Already deeply immersed in religious controversy, the Supreme Court soon will be asked to clarify the duty of members of the military services to obey orders, even if they believe that doing so would violate their religious faith. A new case based on the rights protected by the Religious Freedom Restoration Act (or RFRA) is on its way to the Justices in an appeal from a military court.
The case of United States v. Sterling involves a former Marine – discharged from the ranks after her conviction for disobeying one of her military superiors – who had posted signs around her desk, each with the same phrase taken from the Old Testament, the book of Isaiah. Each sign read: “No weapon formed against me shall prosper.”
Former Lance Corporal Monifa J. Sterling, formerly on duty at the Marine Corps base at Camp Lejeune in North Carolina, was convicted in February 2014 of a series of charges involving refusals to take down the signs, along with other claims of failing to follow orders. But, as the case moves toward the Supreme Court, it will focus solely on the religious dispute surrounding the charges.
The guilty verdict, along with a pay cut and a “bad conduct” discharge (both affecting her eligibility for benefits) were upheld in a 4-to-1 decision last week by the U.S. Court of Appeals for the Armed Forces. That is the highest appeals tribunal in the U.S. military, with appeals from its rulings going on to the Supreme Court – if the Justices accept them for review.
Her lawyers, including the high-profile Washington, D.C., attorney, Paul D. Clement, have said they plan to appeal. The case attracted a wide array of state governments and advocacy groups at the military appeals court, which was reviewing a decision from a Navy-Marine Corps tribunal.
When Sterling was tried in a military court-martial, she testified that she put up the signs to protect herself, arguing that other Marines were “picking on her.” At the trial, she began claiming that the signs were based on her faith as a non-denominational Christian, and thus her refusal to take them down when told to do so by a sergeant was protected by the 1993 federal law protecting the exercise of religious freedom: RFRA.
That law has had a prominent place in the Supreme Court’s work in recent years, most recently in the challenges by Roman Catholic hospitals, colleges and charities to the birth-control mandate of the Affordable Care Act, and in other challenges under that Act. Religious freedom cases based on that and similar state laws are developing around the nation in reaction to the Supreme Court’s same-sex marriage ruling.
The Justices are divided on such religious questions, and disputes often produce strongly worded dissents. Last term, the court was unable to make a final ruling on the latest birth-control cases and chose instead to try to get the parties to work out a compromise themselves.
The Sterling case, though, arises in the special situation of the military, where obedience to orders is a fundamental duty of maintaining discipline in the ranks. The fact that the case arose in that context appeared to be important to the majority’s ruling,
The majority, in a decision written by Judge Margaret A. Ryan, ruled that Sterling had failed to prove that the message on her signs was important to her religion and that taking them down violated her faith, and that, in any event, she had not taken steps to let her superiors know that she was, in fact, acting on the basis of faith principles. It also said she should have tried remedies that the military offers for religious claims by those on duty.
The majority concluded that the sergeant who told Sterling to take down the signs had acted within his authority as her superior and that he had given her a valid reason – that the desk where they were posted was used by other Marines, too. There was no evidence, the court found, that the sergeant knew at the time that the phrase on the signs was religious in nature.
Under RFRA, it is illegal for the government (including the military) to take action that imposes a “substantial burden” on the exercise of religion. The individual making a claim must show that the religious belief was held sincerely. If a burden is proven, then the government must show that it was pursuing a “compelling interest” and doing so by the means that would have the least negative impact on the individual’s religious beliefs.
In the appeals court’s ruling, it assumed that Sterling sincerely believed that the message on the three signs at her desk was inspired by her faith, and thus moved on to the question of whether her religion had been subjected to a “substantial burden.” On that point, Sterling’s claims failed, according to the majority.
A key factor on that point, Judge Ryan wrote, is the importance – or lack of it – that the individual assigns to the religious reason for acting – here, putting up the signs. Sterling, the opinion said, had to show that she had an honest belief that the sign-posting was important to her faith, and she did not meet that test.
“We reject the argument that every interference with a religiously motivated act constitutes a substantial burden on the exercise of religion,” the opinion said.
In judging the claim of a burden on Sterling’s faith, the majority said that it relied in part upon the fact that she had never told her sergeant that the signs had religious meaning for her. “That minimal burden,” it said, “is certainly not onerous or unreasonable in the military context, where orders are presumed to be lawful, adherence to orders is integral to the military performing its mission, and the military force is made up of diverse individuals with diverse backgrounds – with no guarantee those charged with command have any special expertise in religion.”
The majority said it could not approve a circumstance of “disobey orders now and explain why later.”
Another fact that the majority said helped shape its view that the burden on Sterling’s religion did not meet the RFRA test was that she could have, but did not, request a religious accommodation of the posting of the signs. The Marine Corps’ rules require that a marine obeys her or his orders while waiting for a ruling on such a requested, the opinion noted.
Three other appeals judges joined in the Ryan opinion, but Judge Kevin A. Ohlson dissented, arguing that the ruling requires members of the military to do something that RFRA does not require – “to ask the government, ‘Mother, may I?’ “
The ruling, the dissenting judge wrote, “imposes a legal regime that conflicts with the provisions of RFRA, contradicts the intent of Congress, and impermissibly chills the religious rights of our nation’s servicemembers.”
The Supreme Court is not likely to examine the coming appeal until sometime in the fall.
This post also appears on Constitution Daily, the blog of the National Constitution Center in Philadelphia.
