The Religious Freedom Restoration Act (RFRA), as modified by the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000bb – 2000bb-4, was the central theme in the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, (2014). Attorney Paul Clement represented the private parties who sought an exemption from the contraception coverage requirements of the Affordable Care Act. Mr. Clement is now part of an effort to apply RFRA to military orders, appearing pro hac vice on behalf of a Marine Corps appellant who is seeking CAAF review of her court-martial conviction for an orders violation.

The case is United States v. Sterling, No. 15-0510/MC. The NMCCA’s decision is available here. The supplement to the petition for grant of review by CAAF is available here.

84 Responses to “A military order vs. the Religious Freedom Restoration Act”

  1. Charlie Gittins says:

    Paul Clement on brief.  This LCPL has one big gun in her holster.

  2. stewie says:

    I’m not religious, but it wouldn’t even cross my mind to order someone to remove a few small religious signs from their work area.  It’s not like she was proselytizing.  I’m not sure I see the threat to good order and discipline the court sees so clearly it doesn’t even tell us what it is.

  3. The Silver Fox says:

    NMCCA was absolutely wrong here.  Really cool to see Mr. Clement on this case and I really hope CAAF grants.  

  4. Monday morning QB says:

    If CAAF grants, I would hate be the Code 46er detailed to go up against Mr. Clement.  It’ll be like Obi Wan and the storm troopers. “These are not the droids you’re looking for.”

  5. Bill Cassara says:

    I can’t imagine recommending that a Convening Authority to refer that specification to a court-martial.

  6. Ryan Coward says:

    Interesting to raise it in this situation.  Though it’s not the first time that RFRA has popped its head in the court-martial context.  We raised this as a central issue in many of the interlocutory appeals filed in Hasan.  CAAF instead avoided the issue by removing the MJ .  Unfortunately, Clement may be less successful here than in Hobby Lobby.  The substantial burden hurdle is always tough overcome.  Either way, case law on the issue at the appellate level will certainly help establish this as a defense for future defendants.

  7. Tami a/k/a Princess Leia says:

    I’m not understanding NMCCA in saying she doesn’t get the protection of the RFRA because posting Biblical quotes weren’t an exercise of religion, yet she exposed Marines to Biblical quotes that could have offended them. ????????
     
    I really need to find my picture of Saint Thomas More, the patron saint of lawyers, and hang it up in my office.  I would dare anyone to tell me to take that “shit” off my wall!

  8. rob klant says:

    TamakaPriL,
    I must agree with you, generally, though is the world so post-Christian that an invocation of the Trinity might not be recognized as an expression of religion, but simply as generally “offensive” because it is something a customer might find occult and strange.
    As to your devotion to St. T. More, imagine the reaction of a client whose only impression of him was formed by “Wolf Hall” vice  “A Man For All Seasons.”
    Military Justice, I think, is fitted to accommodate cultural changes of this sort.
     
     
     

  9. Phil Cave says:

    CAAF should grant.
    CAAF should affirm the conviction.
    This case is not about religious freedom.  It’s about the imposition of religion on others who may not care to be imposed upon–IN THE WORKPLACE where others also have a right to be.
      It is a case of workplace speech regulation.  Regulating such posters is no different than prohibiting someone to hang sexually and provocative pictures and words, or racially insensitive pictures or words.  Just as prohibiting these types of behavior serve a compelling government interest, so does prohibiting these religious postings IN THE WORKPLACE (other than the chapel).
    This regulation places zero burdens on the person’s right to believe what they think about religion.  Just don’t keep shoving it in my face.  As NMCCA correctly points out:
     

    It is not hard to imagine the divisive impact to good order and discipline that may result when a service member is compelled to work at a government desk festooned with religious quotations, especially if that service member does not share that religion. The risk that such exposure could impact the morale or discipline of the command is not slight. Maintaining discipline and morale in the military work center could very well require that the work center remain relatively free of divisive or contentious issues such as personal beliefs, religion, politics, etc., and a command may act preemptively to prevent this detrimental effect. To the extent that is what the military judge determined to be the case, we concur.
     

    Many years ago, a Code 45 alumnus–Dave Jonas–wrote an excellent Military Law Review article about how the Commandant’s imposition of religion was problematic.  The USAFA have had their problems about various religious groups or sects imposing their version of life. 
     
    Oh, and can we stop these OFFICIAL emails with all the bible quotes, please.  The only bible (King James) Quote I’m interested in is that at Acts 25:16.  In fact I’d encourage everyone to get in their uniforms and make a sign with the quote on it and parade at each of the JPP meetings, JSC meetings, NDAA public sessions, and at various other important locations.  To save you time, here it is.

     
    To whom I answered, It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him. 
     

    Or as “To whom I answered, that it is not the custom of the Romans to give up any man, before that the accused have the accusers face to face, and have had opportunity to make his defense concerning the matter laid against him.”

  10. Silence! says:

    Reading the NMCCA opinion and the CAAF Supp by this Appellant, it appears this case is about a Marine who felt her superiors were “harassing” her by ordering her to wear a certain uniform and perform certain duties which she felt her medical provider had exempted her from wearing or performing.  In response, she posted a bunch of “signs” around her work center roughly quoting a biblical passage – “no weapon formed against me shall prosper.”  Seems to me that her little notes did not really constitute religious expression – they instead constituted insubordination directed towards her superiors.  I think this case should be resolved like all other cases dealing with fundamental liberties in the military.  Military members have freedom of speech, so long as that speech is carried out in a way which is consistent with the government’s need to maintain good order and discipline in the armed forces.  Just the same, members have freedom of religious expression, so long as it is executed in a manner consistent with the need to maintain good order and discipline in the armed forces.  Once a military member’s speech or religious expression becomes insubordinate, I think the government has a compelling governmental interest in silencing them.

  11. rob klant says:

    Amen,et con spiritu tuo, Mr. Cave.
    if memory serves, these “tags” or “mottos” only became popular when certain civilian and military leaders began to include them sometime in the early ’20s.
    it’s about time, I think, to ban them by means of a lawful general punitive order.
    Otherwise, standby for a link to a fierce Regina Coeli, or other Marian antiphon of the season.

  12. Advocaat says:

    Oh, how the mighty Mr. Clement will fall in this battle, and his argument perish.

  13. Tami (a/k/a Princess Leia) says:

    Phil Cave,
     
    If there had been any evidence that someone was offended at the religious implications of her quotes, then I would agree her conviction should stand.  But I don’t see where posting small Biblical quotes around the workstation, when there was NO evidence that anyone was offended by them, is wrong.  Simply posting 1-2 religious mementos in my office is not “pushing” my faith on anyone.  I should be able to express my faith, at least in a minimal matter, in my personal workspace.  In fact, I did so for many years with my St. Thomas More picture, no one said anything about it, no one said it made them feel uncomfortable.  a couple of co-workers told me they liked my picture and should be one for their offices.  The only reason I don’t have it in my office now is because I can’t find it, I’ve moved so many times.
     
    Someone who gets offended by “de minimus” expressions of faith needs to get a thicker skin.  No more offensive than a colleague praying before eating a meal, or a gate guard telling everyone to “have a blessed day.”

  14. Peanut Gallery says:

    A religious expression argument is quite different than your typical free speech argument. Free speech has nowhere near the protection as does religious expression. I will give Mr. Clement the benefit of the doubt for knowing the difference. 
    As as a factual matter, wouldn’t it be interesting if the Bible verse issue pre-dated the other orders violations, thereby undercutting the notion that the appellant was simply using her religion as a cover?
    And legally speaking, if this is such an easy kill on military necessity grounds, then why didn’t the MJ and CCA simply apply RFRA and find that strict scrutiny is satisfied?  Why risk getting overturned by injecting what, from a purely optics standpoint, looks an awful lot like plain error?

  15. Silence! says:

    A religious expression argument is quite different than your typical free speech argument. Free speech has nowhere near the protection as does religious expression.

    That’s all well and good until some asshole decides to put up a little sign in their work center promoting “good biblical values” like:
    “Let the woman learn in silence with all subjection. But I suffer not a woman to teach, nor to usurp authority over the man, but to be in silence.”- 1 Timothy 2:11-12.
    We’ll also end up with guys posting up gems like this around their work centers:
    “The whoredom of a woman may be known in her haughty looks and eyelids.” – Ecclesiasticus 26:9. (Authorized NKJV; not cannon outside of the Catholic and Orthodox Churches).
    If CAAF lets this Marine post up her little chits about being immune to weapons or whatever nonsense she was spouting, then we’re not going to be able to stop the next military member that wants to post his favorite misogynistic Bible verse.  I can already hear the SAPR people gnashing their teeth and wailing about “rape culture” and “victim blaming” being sheltered by the First Amendment.  
    The only solution at that point would be for the government to pick which sorts of religious expression it feels are acceptable in the federal workplace.  That’s an outcome worse than banning religious expression outright.
     
     

  16. Jolly Roger says:

    It’s one thing to argue, as many of you have forcefully, that the Government has a compelling interest in preventing this sort of thing in the workplace, and that ordering its removal was narrowly tailored to that interest.  It is another thing entirely to do what the CCA did, which was to hold that the placement of biblical quotes by a Christian in a pattern designed to recall the Christian holy trinity is not even an “exercise of religion.”  That seems pretty obviously wrong.  The RFRA language defining what is an exercise of religion is about as expansive as it could be: any exercise of religion, whether or not compelled by a system of religious belief.  What courts are supposed to be doing is simply determining whether the belief flows from religion (as opposed to a secluar philosophical belief) and whether it’s sincerely held by the claimant.  Here’s a helpful primer:  http://volokh.com/2013/06/21/objectivism-not-a-religion-for-religious-freedom-restoration-act-purposes/.  So, Ayn Randian Objectivism is not protected because it’s not religious, but Christianity plainly is.  A servicemember who falsely claims an act done was done as religious exercise to avoid punishment is not protected because his belief is not “sincere.”  But a Christian quoting the Bible and symbolically invoking the trinity plainly is.  The MJ apparently had never heard of RFRA and the CCA got this analysis totally wrong by pretending the definition is far more restrictive than it was.  CAAF should grant and reverse and authorize a rehearing.  At the rehearing, the MJ can apply the strict scrutiny test and we see what we get.  Good chance it passes strict scrutiny (as Peanut Gallery indicates).  Great chance any of the floats on the parade of horribles Silence! has lined up would pass strict scrutiny, too, so no need for us all to go worrying about the terrible things that could happen (as Phil Cave does) if military courts start applying RFRA like they should.  But it’s completely wrong to say that a Christian organizing biblical quotes into a trinity is not “any exercise of religion, whether or not compelled by or central to a system of religious belief.”  Just shift the burden to the Government and go through the rest of the analysis.
     
    Also, I’d say RFRA is already a defense at court-martial in the Army.  US v. Webster,  65 MJ 936 (ACCA 2008).

  17. Silence! says:

    Jolly Roger said:

    CAAF should grant and reverse and authorize a rehearing.  At the rehearing, the MJ can apply the strict scrutiny test and we see what we get. 

    We have a well-developed record here.  Seems to me that this is a simple application of law to well-developed facts, which shouldn’t require a remand.  The fact that the MJ and the CCA misapplied the law simply means they get no deference.  It doesn’t require they get a second shot at it.  CAAF could grant, apply strict scrutiny itself, affirm the conviction, and move on.  Or, since the outcome would be the same and CAAF has already rendered a case prescribing the correct method of analysis for RFRA claims (as you pointed out, Webster, 65 MJ 936, applies strict scrutiny to a RFRA claim), CAAF might instead deny review.   The Supreme Court would deny cert in this case since, as you pointed out, it merely involves the misapplication of settled law.  Is there a reason for CAAF to behave any differently than the Supremes?  Especially when the result for the petitioner would be the same?  

  18. Phil Cave says:

    @Silence.  If CAAF denies the petition, then Appellant is foreclosed from access to the Supremes.  See all the discussion about that.
     
    @Tami.  To quote Captain Renault, “I’m shocked” that you should hang the picture of a Communist in your office.  Sir Thomas More was divisive in life, divided at death, and the interpretation of his writings (see Utopia), is divided.  Is it a Communist Manifesto or “a work of intellectual sarcasm.”  I note BBC has serialized Wolf Hall (not yet available on YTube for free yet).

  19. Phil Cave says:

    @Silence.  Also, I may have missed it, but I don’t see a specific request under CAAF Rule 21(b)(5)(G).  I know there is disagreement from two or three people about the validity or requirement of that Rule.  A summary grant and affirmance would allow for a petition for a writ of certiorari.

  20. Jolly Roger says:

    Silence!,
     
    That’s a fair point about whether CAAF would need to remand.  I think I part ways with you on whether this is a well-developed record on the issue of strict scrutiny.  It’s well-developed on whether there was a substantial burden on religious exercise, but the MJ never shifted the burden to the government so we have no record on compelling government interest or narrow tailoring.  CAAF could come up with a compelling interest on its own, but I think the narrowly tailored prong ought to have some evidence behind it.  Imagine the supervisor on the stand:  Why couldn’t you just make her take it down when she was helping someone?  Why couldn’t you just make her put it somewhere no one can really see but her?  Why can’t you just make her use small print that others can’t see?  Why can’t you move her desk?
     
    Webster is an Army case, and I only offered it up to show that one CCA has applied RFRA as a defense in a binding case for one service.  That doesn’t seem to be the issue in this case anyways, since the CCA acknowledges the defense, they just apply it all wrong.  I’m with Ryan Coward that CAAF ought to jump in to clarify things across the board.  It would help the next time someone puts Sir Thomas More up in the office (the horror!).

  21. Phil Cave says:

    @JR, it’s “the horror, the horror.”  Doubly worse.  :-)

  22. Phil Cave says:

    @JR

     Imagine the supervisor on the stand:  Why couldn’t you just make her take it down when she was helping someone?  Why couldn’t you just make her put it somewhere no one can really see but her?  Why can’t you just make her use small print that others can’t see?  Why can’t you move her desk?
     

    You mean an “accommodation,” for both sides on the issue.  Yes, I can see a way that such an approach would be fine.
     
    Have a Brian Blessed day.

  23. stewie says:

    I don’t see how the posting of a three small, religious phrases/notes in the workplace equals imposing religion upon others per se.  I certainly think it strains the colloquial definition of the word “festooned” which implies stuff everywhere, prominent and unavoidable.  I don’t think “could be read” equals that, nor does three.
     
    I can see how certain phrases could be problematic (posting a certain quote from Leviticus for example would/could very well harm good order and discipline), but a simple affirmation like in this case? No. I think it’s silly to charge this and take it trial, at best. At worst, I think this absolutely is a freedom of religious expression case.  I would think the same if someone wanted to put a picture of the Flying Spaghetti Monster someplace in their office.
     
    I’d have at least liked to see some evidence that folks were actually offended, upset or complaining about the phrases or at least some discussion by the court of what evidence there was at trial to at least show what the damage to good order and discipline might be to make the order lawful other than simply asserting it is obvious and moving on.
     
     

  24. ResIpsaLoquitur says:

    Goldman v. Weinberger (1984) is the benchmark on how military-religious cases are handled.  Granted, that was a 1st Amendment case and not a RFRA one since RFRA wouldn’t pass for another decade.  However, Congress considered Goldman in the legislative history of RFRA and assumed that the courts would continue to defer to the military’s operational needs in determining when it could overcome someone’s religious needs. I wouldn’t expect RFRA to be a viable defense in 99 percent of cases.
     
    Having said that–and without having read the case, because I’m on my phone–the decision to court-martial seems way overboard.  I hope that CA didn’t have Mikey Weinstein acting as his unofficial SJA, because that dude just needs to shut up most days.

  25. Tami a/k/a Princess Leia says:

    Phil,
     
    My picture of St. Thomas More has nothing to do with Communism.  It has everything to do with him being the patron saint of lawyers.  As a Christian, I took comfort in having the protection of our patron saint, whether I felt it helped me advocate better, protection during deployment (which I also have a necklace), or as a defense attorney, helped protect my clients from persecutors.

  26. Tami a/k/a Princess Leia says:

    As far as Webster goes, his defense based on the RFRA was unsuccessful because his chain of command was willing to accommodate his belief that killing a fellow Muslim was wrong.  They offered him a desk job during his deployment, but he refused, and he refused to show up for the movement.
     
    As far as Sterling goes, was this an Article 15 turn down?

  27. Due_Process says:

    Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.  Matthew 22:21 (KJV)
     
    But the First Amendment does not require the military to accommodate such practices in the face of its view that they would detract from the uniformity sought by the dress regulations. The Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and we hold that those portions of the regulations challenged here reasonably and evenhandedly regulate dress in the interest of the military’s perceived need for uniformity. The First Amendment therefore does not prohibit them from being applied to petitioner even though their effect is to restrict the wearing of the headgear required by his religious beliefs. [Emphasis added]
     

    Goldman v. Weinberger, 475 U.S. 503, 509-10 (1986).
     
    @ Phil: One more:
     

    One witness shall not rise up against a man for any iniquity or sin . . . at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established. Deuteronomy 19:15 (KJV)
     

     
     

  28. Dew_Process says:

    Dang spell-check!
     
    But the WaPo has picked up on this case as well: HERE.

  29. Phil Cave says:

    Tami, I was certain that would be your answer when I posted.  :-)  Seen many such pictures in legal offices.  Displaying that picture doesn’t trouble me one bit.  In the following colloquy, you may substitute the name of any particular modern day politician you feel applies.
     

    William Roper: So, now you give the Devil the benefit of law! 
     
    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil? 
     
    William Roper: Yes, I’d cut down every law in England to do that! 
     
    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

     
    @DP, thanks, an early corroboration rule.  Thanks, brother, but I’m afraid evidence law is well past that.  And as we know, these days a mere allegation is sufficient.
     
    Also, (regarding the parade of horribles) did you notice the link to the last AF outrage and the reenlistment issue.  

  30. The Silver Fox says:

    “If there had been any evidence that someone was offended at the religious implications of her quotes, then I would agree her conviction should stand.”
    “It’s about the imposition of religion on others who may not care to be imposed upon–IN THE WORKPLACE where others also have a right to be.”

    I forgot about the old “if you offend someone” exception to religious liberty.  

  31. ResIpsaLoquitur says:

    Had a chance to give a cursory look to the Sterling decision.  I think the court got it right, though I say that with some degree of discomfort since I’m a religiously-minded attorney myself.  From my read of the facts, it seems that the member displayed her little signs, the supervisor told her not to and took them down, and then she displayed them anyway.  If there’s some nuance to the facts which I’m not getting, please do correct me.
    The thing everyone needs to understand up front with religious liberty in the military is that the religious member is subjected to tremendously competing obligations–their (perceived) duty towards God and their duty towards the President, Congress, leadership, etc.  I know that some people want to tremendously simplify the issue (“If they can’t decide between God and the UCMJ, they should get out of the military!”), but realistically, it’s not that simple–particularly for believers who are already in the military and can’t simply walk out the door if they’re still under a service obligation or haven’t separated yet.  Seriously, use your brain for a minute: God says A, your boss says B.  Who are you supposed to follow in that situation?  A non-believer is going to say B every time, but consider the extreme psychological pressure the believer is under.  (I’d almost say that regularly ordering religiously-minded members to go against their doctrine might be contrary to GOAD, but nevermind that…the military only seems to rely on the GOAD argument when it benefits the institution.)
    The competition between the military and religious-rights advocates is over what takes priority: following orders or following God.  The military’s attitude is basically: follow orders, and if you need an accommodation, we’ll issue you one.  For people like Sterling, the attitude is: my religious needs come first; the military needs to accommodate me.  The parties on this issue are starting from completely opposing points here.
    FWIW, my legal read on RFRA is that Congress didn’t pass it with the intention of overriding the military’s command and control needs.  Your starting position (which is reflected in the DOD Instruction 1300.17 on religious accommodation) is that military orders are valid and must be followed by default.  If a member has a religious issue with a valid order, they need to request accommodation and the military gets a bite at determining whether an accommodation is possible.  Until then, the member complies.  This is necessary in order to maintain a properly functioning military.  I don’t like to play “parade of horribles,” but to do it the other way would in theory allow soldiers to just walk off the battlefield if they had a religious issue in the middle of battle.  I tend to think that a reasonable court would find that DOD’s religious accommodation process of requiring a member to request accommodation *first* and comply in the meantime is necessary for the military to function.  From what I read of the facts, it seems that Sterling didn’t do that.
    As a cautionary note, however, I would disagree with Mr. Cave’s analysis that religious expression of this kind is somehow threatening and harassing, and therefore contrary to GOAD.  Two things.  One, I’d tend to agree that outright proselytizing in the workplace is harassment–particularly given that in the workplace, you’re supposed to be doing work.  If you have time during the day to interrupt your co-workers to preach the good news, you’re probably not being very productive.  Simply having a quote out which makes a statement as to your identity is not.  (If you’re threatened by a Bible quote, then why not by the rabbi when he wears his yarmulke, which is also an outward statement of faith?  Or by the Sikh, who’s now allowed to wear a turban in uniform?  Both are direct statements of faith, and I think the Jew and Sikh would tell you that’s the purpose of their headgear.  It’s just not with words.)
    Second, that GOAD threat cuts both ways.  The non-Christian might feel threatened by the Bible quote, but the Christian is going to feel threatened if simple faith expressions are suddenly restricted.  It’s going to come off as discriminatory (whether it *is* discriminatory is a different question) if people can have happy trinkets on their desk for their own morale–family photos, inspirational-but-non-theistic quotes) on their desks–but the Christian can’t, all because somebody might be vaguely uncomfortable with it.  (Would a quote from Buddha be OK?  Or the Dali Lama?  If they are, why not from Jesus?) 
    Look, the problem with command is that the military has to maintain *everyone’s* GOAD, not just the Christians, and not just the non-Christians.  Everybody.  We’re in a ridiculously oversenstive era right now where everyone is threatened by everyone else.  Mikey Weinstein is convinced that the military is a Christian theocracy.  Christians are convinced that every act of suppression is the beginning of the rise of the Antichrist.  This crap needs to stop from both sides.
    So: Sterling, guilty.  Supervisor who took away her signs was in the legal right, but also really didn’t need to go this far either.  Both sides are making things worse for each other in the long run.

  32. Tami a/k/a Princess Leia says:

    Phil Cave,
     
    Thank you for your comment!  I thought you were being serious!
     
    RIL,
     
    Ironically, if Sterling had filed an EO complaint against the supervisor for religious discrimination, it probably would have been substantiated.  That supervisor could not cut it in a deployed environment, working with Afghans.
     
    It would be hilarious if a CAAF judge asked the Government, “what would Jesus do?”  I’ll tell you what he would have done–“Jesus wept.”
     
    During my second tour in GAD, we were getting ready for the “holiday” party, we could decorate our offices if we wanted to.  My Jewish colleague posted a sign on his door–“If it wasn’t for my people, you people wouldn’t have a Christmas.”  It was hilarious, because it’s true.  No one got offended.
     
    I read the article, and saw her picture.  Would have been more compelling if she hadn’t worn dark blue nail polish.
     
    Can anyone tell me if those preparing to argue read our comments and use them in oral arguments?

  33. Jolly Roger says:

    Agree that Goldman means there’s going to be a lot of deference but a few points:
     
    1. Congress basically legislatively overruled Goldman’s result right away. 10 USC 774.
     
    2.  The Supremes in 1990 then did away with strict scrutiny. Employment Div. v. Smith.
     
    3. Congress in 1993 brought it back “in all cases.” The Supremes have recognized that this expands the protection beyond what it ever was before, since the Court didn’t used to apply strict scrutiny in all cases. City of Boerne v. Flores.
     
    Goldman probably still stands for the proposition that military authorities get deference, but that’s not going to be the end of the story. Prison administrators get a great deal of deference, but they still have to sufficiently justify their actions. See Holt v. Hobbs.

  34. Anonymous Deployed Air Force SJA with initials NM says:

    Princess Leia – I did 2 yrs at appellate defense 2009-2011.  I read every CAAFLog comment on my cases prior to going into oral arguments.  I was 0 for 3. 

  35. Anonymous Deployed Air Force SJA with initials NM says:

    I should say 0 for 3 at CAAF.  I did actually win one or two at AFCCA, but most of those cases did not generate any CAAFLog discussion.

  36. Adam Frey says:

    Sure, 10 USC 774 overruled Goldman, but even that law gives wiggle room to the military to override religious garb if there’s some operational necessity.  I think our dress and appearance regs still reflect that.
     
    Funny enough, Goldman came about because the good rabbi dared to testify in a court-martial while wearing his cap, and the trial counsel complained about it.  Until that point, nobody had a problem with him.

  37. Phil Cave says:

    @Tami.
     
    1.  Yes, I read the postings here when thinking about trial motions, appellate briefs, and appellate argument.  I’m particularly interested in something that might be said against my arguments.  Reading the appellate briefs on similar issues, as well as listening to the relevant oral argument from prior cases helps also.
     
    2.  Marine Corps uniform regulations seem to prohibit:  “Marine Corps uniform standards of grooming do not allow eccentric or faddish styles of hair, facial hair, make-up/nail polish, jewelry, or eyeglasses.”  
    a. Nail Polish in service and dress uniforms. When worn, nail polish must be in shades of red (within the red spectrum, to include pinks and burgundies) and must complement the skin tone. 
    b. Nail polish in utilities. Colored nail polish is not authorized for wear with the utility uniform (except as mentioned in paragraph 1004.7.b(1)(c)i.c). MARADMIN 504/07
    There also seems to be a limit on the length of nails, “Fingernails shall not extend past the fingertips.”
     
    Of course ,I’ll defer to my Marine Corps friends to correct this as necessary.

  38. ResIpsaLoquitur says:

    Taking another look at the facts, I can’t help but wonder whether this particular marine has an attitude problem and has simply wrapped herself in the cross to make a public relations defense.  There’s a lot to this case besides the Bible quotes–failure to go, refusal to comply with orders, wearing the wrong uniform–and the RFRA issue is just one element of a broader pattern of misconduct.  That didn’t quite trigger in my mind until I saw the above reference to nail polish, and I checked the photo for myself.  This person gives me the impression of somebody who’s bucking the military’s expectation of conformity.
     
    I’m aware of a few other military cases out there in which RFRA has been raised as a defense to otherwise valid military orders.  These are federal civil lawsuits, not courts-martial, so I wouldn’t expect CAAFLog to be tracking them.  Anyway, they follow similiar patterns of a member who has difficulty with their leadership, gets in trouble over an issue where religion was incidentally raised, and suddenly it’s a federal RFRA case.  They make me wish I’d been trumpeting my Christianity a lot louder throughout my military career, so if and when I ever get in trouble, I can pull out the RFRA card and run to FOX News so I can claim that I’m a poor Christian who’s being oppressed by the military’s Emperor Nero.
     
    I think RFRA serves a valuable purpose, and the military needs to respect the needs of its members who have competing conscience issues.  I’d hate to see a military doctor be prosecuted because he couldn’t perform an abortion on religious grounds, or a Sikh be forced to remove his headgear, or chaplain being forced to break the seal of confessional (yeah, I know the MRE gives hefty protections to chaplain statements, but even that’s not absolute).  Point is, if Sterling is just somebody who bucks authority and is pulling RFRA as a defense of general noncompliance, then she’s kind of ruining RFRA for the rest of us.

  39. DCGoneGalt says:

    First impression was that this was a battle between two numerous and powerful interest groups in the military:  a disgruntled, derelict  pain in the a$$ trying to annoy supervisors/co-workers v. a disgruntled busybody always on the search for something to be offended by.
     
    I am not sure why the “religious” issue made it in a charge sheet, especially with other misconduct.  This case still has a whiff of one/both groups listed above so the only thing I know for sure is that both sides will end up unhappy and complaining about the injustice that has been done to them.  

  40. RKincaid3 (RK3PO) says:

    Amen, DCGGPhil and all those who recognize this mess for what it is.  The various state RFRAs and the federal RFRA are unconstitutional deprivations of government’s constitutional authority to legislate neutrally and evenly, generally, across a very diverse population.  They are also an unconstitutional violation of the separation of powers in that the legislature is directing the courts–an invasion of their exclusive constitutional domain under Art 3–on how and when the courts will use court-crafted rules (strict scrutiny vice intermediate vice rational basis).  Finally, those statutes have had the practical legal effect of essentially allowing each citizen to become a law unto himself/herself free of government regulation of even the most mundane aspects of life–that is where they violate the legislature’s ability to legislate evenly and neutrally.
     
    The only way to fix this mess is for the SCOTUS to abandon Hobby Lobby, strike down the federal RFRA as applied to the federal government (as they did in striking it down as applied to the states) and then strike down the state RFRAs and re-establish the primacy of the “neutrally but generally applicable” standard embodied in Emp Div of Oregon v. Smith (a Scalia opinion–back before he became an apologist for the religious right, ala his opinion in Hobby Lobby).  Why do I say that only the SCOTUS can fix this?  Because so far, the legislature–pandering to religious zealots as it has (and did in passing the federal RFRA right after Emp Div of Smith v. Oregon in the early 1990s)–has failed to lead and instead has only exacerbated the problem.  Only an entity that is independent of the popularity contests (sans principle and substance) of elections can fix this as a matter of government’s literal ability to govern neutrally across a diverse society.
     
    Quite frankly, organized religion (especially the Abrahamic faiths, which conveniently ignore their own religious intolerance when it comes to using the law to deny legal protection to non-Abrahamic faiths while pushing for their own inviolable legally protected religious freedoms), attempting as it is to assert some semblance of primacy over secular government, is trying to make America more non-secular–they want, arguably, to one degree or another, to return to that bad old days of a united government/ecclesiastical power–if not literally, then at least by virtue of neutering the government’s legal power to govern due to religious exceptions of the population—that is how individuals become laws unto themselves.  And such an extreme interpretation of the 1st Amendment’s religion clauses have NEVER been so lopsided or expansive.
     
    Last year I published an online piece about this issue, but to those who are crazy enough to check it out, I apologize in advance for the poor online formatting–it is due to both my inexperience with website management and to Yahoo Commerce’s miserable software.

  41. RKincaid3 (RK3PO) says:

    BTW, Phil.  Great reference to “A Man For All Seasons!”  Most excellent! Great thoughts there—and they are dangerous to those whose piety lays in the sincerity of their own religious beliefs!

  42. AFDCAO says:

    We can always trust in RKincaid3 for our daily (over)dose of hyperbole.

  43. stewie says:

    Actually RK3, the Federal RFRA was drafted primarily to deal with religious discrimination against Native Americans (because of the expansion of federal projects onto sacred Native American lands). All the RFRA really does is reinstate the Sherbert Test, and all that does is apply the strict scrutiny test.  And, it only applies to the Feds.
     
    And your separation of powers argument? Yeah, I don’t see that at all. The courts SHOULD be limited by Congress except, and only where, Congress violates the Constitution.  Applying strict scrutiny versus some other standard is not a constitutional violation when the standard used gives MORE rights to citizens and limits the government.  It would be in the reverse.
     
    Hobby Lobby one could argue is different, and it applies the RFRA incorrectly (along with the insane idea that corporations have religious rights).  Thus, I would argue you are confusing the RFRA itself with how it’s been recently used and interpreted. Although you seem to have a rather…strict (pun intended) view of organized religion which appears to be flavoring your position.

  44. RKincaid3 (RK3PO) says:

    Stewie:  Respectfully, nope.  I am not.  No confusion here at all.  I understand Smith and the American Indian issues too well.  And reinstating the Sherbert test is NOT all that the RFRA does.  RFRA does much, much MORE.  And, for the sake of argument, if all it did was re-establish the Sherbert test, it would still be wrong for the same reasons.   Government must be able to govern and people cannot simply decide that something they “sincerely hold” as a religious belief can remove them from the applicability of general, but religiously neutral laws. That is how government is rendered obsolete and men become laws beholden to none save their conscience—and we know from history where that leads us.  Also, the separation of powers argument is not mine–it comes from several amicus briefs and is supported by numerous–nay–significant precedent.
     
    Finally, you will note that Scalia’s Smith decision comfortably meshed with his Catholic (read: Abrahamic faith tradition) beliefs because it did not infringe upon an Abrahamic faith tradition.  But as you saw with his stance in Hobby Lobby, when such neutral laws are applied to his faith–he is all for creating an exception for Abrahamic faiths while ignoring in his (legally, constitutionally, principled and correct) Smith decision and the violence it did to one of them thar primitive, heathen, non-Abrahamic faiths.  That is the typical hypocrisy of American organized religion at work.  
     
    Scalia’s rule in Smith was fine until it applied to his faith in Hobby Lobby.  Why else would the majority ignore their own precedent and refuse to overturn the RFRA as applied to the fed when they had already done so as applied to the states (leaving aside the argument that perhaps Hobby Lobby wasn’t the best vehicle for such a hearty blow).  To be sure, I think it unlikely that Hobby Lobby was an improper vehicle; I rather think that it is more likely that in this day and age, few people in government–even in an un-elected judiciary–have the strength and courage of principle in the face of prominent, powerful, entrenched and well organized religious dogma in the halls of power—and especially when they are consistent with one’s own personal belief system–necessary to strike an even-handed blow against religious faith generally and in favor of general government neutrality towards religion–neither favoring nor hostile to religion in either form or function nor weakening of the government’s legislative authority (and obligation to act) generally across and on behalf of an increasingly diverse population, a growing number of which eschew such beliefs at all.

  45. RKincaid3 (RK3PO) says:

    @ AFDCAO:  Daily?  Come now.  Who is engaging in hyperbole?  :)

  46. factsontheground says:

    DCGonegalt. You impressions are spot on, but for possibly the disgruntled busybody. The defendant made it to court martial on the force of her personality alone. Her recruiter needs to face administrative action for so abjectly failing to screen.

    First impression was that this was a battle between two numerous and powerful interest groups in the military:  a disgruntled, derelict  pain in the a$$ trying to annoy supervisors/co-workers v. a disgruntled busybody always on the search for something to be offended by. I am not sure why the “religious” issue made it in a charge sheet, especially with other misconduct.  This case still has a whiff of one/both groups listed above so the only thing I know for sure is that both sides will end up unhappy and complaining about the injustice that has been done to them.  

  47. stewie says:

    The strict scrutiny test simply requires the government to have a purpose for infringing upon 1st Amendment rights.  The Constitution has the 1st Amendment.  Whether you like it or I like it, it placed religious rights on a bit of pedestal (as well as speech rights, etc) vis-a-vis government action.
     
    If a law is truly religious neutral, and it has a purpose, it’s got a decent shot at beating strict scrutiny. 
     
    The hypocrisy you speak of is Scalia hypocrisy. No need to expand it to all religions everywhere.
    The problem lies there.
     

  48. Alfonso Decimo says:

    @PC: I concur with your analysis.  A quick review of federal EEO precedent convinces me even civilian federal employees could be restricted from the subject religious display.  The key consideration is the privacy of the workspace.  In the present case, the religious expression was clearly directed outwardly toward the unwilling audience of her customers and coworkers.  She may argue her religious beliefs require her to preach and testify, but as long as agency policy is consistently applied, that argument cannot legally prevail.  I also share your concern with quotes at the bottom of emails and I would add that many non-religious quotes are also inappropriate and unprofessional, IMO.  My tip to SJAs is to encourage commanders to use chaplains for any ceremonies, b/c the volunteers from the command who want to fill that role don’t have the same familiarity with the applicable regulations. 

  49. TV says:

    Regardless of the legality of the specification, it seem that the G made a simple case more complicated by incorporating an offense that has Constitutional implications when they probably could have achieved the same result by only charging the accused’s bevy of insubordinate acts that did not involve religion.   Perhaps the G wanted to establish RFRA precedent, but if the goal was to quickly dispose of a case involving a problem Marine in a manner that inoculated against lengthy appellate review, the KISS principle might have counseled omitting this offense. 

  50. Tami a/k/a Princess Leia says:

    Alfonso,
     
    How can you say that these quotes were directed toward an unwilling audience when there was NO SUCH EVIDENCE at trial?  There is a difference between being “openly religious” and “preaching to” others.  I can be openly religious about my faith without trying to shove my Christianity down someone else’s throat.  For example, praying before a meal–I can pray to Jesus before I eat, which is an expression of my faith, but I cannot tell others to pray to Jesus before they eat.  
     
    Would also like to see an example of a non-religious quote that is inappropriate and unprofessional.
     
    Someone pointed out that this appears to be a case of a “rebel” Marine pitted against a “hang ’em high” chain of command.  I totally agree.  To screw up once invites more scrutiny by the chain of command, which can lead to more screw-ups, actual and perceived, which can then lead to being “picked on” and more severe disciplinary action than usual taken.  That’s why I asked toward the beginning of this thread if this was an Article 15 turndown.
     
    Also considering the way the SSG disposed of her quotes, calling them shit and throwing them in the trash, I hardly call that “the least restrictive means.”
     
    Pretty much everyone is focused

  51. Just Another ADC says:

    Don’t the arguments concerning whether someone would be “offended” by religious expression in the workplace essentially amount to a heckler’s veto?  There will always be someone who is willing to state they are “offended” by something.  I generally prefer the society where the law supports the right to exercise expression (religious or otherwise) absent a truly compelling government interest, versus the society where people get to run around suing other people to vindicate their “offenses” or, worse, throw them in jail.
     

  52. Monday morning QB says:

    Former SG on the case? You can bet if Clement loses at CAAF he will petition to the Supremes, and they will take a very hard look at granting it.  The SG’s office bats about 1000 on cert petitions, and even though he is in private practice now, his cert petition will get  much more deference than your average one.  This is a stupid set of facts and will likely lead to a bad result for the Government.  If they had NJP’d her, this goes nowhere.

  53. Alfonso Decimo says:

    @Tami: You write there was “no such evidence” that the signs were directed toward an unwilling audience, but the NMCCA states they were large enough for those walking by the desk to read, the workspace where they appeared was shared with at least one other co-worker, and that customers regularly came to her desk for assistance at which time they could see the signs. The judge could have made a better appellate record with more findings of fact and I haven’t seen the transcript, but there is at least some evidence in the NMCCA opinion.  You could more reasonably assert that you believe there was insufficient evidence and I assume that you are simply being colorful because this is only a blog. As for unprofessional quotes on emails, that’s just my colorful opinion, but I didn’t memorize any and I don’t see them anymore now that I retired from the military. 

  54. RKincaid3 (RK3PO) says:

    @ Stewie:  When was the last you saw a case where any government rule survived strict scrutiny? 

  55. Tami (a/k/a Princess Leia) says:

    @Alfonso,
     
    The evidence is that people who DID go to Sterling’s work stations (whether they were customers, co-workers, or friends) testified they were NOT bothered by her quotes.  If the Marine who might have shared her work space was offended, then that Marine should have testified.  That Marine didn’t.  The only person who was bothered was the SSgt who said “take that shit down” and threw the quotes in the trash.  Not an appropriate response from an NCO.
     
    All of this “could have offended,” or “could have had an adverse effect on good order” is irrelevant–this was not charged as an Article 134 offense.  This was charged as disobeying an order, which requires the order to have a valid military purpose and a compelling government interest to infringe on her expression of religion.  Without a complaint from someone about the quotes, the SSgt did not have a “compelling government interest” to justify her order to take down her religious signs.  She may have had a personal interest, but that does not translate to a “government” interest.

  56. ResIpsaLoquitur says:

    Well, I see the story has made FOX News.  I’m not even going to read the comments over there…I’m sure it’ll be a mix of “Thanks, Obama” and other out-of-context funnies.
     
    While I don’t think charges should be subject to a CNN/FOX News test, there’s got to be *some* degree of common sense in what actually goes to court and what goes in mere paperwork. 

  57. Just Another ADC says:

    The reason why the government should lose this case is not because it can’t articulate an interest (although I would argue not a compelling one). The lack of a heckler in this case just demonstrates how stupid the NCO was to make any issue of this. The government’s problem is that it can never demonstrate that the order was the “least restrictive means” of carrying out its interest. If the workspace was indeed “shared” (Clement does a good job of dismantling this in the supplement), a less restrictive means could have been asking the marine to take down the three quotes at the end of her shift before someone else occupied the desk. But even under the old Smith test the government would have problems. I presume other marines were allowed to post modest demonstrations of support for their favorite sports teams, etc. If the government targeted religious speech while allowing non religious speech, it is viewpoint discrimination and not a “general law of neutral applicability.” Forget RFRA. This case doesn’t satisfy Smith. The government should never have brought this case, no matter how annoying the appellant was, and it should lose it on appeal.

  58. Monday morning QB says:

    The reason this was charged in the first place, the reason the judge ruled the way he did, and the reason in NMCCA ruled the way they did, is because no one likes it when an NCO gaffs off a Staff NCO. Period. The government allowed emotion to influence their charging decision, the judge allowed emotion to influence his poorly thought out ruling, and NMCCA allowed emotion to influence their poorly written opinion. 

  59. Tami (a/k/a Princess Leia) says:

    Not that Fox News has any credibility, but its article does shed some light on this case.  Apparently she represented herself at trial–yikes!  I wouldn’t be surprised if she displayed an attitude, especially if she cross-examined the SSgt, and a panel would probably judge her harsher than a judge.  There’s got to be SOMETHING else going on that we don’t know about, to result in a BCD for what are otherwise minor offenses.
     
    Also interesting is the reference to court documents that state something to the effect of:  “if we let her do this, then we’ll have to let everyone else do it.”  Um, isn’t that the point of the RFRA–to be able to express your faith, if that’s what you want to do?  Within reason of course.  They can do this right, without leading to a John Bender moment, “if he gets up, we’ll all get up, it’ll be anarchy!”
     
    Fox News also shows a picture of her in civilian clothes wearing the blue nail polish.
     
    What should be the standard for this, as a “compelling government interest?”  The sexual harassment “reasonable person” standard?  Or an egg-shell overly sensitive NCO standard?  As far as the government’s choice to court-martial her for this, they should have used a CNN standard–if you’ll look bad on CNN for doing this, don’t do it.

  60. ResIpsaLoquitur says:

    The “if we let one person do this, we have to let everyone do it” doesn’t fly.  I know we’d like to think it does, but it doesn’t.  Religion tends to be much more nuanced than that.  And anyway, the current DODI on religious accommodation (1300.17) says that “All requests for accommodation will be assessed on a case-by-case basis.”  You can certainly consider past practice, but I think it’s intended to avoid blanket rules which might backfire later.  So if we had a blanket rule of “members shall be allowed to display Bible quotes,” yeah, that could backfire if someone wanted to put up Leviticus’ statement on homosexuality. Better to let everybody make a one-by-one individual request.  If that sounds obnoxious, well, in my experience these things just don’t come up that often.  I know we like to play “parade of horribles,” but how often does the floodgate open only to reveal a trickle?
     
     
     

  61. Tami (a/k/a Princess Leia) says:

    http://www.foxnews.com/opinion/2015/05/26/marine-court-martialed-for-refusing-to-remove-bible-verse.html
     
    Here’s a quote from the NMCCA:  “Maintaining discipline and morale in the military work center could very well require that the work center remain relatively free of divisive or contentious issues such as personal beliefs, religion, politics, etc.”
     
    So, with me being a Green Bay Packers fan, can I complain about working with a Minnesota Vikings fan?  Can my boss order me to remove my Brett Favre autographed pictures because a co-worker is offended, because he is STILL upset with Brett’s traitorous move to Minnesota?  My response would be, “Seriously?  Get over it.”  I have 2 pictures–does that count as “festooned?”  What about a Seahawks fan having a Patriots fan for a customer?
     
    Considering that being a Packers fan is kind of religious in and of itself, maybe I should consider invoking the RFRA, but that might be taking it a stretch too far….
     
    Just trying to illustrate the realities of today’s workforce.  People are always going to be passionate about something that another person thinks is ridiculous.  People’s opinions and beliefs will be different on different matters, whether it’s religion, politics, or even American football.  Just be respectful and grow a thicker skin.  God help the person who throws my stuff in the trash.

  62. Jolly Roger says:

    The “if we do this for her we have to do this for everyone” argument isn’t just bad, it’s been specifically rejected by SCOTUS:
     

    [The argument] rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law.  The Government’s argument echoes the classic rejoinder of bureaucrats throughout history:  If I make an exception for you, I’ll have to make one for everybody, so no exceptions.  But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.”  42 U.S.C. §2000bb-1(a).

     
    Gonzales v. O Centro Espirita etc., etc., etc.
     
    The other thing that’s interesting about Gonzales is that if the Government has made any accommodations like this in the past it’s going to cut against them now.  You can’t let some people do this sort of thing and then say that there is no room for exception, just like the Government can’t exempt peyote for Native American use but then argue that there can be no exception for hoasca and these O Centro folks.  Since the MJ and CCA ruled there was no substantial burden the burden never shifted to the Government and that sort of evidence was never taken, so there’s another reason to reverse and authorize a rehearing.

  63. RKincaid3 (RK3PO) says:

     
    Just Another ADC::  Nope.  Try again.  That case involved commercial speech in the elected juficiary context (with the court apparently declining to find it to be political speech despite its involving elections).  Thus the court declared quite clearly (and perhaps outright naively and more accurately, disingenuously) that judges are not politicians to be bought and sold, or at least are not to appear as if they are being bought and sold–even though being elected like politicians.  In short, the court determined that the speech involved was more commercial speech with public confidence implications or more similar too commercial speech than political speech. And to my recollection, commercial speech has NEVER received strict scrutiny.  
     
    You are perhaps thinking 1st Amendment = strict scrutiny, but that is NOT the case.  To my recollection, the SCOTUS regularly (if not always) differentiates between political speech and other forms of lesser forms of speech when analyzing what level of scrutiny to apply, with only political (and maybe a few others??) receiving the protection of strict scrutiny, which, when applied nearly always (99.9% of the time) results in the government losing the fight to regulate the activity.
     
    So, I ask again:  when does anyone recall the last time a case was decided when the government law or regulation at issue survived strict scrutiny?  I am genuinely curious as I am sure there is an example–I just don’t recall it, if I ever knew it in the first place.

  64. RKincaid3 (RK3PO) says:

    Jolly Roger’s money quote:
     

    The other thing that’s interesting about Gonzales is that if the Government has made any accommodations like this in the past it’s going to cut against them now.  You can’t let some people do this sort of thing and then say that there is no room for exception…”

     
         Therein lays the primary danger from any “sincerely held” religious exception to any government law or regulation.  It is or quickly becomes a continuously, self-perpetuating and ever growing list of human behaviors (vice beliefs, which are beyond all regulation) that effectively render individuals above, beyond or untouched by the law, and which in turn neuter government by limiting its power to govern generally a diverse nation, even when that power to govern is clearly authorized in the constitution.  When individuals become a laws unto themselves in that way–being limited by only their conscience–and as each decides what laws apply to them, when and if ever, there is anarchy, not well-ordered liberty with a carefully crafted balance between a governed society and individual liberty.
     
    That is why the various RFRAs are just bad lideas, in addition to being just bad laws–and the SCOTUS is just plain weak in not striking them down for what can only be described as protectimg the justices’ own personal religious preferences as they carve out special protections (from government regulation) for mainstream (Abrahamic) religious belief-based behaviors.  

  65. RKincaid3 (RK3PO) says:

    Sorry, folks, for the typos in the above posts.  It is too early and I am using this doggone smart phone with small letters, fat fingers, and sleepy eyes.

  66. Just Another ADC says:

    RK3PO, the case I cited is exactly what you asked for, i.e., a “rule that survived strict scrutiny.” I didn’t say I agreed with the case, but you are incorrect about the court not applying strict scrutiny. 7 of the 9 justices believed strict scrutiny applied, but upheld the rule. If you don’t believe me, just ask the experts:
    http://www.scotusblog.com/2015/04/symposium-when-strict-scrutiny-ceased-to-be-strict/
    that is not to say that the government’s actions here survive strict scrutiny. They should, and do, not. You make some interesting arguments for why the government should be able to prosecute people to maintain “well ordered liberty,” which would require repealing RFRA and (in my opinion) ignoring the correct application of Smith in this case (the government’s conduct was pretty obviously content-based, viewpoint discrimination, rather than a “neutral” and “general” law). I guess all I can say at that point is I’m glad I don’t live in a society where your definition of “well ordered liberty” rules. There doesn’t appear to be any evidence in this case that the appellant harmed anyone by her conduct, I.e., religious expression, or endangered GOAD anymore than someone posting encouraging quotes supporting their favorite sport team. In my “ideal society” we don’t call that criminal. 

  67. Just Another ADC says:

    edit: “the court” upheld the rule, not all 7 of the 9 who applied strict scrutiny agreed on the outcome.

  68. ResIpsaLoqutiur says:

    Respectfully, I don’t think RK3PO’s parade of horribles has or will come to pass.  Two things: one, there’s a general predictability to known religious behaviors.  Religion has been present in this country since it’s founding, and while we have had notable instances of people unwilling to comply with the law (Amish not wanting to send their kids to school; Catholic nuns not wanting to comply with a contraception mandate), it’s not like we’ve regularly had people defying ordinary laws from speed limits to murder in the name of God.  We’ve had enough experience with religion over 250 years to know how people act.  Jews, Muslims, and Sikhs like headgear.  Jews don’t want to work on Saturday.  Catholics don’t like to participate in abortions.  Muslims and Jews avoid pork.  Someone might be offended by this quote, but to quote the Bible–there’s nothing new under the sun.  (We’ll see if a grumpy staff officer wants to pull that part of my comment.)
     
    Two, in my experience, most religions–or at least the Abrahamic ones–expect a general compliance with the civil law.  “Render unto Caesar” and all that.  Most religions also deal with some degree of absolutes, so there’s certain lines that a true believer just won’t cross, but to expect conscience-based anarchy is just plain silly.
     
    The concern may be that religion is getting a special exemption carved out for itself in the law, and why should these people get a break when everyone else doesn’t?  Nevermind that the first part of our Bill of Rights itself carved out a broad governmental exemption for religion as a matter of principle, though the strength of that protection has waxed and waned over two centuries.  I’d like to point out that our laws carve out specific exemptions for certain groups all the time.
     
    Here’s an example: the spousal privilege.  Generally, husbands and wives don’t have to testify against each other, and statements made from one to the other are protected.  Few other relationships get that level protection.  We could argue that it’s silly and discriminatory, since similar strong relationships don’t get that protection.  Cohabitating couples don’t get it.  Boyfriend-girlfriend, close siblings, parent-child, don’t get that level of protection.  We can argue whether they should or shouldn’t, but the point is that society has exempted a chunk of society from having to comply with what otherwise would be a valid court order to testify.  I’m sure there’s lots of spousal testimony out there that would be invaluable in solving crimes, but we make the exception.  Why?
     
    Society recognizes that spouses have a deep connection to each other which, based on human behavior, is going to take priority over the state’s needs.  If we took the exemption away, we’d predictably see a lot of spouses say, sorry, **** you, government, I’m not testifying against my wife.  Or, sadly, they’d take the stand and lie to protect their spouse.  Point is, in married peoples’ minds, spouse takes priority over the state.  The state recognizes this and doesn’t want to put people in the position of having to choose between those two incredibly competing priorities, so it concedes to spousal needs with the exemption.
     
    I see our RFRAs in much the same way–religious people can face an incredible conflict between the state and their God.  Do we really want to jail a rabbi because he believes God wants him to wear a hat?  Do you really want to jail a Catholic doctor for not performing an abortion?  Or is it better to concede that some people simply cannot, psychologically, perform certain activities because they have a competing obligation, so let’s just make the exception so that society can function?
     
    Lastly, I’d remind everyone that RFRA is not a blanket surrender to religion.  It’s a balancing test.  We sometimes talk about RFRA as if it’s a de facto concession of any state obligations in the name of God.  It’s not.  All it asks is that we weigh the priorities and see if alternatives are available.  Neither religion nor the state is guaranteed to win.

  69. ResIpsaLoquitur says:

    On second thought, I had to do a double-take after I wrote and posted this: “it’s not like we’ve regularly had people defying ordinary laws from speed limits to murder in the name of God.
     
    Yeah, Nidal Hasan popped into my head once I reread that quote.  Oy.  I’ll have to make a rational distinction that Hasan didn’t exactly go to his legislature or the courts to get an exemption to murder laws before opening fire.  My general point that most religious people want to be able to live in civil society while being able to comply with their faith-based obligations still stands.

  70. Just Another ADC says:

    RK3PO, you also said:

    That is why the various RFRAs are just bad lideas, in addition to being just bad laws–and the SCOTUS is just plain weak in not striking them down for what can only be described as protectimg the justices’ own personal religious preferences as they carve out special protections (from government regulation) for mainstream (Abrahamic) religious belief-based behaviors.  

    It is incorrect that the Supreme Court has used the free exercise clause or the RFRA to only defend “mainstream (Abrahamic) religious belief-based behaviors.”  I recommend to you Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).  Note that this is note a RFRA case, it is an application of Smith, and the court struck down an ordinance that disallowed chicken-sacrifice.  This can hardly be described as mainstream.  Hialeah is a decent example of why the government’s conduct in this case violated not just RFRA, but the free exercise clause of the constitution.  The NCO’s order was specifically directed at religious exercise by a religious individual, rather than a general neutral regulation restricting all forms of expression in the workplace.
    ResIpsaLoquitur – I’m pretty sure that murder statutes for persons (vice chickens) would survive strict scrutiny.  I guess it’s dangerous to take anything for granted on this blog, but I think all nine of the justices would agree with me.  I’m certain at least five would because the self-identified Catholics would surely adhere to the “Abrahamic” idea that “thou shalt not murder.”

  71. stewie says:

    Weren’t there also peyote case(s)? That’s the whole point of freedom of religious expression…it applies to the “little” religions same as the big ones, or at least in theory it does.
     
    I concur with ResIpsa…we carve out special exemptions and exceptions all of the time.  Spousal privilege. 413, 414, 412. Priest-Penitent privilege. Psychotherapist privilege. Strict scrutiny for race. Intermediate scrutiny for gender, and, arguably/inevitably sexual orientation.  Hearsay rules. We carve out exceptions because blanket rules that purport to be equally fair often end up to not be fair.  Or a greater societal interest than “fairness” intervenes.
     
    RK3 you are way over-focused on sameness and everything and everyone falling under the exact same rules with no exceptions or adjustments for realities.

  72. ResIpsaLoquitur says:

    From my quick read on Wikipedia (I don’t have time to do a full survey of RFRA application across the circuits), RFRA’s often been successful in benefitting Native American tribes.  It gives two examples of Christian challenges failing: Adams v. Commissioner (sorry, but Christians still have to pay their taxes) and Miller v. Commissioner (Christians can’t opt out of having social security numbers even though they think it might be the mark of the beast). 
    If somebody can give an accurate citation of how often RFRA cases are brought by various faith groups (what percent are brought by Jews, Muslims, Native Americans, Snake Handlers, etc.) and how often each type is successful, I’d like to hear it.

  73. Jolly Roger says:

    Stewie, Smith was a peyote case.  Peyote popped up in Gonzales too as a discussion of why the Government doesn’t get to say that there can be no possible exception to the drug laws, as they had already granted a peyote exception outside of RFRA.
     
    RK3PO, Scalia can probably effectively be criticized for appearing to play favorites sometimes but it’s hard to see Smith as an example of that.  We probably ought to credit him with a basic understanding of how stare decisis works.  Smith was a huge rollback of free exercise rights and I think he probably knew the lower courts would be rolling back Abrahamic free exercise rights as well.  Nothing about Hobby Lobby is inconsistent with that because Hobby Lobby undid Smith legislatively.  Congress’s idea, not his.  Also, I don’t believe there was a consitutional challenege to RFRA in Hobby Lobby so it shouldn’t be surprising that the Court didn’t strike it down, since it was just a statutory interpretation case.  What would be surprising is if the Government got sued under a federal statute and then responded by saying the statute is unconstitutional.  As a general rule that’s not how the Government responds.

  74. dyskolos says:

    I’m certain at least five would because the self-identified Catholics would surely adhere to the “Abrahamic” idea that “thou shalt not murder.”

    Just to be clear, the primary “Abrahamic” religions are Judaism, Christianity, and Islam.  So I think we probably would have a clean sweep of the justices.

  75. dyskolos says:

    Oops! That has an ugly look. My apologies.

  76. stewie says:

    I don’t know, I thought your mso-para-margin-left:oin; argument was quite persuasive!

  77. KickMe says:

    And I guess the mandatory “Christian Chaplain reading the invocation” at EVERY SINGLE MASS FORMATION OR CHANGE OF COMMAND” isn’t a de facto establishment of religion by the government, amiright?
    Stupid case is stupid.  And even more ridiculous in light of my above question.  If it is okay for the military to basically have a close order drill command “Let us pray”, whereby we go to a modified parade rest position to “pray”, then return to a position of attention and so on and what not.
    Why a command decided to go head-up on a religious question is beyond me.  Why the SSgt decided to be overly involved in this LCpl’s workstation when likely there was Chaplain-provided material on the read-board in that office in plain view, religious quotes all over the government email system as signature lines, and the mandatory reading of scripture at command functions is equally, if not more, ridiculous the more I read this.
     
     

  78. dyskolos says:

    Kick Me –
    Yeah, but context is all. Up top they have already discussed openly placing biblical scripture in the workplace that is disruptive in a military setting.  Also, anyone have any doubt that if the LCPL responded to an order or comment from the SSG by quoting Ezekiel 25:17 and channeling Samuel L Jackson from Pulp Fiction that wouldn’t be disrespectful or insubordinate? 
     
    I doubt this is an instance of sincerely held statements of religious principles and more a case of sass using a fig leaf of scripture.

  79. J.M. says:

    I noticed this in the NMCCA decision (page 9): 

    the appellant never told her SSgt that the signs had a religious connotation and never requested any religious accommodation to enable her to display the signs

    Food for thought. 
    BTW, since this case has hit the news, it’s started to be discussed on various websites. It’s nice to see that here the commentators are actually reading up on what happened and thinking about it, instead of forming an opinion based on the title and first paragraph. Don’t see enough of that on the internet.

     

  80. Learned Ham says:

    Do I smell an outreach argument on this one?

  81. Tami a/k/a Princess Leia says:

    J.M.,
     
    The problem with NMCCA’s opinion is that it goes on to say that the order to remove the quotes was lawful, based on the potential for religious quotes to cause disruption to good order and discipline, that anyone coming to her work station “could have been offended” or felt that the quotes were akin to proselytizing Christianity.  The evidence is that no one but this SSgt was offended by the quotes, and it appears the order was given based on a personal grug instead of a concern about good order and discipline and morale of all who interacted with Sterling.  The NMCCA can’t have it both ways.

  82. Peanut Gallery says:

    Good point, Tami.  Similarly, how can NMCCA say it’s NOT a religious exercise, but then go on to say that it’s religious nature could have offended someone?  It’s either religious or it isn’t.  It can’t be not-quite-religious-enough for RFRA purposes, but way-too-religious for good order and discipline. 

  83. Monday morning QB says:

    When you make the unqualified appellate judges just so they can kick it in DC before retiring into a federal GS job, you get opinions like this.  The sea services are behind the power curve at NMCCA.