Highest military court considers limits of religious liberty in uniform

Religious Liberty
by Michael Cochrane
Posted 4/29/16, 08:25 am

The military’s highest court, the Court of Appeals for the Armed Forces (CAAF), heard oral arguments Wednesday in a case that could determine the future applicability of religious liberty protections for military service members.

Marine Lance Cpl. Monifa J. Sterling was convicted in a court martial for disobeying an order from her superior to take down three Bible passages she had posted around her workplace. The signs, printed in 28-point font on strips of paper, contained a personalization of Isaiah 54:17 and said, “No weapon formed against me shall prosper.” 

Sterling was found guilty and sentenced to a demotion in rank, to private, and a bad conduct discharge from the Marine Corps. The Navy-Marine Corps Court of Criminal Appeals reviewed the case and upheld the conviction, ruling the order was lawful because “other service members come to [the] accused’s workspace for assistance at which time they could have seen the signs.”

The CAAF—a panel of five civilian judges appointed for 15-year terms by the president with Senate approval—agreed in October to review the case on the basis of two key issues. First, was Sterling’s conduct in displaying the signs in her shared workplace an exercise of religion as defined under the federal Religious Freedom Restoration Act? And second, did her superior non-commissioned officer have a valid military purpose in ordering her to remove the signs?

Paul D. Clement, a former U.S. solicitor general who argued and won the Hobby Lobby case before the U.S. Supreme Court, argued on Sterling’s behalf. Brian Keller, an attorney with the Navy-Marine Corps Appellate Review Activity, argued for the government. Both lawyers had 20 minutes to present their arguments.

“I think the judges were certainly very interested in the religious liberty issue. They asked pretty pointed and difficult questions,” said Michael Berry, senior counsel and director of military affairs at First Liberty Institute, the religious liberty law firm representing Sterling. “But they asked difficult questions of both sides, and I think, clearly, the Constitution and the federal law and military regulations are in our favor. And so, we’re hopeful of a positive outcome.”

Berry noted that although the judges’ questions were designed to probe the boundaries of an argument and not necessarily signal whether they were in agreement or disagreement, at least one may have hinted at his thinking.

“One of the judges said something to the effect of in his opinion, this case boils down to a very simple, logical issue, which is whether or not it’s a burden on religious exercise to put somebody through a court martial for displaying a Bible verse,” Berry said.

Such a statement suggests at least one of the judges likely thinks Sterling’s action was an exercise of religion. But Keller argued Sterling failed to demonstrate her actions met that standard. In its written brief, the government claimed Sterling’s “attempt, post-trial, to link the quote to the Book of Isaiah is an attempt at improper appellate fact-finding and should be rejected.”

If the court determines Sterling’s actions constituted an exercise of religion, the government must demonstrate it had a compelling interest in ordering her to take the signs down and that it used the least restrictive means to further that interest. 

Berry hopes a favorable decision by the court would, at the very least, remove the federal conviction from Sterling’s record. The best possible outcome, in his view, also would include some other form of relief.

“If they remove the conviction and decide in light of that, maybe she shouldn’t have been punitively discharged,” Berry told me after the hearing. “Maybe we shouldn’t have reduced her in rank, and so we have to give her some back pay.”

Several national leaders filed briefs in support of Sterling, including 43 members of Congress, a coalition of religious leaders, and nine retired generals.

“Lance Cpl. Monifa Sterling’s appeal that was heard today may help determine the future First Amendment climate in the entire military,” said Lt. Gen. (Ret.) Jerry Boykin, Family Research Council executive vice president, in a statement. “Sterling was denied her religious liberties, and now the appellate process will determine whether that will be the new norm or whether those constitutional rights will be upheld.”

Michael Cochrane

Michael is a retired Defense Department engineer and former Army officer who is an adjunct professor of engineering management at Old Dominion University in Norfolk, Va. He is a graduate of the World Journalism Institute's mid-career course. Follow Michael on Twitter @MFCochrane.

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Comments

  • Hans's picture
    Hans
    Posted: Tue, 05/10/2016 02:56 pm

    In my understanding of this case, there are a number of complicating factors. The first is that she was court-martialed, not for putting up Bible verses, but for refusing to obey a direct order. Had she complied with the order to take down the verses and then filed a complaint with the EO office, this entire case might look very different. So we need to be cautious about defining the events carefully in order not to get the wrong impression. Moreover, she was court-martialed on multiple charges, and this spat over the Bible verses was easily the least serious of the charges. She was not a model Marine who is being persecuted; based on the charges brought against her, she had some serious issues, but has managed to co-opt conservatives to her cause by making this about religious freedom instead of multiple instances relating to disobedience of direct orders.Secondly, the issue of posting Bible verses is problematic because it is not actually a matter of religious conscience. In matters where the religious tradition dictates particular modes of expression (think Catholics keeping holy day of obligation, Mormons wearing sacred undergarments, or a Muslim woman wearing a hijab), the military has in place policies that automatically allow for these kinds of expressions except when command can provide compelling reasons to disallow them (think: wearing a hijab on the flight line, where no head gear is permitted for safety reasons). Here, though, we are not dealing with an issue of religious conscience, but of religious expression, which is a more ambiguous category. The military certain is within its legal rights to restrict religious expression to a reasonable degree as a matter of maintaining a professional work environment (a person would not be permitted, for example, to turn their workspace into a makeshift shrine). The question is where to draw the line, and of course many of us would agree that a few printouts of Bible verses are probably not severely compromising the work environment. The question is where that line in the sand goes, and that is what the court needs to help determine.However, at the very least, Christians and conservatives in general ought to be cautious about making martyrs out of people without understanding the full story. The extent to which the military can and should regulate religious expression is legitimate and quite complex. At the same time, the military's tolerance for blatant disobedience and neglect of duty is exceedingly minimal, as it should be. She may have had the book thrown at her, which may include overreach for these Bible verses, but the real issue is focused on respect for authority and obedience to orders, which the military never has taken lightly.

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