I noted the petition for review in the Marine Corps case United States v. Sterling, No. 15-0510/MC, in this post. The case asserts a violation of the Religious Freedom Restoration Act (RFRA) in the application of a military order.

Friend of CAAFlog Don Rehkoph forwards the Government’s answer to the petition for grant of review (available here), as well as an amicus brief he authored on behalf of the Military Religious Freedom Foundation and in support of neither party (available here). Both briefs argue that CAAF should deny review.

2 Responses to “The Government’s answer and an amicus brief in Sterling”

  1. RKincaid3 (RK3PO) says:

    A good government brief and a great Amicus brief!  Let’s hope the CAAF does the right thing and sustains the conviction.  This was NOT an infringement of a sincerely held religious belief until it became useful as a trial tactic.  The accused’s assertion of some flexible, amorphous and entirely subjective religious belief is nothing but an afterthought as a defense and excuse for otherwise deliberate misconduct that has the effect of exempting the individual from neutral but generally applicable laws, rules and regulations.  She wants to be a law unto herself–accountable and beholden to no standard but her own.  And we know where that standard gets us as fallible and brutal Godless and God-fearing humans.
    That being said, some of the language in the recent SCOTUS’ decision in EEOC v Abercrombie and Fitch, a Title VII case, could be helpful to the accused on the issue of whether actual notice of the need for an accommodation (e.g., some affirmative act by the individual affected actually requesting an accommodation) is required vice implied notice (e.g., the need for an accommodation is patently obvious from the circumstances and thus the requirement to accommodate is self-executing to a reasonable person observing the particular circumstances). 
    It is interesting to note that none of the briefs submitted incorporate any reference to any possible useful authority to be found in either the EEOC or Texas Housing cases–not even as mere dicta–even though those cases were announced by the SCOTUS on 1 June 2015 and 25 June 2015, respectively.  Perhaps the latest briefs were filed before the SCOTUS released them?  Will have to check that out!
    The EEOC case involved disparate impact theory on the issue of notice of the need for accommodation.  Interestingly, the disparate impact theory was also upheld by the SCOTUS recently in the context of the Texas case involving Fair Housing Act claims.  And it does seem that the government’s primary assertion in its response briefs (which also appears to be supported by the Amicus brief) is that the accused can’t invoke a need for a religious accommodation for which she didn’t ask.  If the EEOC and Texas cases have any instructive or persuasive value–even if merely via dicta–then the accused may prevail at CAAF simply because the phrase was arguably sufficiently religious in nature–even if not directly attributable at casual glance to any particular religious belief system.
    So, it seems possible that it will boil down to CAAF interpretation of the words used by the accused on her signs–were they so obviously religious that the need for an accommodation was self-executing without a request, if only to avoid a disparate impact?  If so, then, that would trigger, arguably, the RFRA analysis, no?
    Does the religious nature of the request have to be specifically attributable to a “well known” or “accepted” religious belief system in order to be considered religious?  If so, doesn’t that favor mainstream, well known, religions and hinder the exercise of lesser known, minority faith traditions whose invocation would not be obvious?  Would such a rule actually violate the 1st Amendment by creating implied preferences by government policy for mainstream religious practitioners over the rights of similarly situated but lesser known faith traditions?
    Would it not just be so much easier to avoid this whole thing by getting rid of RFRA and returning to the Dep’t of Smith v. Oregon standard?  (I know–not a decision for the CAAF).
    Or, as so many of you have both thought and said, is this just me being hyperbolic–or just plain wrong–again?
    BTW, I luv learning…it is both thrilling and can be, at times, embarrassing (unless one uses a pseudonym)!

  2. Weirick says:

    Many thanks to Don Rehkoph, but the need to have him provide this document exposes an absolutely unacceptable deficiency by CAAF. 
    PACER (Public Access to Court Electronic Records) is an electronic service that allows any user access to court records.  CM/ECF (Case Management/Electronic Case Files) is a complementary system, which allows individuals to file documents though the various court’s electronic filing system. 
    CAAF remains the lone holdout from joining PACER CM/ECF, among United States federal courts.  I have discussed this issue with the Administrative Office of the United States Courts, and they confirmed that it would not be an issue to add CAAF to PACER and CM/ECF.  Additionally, I presented this information to CAAF, now a decade ago.  No interest. 
    It is almost unthinkable that military-justice practitioners are dependent on the good will of individual litigants to gain access to government filings at our highest court.  It is time to professionalize our practice and embrace the transparency employed by all other federal courts.