancy of God's word, that's when I have a concern about it.

The other flight attendant, Marli Brown, posted later that day. Her comment was much longer—and expressly religious.

She said the Equality Act threatened the church, religious freedom, and conscience protections. She also argued that its provisions could diminish the privacy and safety of women and girls. And she warned—and here’s the key—that sexual predators could exploit rules allowing access to private spaces designated for the opposite sex.

EICHER: Alaska said Brown in saying that had equated LGBTQ people with sexual predators, defining her post hateful and discriminatory.

At that point, Alaska removed both women’s comments and opened disciplinary investigations against them.

REICHARD: Smith and Brown are both Christians. Both were also members of the Association of Flight Attendants—the labor union that was supposed to represent them.

Alaska ultimately fired both women the same day. Smith says she was stunned.

SMITH: I don't think anybody expects to get fired for writing a comment which was encouraged on a post that Alaska themselves brought to their employees. So I think the termination definitely felt incredibly extreme.

EICHER: Title VII of the Civil Rights Act prohibits employers from discriminating against employees based on religion. It also applies to labor unions.

But religious belief does not give an employee immunity from neutral workplace rules. An employer may discipline employees for genuine harassment or discrimination—even when religiously motivated.

REICHARD: The question here is whether Alaska applied its policies neutrally—or used them to punish beliefs the company opposed.

I contacted Alaska Airlines and the union for comment, but didn’t hear back in time for this story. I’ll update you if I receive a response.

EICHER: Before bringing a federal employment-discrimination lawsuit, workers ordinarily must first pursue an administrative claim. Smith and Brown did that. Then they sued both the airline and their union.

Stephanie Taub is Senior Counsel at First Liberty Institute, which represents the women:

TAUB: Normally you have to go through…the EEOC or another state agency first. And so it takes some time to go through the state agency before you can bring a lawsuit. And then you file a lawsuit in the district court and you go through the process of gathering evidence. So that takes more time too. And then what happened here is the district court filed an opinion saying that we weren't able to go to trial because the district court thought that we didn't have enough evidence of religious discrimination.

But we do have good news because the Ninth Circuit just recently … overturned that decision and … laid out all of the evidence that we presented, which we believe is overwhelming evidence of religious discrimination, and they agreed with us. We had enough evidence of religious discrimination to go to trial against the airline and against the union.

REICHARD: More precisely, the appeals court held there was enough evidence for the claims to continue, not necessarily that discrimination occurred. The ruling was that the evidence in dispute should not have been resolved by a judge without a trial. And much of the evidence came from internal airline and union communications obtained in the discovery process.

EICHER: As Alaska prepared its public response to Smith’s morality question, a lawyer in the airline’s legal department wrote this: “Employees actually do not have the right to believe that LGBTQ rights are ‘immoral.’” He placed quotation marks around the word “immoral.”

Alaska’s vice president of in-flight operations replied, “I 100% agree.”

The appeals court said a jury could consider that exchange as possible evidence of religious hostility.

REICHARD: Taub also points to the language Alaska used when discussing the word “inclusion:”

TAUB: They repeated that phrase over and over and over again. There's only a few categories that are protected in federal law, and they omitted one. They omitted religion. And so this is absolutely telling.

The union’s internal messages were even more blunt.

One union official called Smith’s comment “reprehensible” and wrote that employees could be bigots in their private lives—but not at work.

EICHER: The union president repeatedly contacted Alaska management about the women’s comments. In one message, he complained that too many people struggled to reconcile their faith with inclusion. And one of Brown’s own union representatives sent a message to other union officials, as Taub describes.

TAUB: Marli's union representative, she texted to other union representatives, can someone please shut down comments or put Marli and Lacey in a burlap bag and drop them down a well. So if that's not evidence of anti- religious hostility, I don't know what is.

REICHARD: That union official later represented Brown during Alaska’s investigation. The union filed grievances after the firings. But it declined to take either woman’s case to arbitration. Smith says she felt abandoned by the people who were supposed to be representing her.

SMITH: I had a union person who basically said that they didn't think that I was going to get represented in arbitration early on. What's interesting about that is she's been doing it long enough that she just knows. Yet when it came to my defense and any of the grievance process, she never said one word. So somebody who's incredibly skilled at defending and knowing just what's happening had not one word to say on my behalf to Alaska Airlines.

EICHER: The federal district court ruled for Alaska and the union without a trial.

But last month, a three-judge panel of the Ninth Circuit, voting 2-1, reversed.

The majority treated the two women’s claims somewhat differently.

Holding: Brown’s comment was explicitly religious, and Alaska and the union plainly understood that.

And the panel noted: Brown had also worked at the airline for eight years with no prior discipline.

REICHARD: Smith’s case is more complicated. Her brief question on regulating morality did not mention religion. And when Alaska interviewed her, Smith described her question as philosophical. She did not expressly claim religious discrimination until after the company fired her.

Unlike Brown, Smith did have a previous disciplinary record arising from a workplace dispute over Alaska’s support for the Black Lives Matter movement.

EICHER: Even so, the majority said Alaska did not evaluate Smith’s case in a vacuum. Company and union officials discussed the two women together. Brown’s investigation included extensive discussion of religious objections and occurred before Smith’s. Yet both were fired the same day.

From that evidence, the majority said a jury could conclude that Alaska understood the religious context of Smith’s question and used its neutral policies as a cover.

REICHARD: The dissenting judge in the case said the company would’ve had to be “clairvoyant” to know Smith was making a religious claim. She concluded an employer cannot discriminate against an employee because of a religious meaning the employer was unaware of.

And that sort of disagreement might illustrate the difficulty Smith could face before a jury: Did Alaska fire the women for violating neutral rules? Or did company and union officials treat their Christian convictions as evidence of harassment?

EICHER: The five-year legal battle has already carried significant personal costs. Smith moved across the country and became a stay-at-home mother. Brown found work at another airline—but at the cost of a decade of seniority.

REICHARD: I asked Smith why she’s continued with the litigation:

SMITH: As a Christian, you know that you’re not expecting a golden road to walk down. You know they say rejoice whenever you face persecution of any kind. So, not that rejoicing comes easily, but I think that’s when you have a lot of spiritual growth that comes to it. And so, in this process, there’s a lot of rejoicing for the fact that I’m standing on solid ground. I’m standing up for my faith in God. And in this nation, to be able to worship God without fear, is a big deal.

By terminating people of faith, it makes you not able to stand up for your faith without fear. You fear losing your job, you fear providing for your family, you fear the repercussions that are going to happen. People speaking against you. I’ve lost friends over this process. If it did anything for me, it helped my roots grow deeper and for that? Yeah, I’m thankful.

The case is Brown v Alaska Airlines, Inc and is currently pending for trial in Washington State.

And that’s this week’s Legal Docket!

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