CAAF will hear oral argument in the Marine Corps case of United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page), on Wednesday, April 27, 2016, at 9:30 a.m. The case presents specified and certified issues that challenge the lawfulness of an order given to Sterling – a Marine lance corporal (E-3) who posted small, purportedly-religious signs in her workspace – to remove the signs, and also whether (and if so, how) the Religious Freedom Restoration Act applies to Sterling’s conduct:

Specified Issues:
I. Did Appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?

II. Did Appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Certified Issues:

I. Did Appellant’s failure to follow an instruction on the accommodation of religious practices impact her claim for relief under the Religious Freedom Restoration Act?

II. Did Appellant waive or forfeit her Religious Freedom Restoration Act claim of error by failing to raise it at trial?

Contrary to her pleas of not guilty Sterling was convicted by a special court-martial, composed of members with enlisted representation, of failure to go to her appointed place of duty, disrespect towards a superior commissioned officer, and four specifications of disobeying the lawful order of a noncommissioned officer, in violation of Article 86, 89, and 91. She was sentenced to reduction to E-1 and a bad-conduct discharge.

Sterling’s court-martial arose out of her contentious relationship with her superiors. She was convicted of offenses for her refusal to wear the service C uniform, her refusal to perform duty handing out vehicle passes, and her refusal to obey an order to remove three signs that she posted in her office workspace. The signs stated “no weapon formed against me shall prosper” and Sterling asserts that they represented the Christian trinity and were posted as an expression of her religious belief. CAAF’s review focuses on the order to remove the signs.

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), involving a religious exemption from the contraception coverage requirements of the Affordable Care Act. RFRA generally protects an individual’s free exercise of religion from Government action, however the individual’s activity must involve sincerely held religious beliefs and the Government action must substantially burden the exercise of those beliefs. If both preconditions are true then the Government action is subject to strict scrutiny.

Sterling represented herself at trial (though she had the assistance of detailed military defense counsel). She litigated the lawfulness of the order to remove the signs, generally asserting that the signs were religious and protected. She did not, however, explicitly litigate the applicability of RFRA; a point that the Government now asserts bars her claim on appeal. She did litigate the issue before the NMCCA (which found that RFRA did not apply to the signs), however the Government also claims that her appeal is limited to the NMCCA’s findings and not the military judge’s conclusions at trial. The Government’s briefs put significant effort into encouraging CAAF to avoid the question of the applicability of RFRA entirely, ultimately asserting that:

[CAAF] should . . .  pen an opinion that clearly signals that R.C.M. 905 (1) requires trial litigants to explicitly raise the Religious Freedom Restoration Act at trial, typically as a motion in limine, and (2) requires litigants to litigate the basis for that motion before the factfinder in the first instance, including whether the litigant’s acts matched the exercise of religion asserted, whether the acts were sincerely performed, and whether a substantial burden existed.

Gov’t Reply Br. at 9.

Assuming however that CAAF actually reaches the merits of Sterling’s claim, there are three substantive questions: (1) was Sterling’s placement of the signs (or, perhaps, her refusal to remove them) a expression of a sincerely held religious belief; (2) if so then did the order to remove the signs pose a substantial burden on her expression, and; (3) if so then was the order the least restrictive means to achieve a substantial Government interest. Each point is hotly contested by the parties in their briefs, presenting lots of fertile ground for argument.

The case also attracted a large number of amici curiae, with eight briefs posted on CAAF’s website. Of these eight, six are in support of Sterling, one is in support of the Government, and one is in support of neither party.

One thing to listen for during Wednesday’s oral argument are signs that CAAF will resolve this case narrowly and in a way that sets no real precedent. The Department of Defense recognizes that RFRA applies to the military and DoD Instruction 1300.17 (available here) sets forth procedures for service members to request religious accommodations, however those procedures were significantly revised during the trial of this case. Yet it seems that Sterling never really requested any sort of accommodation, and the case presents her as an insubordinate troublemaker. While the various factions lined up behind and opposed to Sterling’s claim of religious persecution likely seek a broad proclamation from CAAF in this case, I suspect that the court will seek a subtle resolution.

Case Links:
NMCCA oral argument audio
NMCCA opinion
Blog post: A military order vs. the Religious Freedom Restoration Act
Blog post: The Government’s answer and an amicus brief in Sterling
Blog post: CAAF grants (on specified issues) in Sterling
Blog post: Navy JAG certifies issues in Sterling (and the appellant files her brief)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Appellee’s (Government) reply brief
Amicus brief (in support of Sterling): Aleph Institute, et al.
Amicus brief (in support of Sterling): Alliance Defending Freedom and Chaplain Alliance for Religious Liberty
Amicus brief (in support of Sterling): Citizens United, Citizens United Foundation, U.S. Justice Foundation, Faith and Action, Public Advocate of the U.S., Conservative Legal Defense and Education Fund, Institute on the Constitution, E. Ray Moore, and George P. Byrum
Amicus brief (in support of Sterling): Members of Congress, American Center for Law and Justice, and Committee to Protect Religious Liberty in the Military
Amicus brief (in support of Sterling): Nine Retired General Officers
Amicus brief (in support of Sterling): Rabbi Philip Lefkowitz
Amicus brief (in support of Government): Americans United for Separation of Church and State, Jewish Social Policy Action Network, and People for the American Way Foundation 
Amicus brief (in support of neither party): States of Oklahoma, Nevada, Arizona, Arkansas, Georgia, Nebraska, South Carolina, Texas, Utah, and West Virginia
Blog post: Argument preview

13 Responses to “Argument Preview: United States v. Sterling, No.s 15-0510/MC & 16-0223/MC”

  1. Former DC says:

    Prediction: Without expressing any view on the merits, if CAAF does not take the procedural way out, this case will have a real shot at the Golden CAAF.
    Reasoning: 1) It isn’t really a UCMJ case, which SCOTUS seems to want to avoid; 2) RFRA is a hot-button topic at the Court right now, with both sides looking to alternately expand or contract its scope, thus making the probability of four votes greater, even if for different reasons; and 3) To non-military, the facts can easily be spun to be “oppressive” to the E-3 (again, no advocacy for either side, but this is clearly a possibility)., which is some groups favorite pastime, it seems. 
    Do any here gainsay my words?

  2. Dew_Process says:

    There’s a more fundamental problem – aside from the waiver/forfeiture issue – and that is as the government points out what Sterling claims is a quotation on the signs at issue, is from the Old Testament’s Book of Isaiah [Appellant’s Brief, fn. 1], in fact is not. Rather, it is a quotation from a song (albeit religious). [Gov’t Brief/Answer, fn. 5]. Misstating a crucial “fact” is not a good way to begin an appeal.
    Additionally, Sterling ignores the rather explicit Legislative History behind the FRFA – the Senate Report states:

    The courts have always recognized the compelling nature of the military’s interests in these objectives [maintaining good order, discipline, and security] in the regulation of our armed services. Likewise, the courts have always extended to military authorities significant deference in effectuating these interests. The committee intends and expects that such deference will continue under this bill. [Senate Report 103-11 (July 27, 1993), at 11-12].

    The House Report contains almost identical language.
    Of particular note is Sterling’s lead counsel, former U.S. Solicitor General, Paul Clement. He is without a doubt the best appellate advocate I’ve ever seen in action, so the “court-watchers” will get their money’s worth!  But, Sterling’s own trial testimony backs him into a corner:

    Q: What was your intention in putting these signs up?
    A: It’s just purely personal. Like I just — it’s a mental reminder to me when I come to work, okay. You don’t know why these people are picking on you. [JA 114].

    Should be an interesting oral argument to say the least!

  3. Concerned Defender says:

    Who are the morons who bring such a Charge or Spec to trial and risk all the waste of time and energy on an appeal?  Who are the leaders who even care about the small religious sign?  Fire the NCO after a counseling.  Charge Sterling with the other crimes, if they are legit.  And drive out.  
    By comparison, Sikh’s won their rights to wear their head dress turbans and have full beards IN UNIFORM.  So, there’s that.  But yes, a small discrete Christian sign at a work station is clearly an obstruction.  Good grief.

  4. DCGoneGalt says:

    CD:  While I do not concur with your bombast, I concur in going with the easy kill and avoiding the religious thicket of by charging this appellate monkey wrench.  Although it may have been one more thing that annoyed the command, it just isn’t worth it when you have other misconduct that can be used to accomplish the desired end state of making this person a civilian as soon as possible. 
    Then again, maybe I am a dinosaur because the government strategy these days seems to be akin to a 1-L crim law exam . . . creatively exercise your imagination and write down everything that can possibly be charged..

  5. Philip Cave says:

    So getting religion after you are in trouble is not a get out card, or words to that effect?

  6. Dew_Process says:

    Just to be clear, Sterling was not charged with posting the signs (3 of them, all saying the same thing) on her desk, in a common area, frequented by many Marines during the duty day. Rather, she was charged with violating an order from her NCO supervisor to remove the signs, twice. When she didn’t comply with the first order, the Supervisor removed the signs herself. When they re-appeared, the Supervisor again ordered her to remove them. When she didn’t, that was the proverbial straw . . . .
    Sterling was also charged and convicted of a Failure to Go (actually when ordered to perform “gate duty,” she refused); Disrespect to her Commander, a Major; Four Specifications of violating Art. 91, two regarding the orders to “take down the signs,” one for violating an order of a SSgt to change into the uniform of the day; and one for violating an order from her First Sergeant, to change into the uniform of the day. She was convicted of all offenses, but only appealed the Specs involving taking down the “signs” to CAAF.
    Notably, there was no mention of “religion” until the court-martial was well-underway and even then, she (or her slightly more than standby counsel – the MJ wisely allowed a hybrid pro se approach) never specifically invoked the RFRA.  So how the issue is preserved is problematic imho, and perhaps explains the issues specified by CAAF. So under the circumstances, I have no problem with the charging scheme as she was clearly a defiant and disrespectful Marine that caused considerable problems in her unit.
    But as Former DC accurately notes, if you read some of the amici curiae briefs filed on her behalf, you begin to wonder if they are even about the same case! Sterling is indeed characterized as the “Christian” being persecuted by the USMC.  This was simply not the case to litigate the applicability and scope of the RFRA within the military under the factual circumstances and what did and did not happen at trial.

  7. Dew_Process says:

    PS: Sterling was also charged with and convicted of violating Art. 107, for making a false official statement!

  8. Concerned Defender says:

    DP – I think we are all clear on the charges.  The point is that the order to remove these small signs, and the NCO actually removing this, is questionable judgment at best and possibly an unlawful order.  That would at least be worth investigating, a defense to raise, and a host of other issues like maltreatment, harassment, violating ones’ religious liberty, etc.  For example, if you walk into a Chaplain’s office, I guarantee there’s a cross or other religious items and signs on display.  
    If I were the TC I would have strayed far away from these two “failure to follow orders” allegations since they are so problematic.  If I were the DC, I’d drive a truck through them and paint my client as sympathetic as possibly, and just being picked on by the bullys she worked for. 

  9. DCGoneGalt says:

    CD:  I don’t see it as an unlawful order or an exercise in questionable judgment by the NCO who took it down, I just don’t see why you would fight this particular battle when the greater war can easily be won by just convicting on other grounds and discharging her.  IMHO, picking fights is worth it in a murder, agg assault, sexual assault type prosecution but I just don’t see the return on investment here.

  10. Zachary D Spilman says:

    A few responses to some of the excellent comments so far.

    This is a terrible case for cert, Former DC, because of the litany of procedural defects highlighted in the Government’s brief. By any measure the RFRA claim is poorly-preserved and the record is a disaster (primarily because of the failure of Sterling to clearly present the issue, even with the broad reading typically applied to claims by pro se litigants). 

    I don’t think it’s particularly significant that the signs were derived from a song, Dew_Process, and not from actual scripture, as there’s no shortage of misattribution of quasi-religious catchphrases. But I do think Sterling’s characterization of the military environment as a situation where people were picking on her betrays an ulterior (non-religious) motive for the signs. 

    Finally, I think you’re taking a myopic view of this case, DCGoneGalt. Sterling’s actions (and particularly her insubordination) was undoubtedly disruptive, and the command likely felt that it needed to press her disobedience of the order(s) to remove the signs because of its effect (real or perceived) on the unit. It would be different if she had actually requested an accommodation and her commander responded with a charge sheet, but that’s not the facts.

  11. DCGoneGalt says:

    Zach:  The desired end state is to take her to court and get rid of her.  That mission could have been accomplished without even messing around with this.  Instead, the government is spending who knows how much time and resources litigating over a sign in an office cubicle.  If the sign in the cubicle alone WAS the crux of her misconduct, then I don’t think she would have gone to court.  So why add it onto a slam-dunk case?
    I also think adding charges like non-service rested adultery onto a sexual assault case is unnecessary.  But at least it doesn’t have a potential appellate time bomb in it.  IMO, this is just unnecessary.
    Again, she seems like the kind of person who never would have requested an accommodation because it appears to me that the purpose of her conduct was to thumb her nose at her supervision.  So get rid of her as quickly and easily as possible.  It reminds me of times when I had clients who the unit would keep around to give letters of reprimand or Art 15s to instead of discharging them and then they ended up having to keep the member around for months on end because of a court for minor misconduct that wouldn’t justify pre-trial confinement.  
    At some point, just isolate the person and discharge them and avoid the waste of time and money.   

  12. Bill Cassara says:

    While there may be a good RFRA case out there, this isn’t it. Her invoking of scripture (or song) was clearly done to thumb her nose at her supervisor and to taunt him for her alleged mistreatment.  If a soldier posts a bible verse in their cubicle as a means of inspiration, that’s one thing. But that is not the case here. She was picking a fight. But like everyone else here, I probably wouldn’t have charged it anyway. 

  13. Philip Cave says:

    But like everyone else here, I probably wouldn’t have charged it anyway. 

    BB, no, but maybe the commander did, or would.  :-)