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:
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?
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.
• 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