Update: It is very difficult to hear Judge Ryan in CAAF’s recording of the oral argument in Sterling. I was able to enhance the recording to make her easier to hear. The enhanced audio is available here

Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Witt, No. 15-0260/AF (CAAFlog case page): Oral argument audio

United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page): Oral argument audio (original from CAAF)

48 Responses to “CAAF argument audio: Witt & Sterling”

  1. Former DC says:

    For the first time I can remember, Fox News showcased a CAAF case.  They put on several minutes about Sterling and discussed it clearly as a RFRA case.

  2. stewie says:

    well ya know no one is more persecuted than Christians in America.

  3. The Silver Fox says:

    Christians haven’t traditionally been persecuted in America; therefore, it’s funny to persecute them/deprive them of rights now?  Is that the argument, Stewie?  

  4. stewie says:

    1. Christians haven’t been persecuted in America, ever…not “traditionally” not persecuted.
    2. The Christian in this particular case wasn’t “persecuted,” or “deprived of rights.”  Nor is the case particularly funny, it’s just a bit of a waste of time that this is being appealed.
    3. That Fox News decided to highlight this case over the myriad much more worthy of discussion military cases they could have picked, reinforces the persecution complex that is even more perplexing when it comes from the least persecuted group in this country.
     
    That’s pretty much “my argument.” Although really, it was more of a sarcastic opine than an argument.

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

    Judge Ryan needs a microphone right in front, because I couldn’t hear anything she said.
     
    When I decorated my office, I used to have a picture of Sir Thomas More (I can’t find it now after years of moving around), the patron saint of lawyers.  “Patron saint” is tied to religion, and it was nice to have it in my office to give me strength in battling my opponents.  But the picture itself isn’t overtly religious, it simply says “Sir Thomas More.” 
     
    The Government seems to argue that I have to ask for accommodation before I can ever hang that picture in my office.  I don’t think that’s what RFRA requires.  I say I get to hang it in my office, and IF there’s a complaint, then I get to ask why and invoke my religious practice.  The Government then needs to establish a compelling government interest in making me take that picture down from MY office, and also that there is no way to accommodate my practice short of making me take my picture down.  Maybe there are alternatives that would allow me to continue hanging the picture in MY office, such as the complainant developing a thicker skin and not being offended by something that has a religious context, but isn’t overtly religious.  Maybe that person should no longer come into my office.  Regardless, I think, in the absence of a compelling government interest, there is a requirement for the Government to explore options short of preventing someone from exercising his/her religion.  I’m struggling to figure out the “compelling government interest” in Sterling’s case.  There was no evidence that her conduct offended anyone, other than the NCO she already had a personality conflict with.  Her signs weren’t creating “clutter.”  I got it she’s a Marine, but the Marines don’t get to do whatever they want simply because they’re Marines.
     
    Seems there are ways this could’ve been resolved, short of the NCO ordering her to take “that shit” down.

  6. stewie says:

    I’m sure there may have been other ways that it could have been resolved, that doesn’t mean it’s required to choose one of those other ways. Nor does it make it persecution to not do so.  And she wasn’t in an office. You likely were in an office, with a door, just you.  She shared a work-space with other people. Your pic wasn’t overtly, or even obviously, religious.  And if you’d been told to take it down, I suspect ultimately you would have.
     
    Maybe the complainer should have thicker skin. Maybe not. Maybe the NCO is overreacting. Maybe not. None of that is particularly relevant I think because I don’t think there’s a right to hang religious items in a shared, public work-space which doubles as a place the public visits in the military.
     
    If you need time to pray, or you need to wear a certain piece of head-gear, or need to put ash on your forehead once a year, or fast once a month, etc, those are the kind of things to me that is what is anticipated when dealing with religious accommodation.  Not a “right” to hang religious or religious themed items in a shared, public work area.

  7. The Silver Fox says:

    “Christians” is a quite a broad term.  Never persecuted?  If you looked back at our country’s history, I am sure you would find many Catholics, Mormons, Puritans, and so on, who would strongly disagree with you.  Nonetheless, whether as a group they are, at this very moment, “persecuted,” according to your definition, they are still entitled to the same rights, freedoms, and respect as any other religion.  And, why is this particular appeal the bridge too far for you?  I guess your zeal only applies to those accused  of sex offenses?

  8. Concerned Defender says:

    I suppose Service Members can no longer carry currency in the workplace.  It has the phrase “In God We Trust.”  The entire Constitution that they are sworn to uphold is BASED in Christian values and foundation … take those off the walls too I suppose.  
     

  9. afjagcapt says:

     
    Speaking of Christianity, we all clearly need to get off this blog and get to Church ASAP; if the Silver Fox and Concerned Defender agree on something, the four horseman must quickly be drawing nigh…

  10. J.M. says:

    afjagcpt:
    Human sacrifice! Dogs and cats, living together… mass hysteria!
     
    https://youtu.be/SA1SxZoFmOU

  11. Hector says:

    I say I get to hang it in my office, and IF there’s a complaint, then I get to ask why and invoke my religious practice.
     
    Defendant in this case didn’t invoke her religious practice; in face, she didn’t even say it was a religious message until the trial. If she had, this would be a different case. I don’t think the RFRA requires all third parties to be able to instantly detect that a short phrase is drawn from the Bible and therefore religious in nature.

  12. Concerned Defender says:

    Imagine defense exhibit A – a US $1 dollar bill.  You could get creative.  A pile of defense exhibits of currency.  Sergeant Hardnose, do you prevent your Soldiers from carrying the $1 bill?  $5 bill?  Do you yourself carry American currency on duty?  Would be a fun examination.  

  13. Passing By says:

    “Catholics, Mormons, Puritans, and so on, who would strongly disagree with you.”
    They would probably also mention that they were tired of being persecuted by…in many if not most cases…other Christians.  Then again maybe it was the Ottoman Turks burning crosses in Catholic yards in the Midwest in the early 20th century.  My friend’s grandmother never mentioned a specific group, so who knows.

  14. stewie says:

    on the wide list of groups persecuted in this country over the years Christians are way, way, way down on the list. Of course they are entitled to the same rights, etc…of course, those rights weren’t violated in this case, and most of the “violations” claimed in this day and age effectively are because some small group of Christians don’t like having to accommodate “those gay people” or don’t like not having a “first among equals (but not really)” status that they enjoyed for pretty much all of US history.
     
    But hey, if you have to go back to Catholics at the turn of last century for your persecution or Mormons, I’d say you’re doing pretty good. And if your persecution is that you can’t put up religious signs in a common, public work space as part of the federal government/military, I’d say you’re doing better alright.
     
    And In God We Trust? I thought we were all lawyers and knew that was de minimis? And no, the entire Constitution is not “based on Christian values.”

  15. Philip Cave says:

    the entire Constitution is not “based on Christian values.”

     
    You might add, Matthew Stewart, Nature’s God: The Heretical Origins of the American Republic, to your Saturday (Sunday, Monday) reading list.
     
     

  16. Peanut Gallery says:

    It sounds like Mr. Clement’s argument was not that there is a First Amendment carte blanche to do whatever you want in the military and “cloak it” in religion.  Nor is he saying RFRA provides some sort of statutory carte blanche to do whatever you want and get away with it in the military.  I think his argument is that RFRA provides a legal framework for analyzing cases in which the government has substantially burdened someone’s religious exercise.  And here, the appellant was tried and convicted–which is undoubtedly a substantial burden–without being afforded  RFRA’s legal framework.  It’s heightened scrutiny, but that’s not to say the government will never prevail on the merits.  The problem here is the government tried won without playing by the rules Congress established.  

  17. stewie says:

    I don’t agree with the connection. She wasn’t substantially burdened in her religious exercise simply because she was court-martialed.  That logic would then mean ipso facto if you are tried for anything to which you can relate religious beliefs, then you’ve met the legal standard of substantially burdened.
     
    No, IMO, the proper question is, were her religious rights substantially burdened when she was told to take down the signage. If the answer is yes, then you have something whether court-martialed or not. If the answer is no, it likewise doesn’t matter that she was court-martialed.

  18. Zachary D Spilman says:

    And here, the appellant was tried and convicted–which is undoubtedly a substantial burden–without being afforded RFRA’s legal framework. It’s heightened scrutiny, but that’s not to say the government will never prevail on the merits. The problem here is the government tried won without playing by the rules Congress established.  

    That was Mr. Clement’s argument, but I think it a revision of the record (and one that Mr. Keller seemed gun-shy about highlighting).

    Sterling’s court-martial conviction is not a burden on an exercise of religion because Sterling was not prosecuted for the signs; she was prosecuted for disobeying the order to remove them. At the most, only the limits on the signs (the time, place, manner restrictions, one might say) were a burden. 

    While there is a relationship between the order and the action (Mr. Keller conceded something to the effect of the order possibly coercing Sterling to abandon her religious beliefs), the burden was the order, not the prosecution for violating the order. There is a fundamental difference between an action and a military order prohibiting an action. Mr. Clement gave another example of this when he argued a hypothetical about reducing the speed limit on the road to church. The burden is the reduced limit (and the corresponding lengthening of the drive), not the later prosecution of a speeding parishioner for reckless driving. To equate Sterling’s prosecution for disobedience to a persecution of a religious belief is to say that the speeding ticket is the same as a prosecution for going to church.

    Sterling could have been prosecuted for expressing her religion (under Article 134, at least), but that’s not what happened. She also could have challenged the order (asserting RFRA through the DoD Instruction, for example) but that didn’t happen either. She simply disobeyed.

     

  19. Peanut Gallery [2] says:

    So we want to take Hobby Lobby (itself ridiculous), and make it more ridiculous by saying military members can post signs about Jesus in work spaces to purposely agitate.  As Margaret Thatcher said, “No.  No.  No.”  

  20. Concerned Defender says:

    Okay, but let’s be consistent.  If the order was unlawful, it needn’t be followed.  
    Nobody has addressed the fact that there is a Christian phrase on our currency.  Also, how about the Sekh’s wearing beards and turbans in uniform – clearly an outward religious sign and statement that is more disruptive than a tiny sign or 3 on a work station.  How is that okay, and these little signs not be okay and not an unlawful order?  She would have been permitted to wear a cross on a necklace – I certainly did in the military.  Our dog tags state our religion on them.  
    http://www.cnn.com/2016/04/04/us/sikh-army-captain-simratpal-singh-beard-turban/

  21. afjagcapt says:

    @CD, I’d guess that no one has directly responded to the “In God We Trust” comments because Courts already have and have found it to be a ceremonial, rather than religious expression. Want to argue that? Frankly, I’d probably agree with you: it probably should be unconstitutional.
    As to the Sikh issue, how is wearing a turban disruptive? Uniformity? Fine, I agree: get rid of the accommodation and that for yarmulke’s too. Let’s all be uniform.
    What I don’t understand is why you can’t see that a marine responding to her leadership by posting signs, whether having some religious character or not, that essentially indicate she believes she is not subject to command sanction is not a problem which can be remedied with an order to remove it. What she did is the semantic equivalent of posting a sign saying “USMC GFY.”

  22. stewie says:

    I did address our money.  It’s de minimis, we have supreme court rulings and everything.
    The “Sekh” wearing a turban is an example of a religious accommodation that is fine IMO, as you point out it is akin to allowing Jewish/Muslim headgear to be worn, or the ash from Ash Wednesday to be worn.
     
    This is all not really all that confusing unless you are straining to find “persecution” in this case.

  23. Joseph Wilkinson says:

    (Reposting something I wrote in the previous thread, as it seems the conversation moved from there to here before I posted.)
     
    CD — The difference here is context.   By her own statement (in the opinion) the signs were her response to people (presumably leadership) “picking on her at work.”  A sort of passive-aggressive rebuke to the leadership, a way of saying, “you can’t get at me or make me change my ways,” but trying to use religious verses to make it “untouchable.”  It’s more subtle than if she had posted Psalm 22:16 (“For dogs have surrounded me; A band of evildoers has encompassed me”).      
    By analogy, imagine if a subordinate had been making urgent suggestions to his leadership, which (in his mind) they obtusely ignored.  To show his defiance he posts Q 2:6-7 (“Verily, those who disbelieve, it is the same whether you warn them or do not warn them, they will not believe.  God had set a seal on their hearts and on their hearings, and on their eyes there is a covering.  Theirs will be a great torment.”), but of course he says it’s just an inspirational verse from his religion.  Even on small cards, in a relatively unobtrusive way, the leadership may well understand it as insubordinate rather than merely inspirational, and demand it be removed.
     
    Without that context, I doubt the leadership would have cared about the tiny little signs…but then, without that context, I doubt she would have posted them.  That may be why the command wanted this particular offense punished — to show people that you can’t use religious freedom as an excuse to subtly rebuke your leadership on duty.
     
    It’s hard to see how the symbols you’re talking about could or would be used in this way.   (Though your previous example, a picture of the missus, might…if, say, your leadership has been on your case one day, and the next day you put up a picture of your one-and-only holding up a sign that says “Mean People Suck.”)

  24. Zachary D Spilman says:

    I think there’s room for a legitimate debate over the lawfulness of the order, separate from the RFRA issue. Considering Sterling’s other misconduct I think it likely that the point of the order was merely to screw with her. I imagine that plenty of other workspaces had signs in them.

    But a SNCO screwing with a junior enlisted doesn’t win much media attention.

  25. Dew_Process says:

    The signs weren’t “little.” Sterling testified that at least 2 of them were in 28 point font and she couldn’t remember about the third.
     
    The Sikhs requested accommodations and at the “urging” of a federal judge have gotten them with specific limitations – Sterling never once requested any accommodations nor did the subject of religion ever come up until mid trial.
     
    Here’s the MJ’s ruling on this:
     

    The court believes that — or finds that the orders o f Staff Sergeant Alexander were, in fact , lawful orders and they were each related to a specific military duty. Under orders of the individual , that being, Staff Sergeant Alexander, was authorized to give to the accused, each of those orders require the accused to do something immediately or at a future time, and each order was reasonably necessary to safeguard and protect the morale , discipline , and usefulness of the members of a command, and were directly related to the maintenance of good order and discipline of a service.
    The court finds that the orders were given because the workspace in which the accused placed the signs was shared by at least one other person. That other service members came to accused’s workspace for assistance at which time they could have seen the signs. The court also finds that the signs, although the verbiage in them and the quotes in them were biblical in nature, read something to the effect of no weapon found against me shall prosper, or words to that effect; which could easily be seen as contrary to good order and discipline . The signs that Staff Sergeant Alexander ordered the accused to remove from her workplace contained a religious language, this court further finds that the order to remove those signs did not interfere with the accused’s private rights or personal affairs in anyway . And the defense motion to dismiss that — those two specifications is denied. [emphasis added]

     

  26. Peanut Gallery (The Original) says:

    I maintain that the order + prosecution easily passes the substantial burden threshold.  Holt v. Hobbs, a RLUIPA case that applies the same legal standard, says as much.  The fact that Sterling was insubordinate, or a bad Marine, or whatever, is largely irrelevant.  RFRA does not guarantee outcomes, it guarantees process.  Sterling was deprived of that “due” process.
    Moreover, the “other” Peanut Gallery would have us ignore the Supremes in Hobby Lobby because he doesn’t like it.  And yet so many on this thread so easily dispense with the Newdow case “because the Supremes said it was ceremonial.”  Can’t have it both ways folks.

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

    Comparing Sterling’s situation to Sikhs is like apples and oranges.  With the Sikh faith, they must start out asking for an accommodation because the turban, hair, and beard openly flout uniform policy.  It’s like requesting an exception to policy, based on religious reasons.
     
    There is nothing that I’m aware of that prohibits someone from modestly decorating their workspace with items that have a religious context, which can also have a non-religious interpretation.  Given that lack of notice, there is no burden on Sterling to request accommodation.  The only person bothered by these signs (according to the ROT) was this NCO who already had a negative opinion of Sterling (justifiably), and instead of asking what the signs mean and/or why they’re posted, the NCO went for the “take that shit down.”  Additionally, the Government has the problem of the MJ’s and NMCCA’s ruling that these quotes were religious, which implies sincerity on Sterling’s part.  So I don’t think the Government can challenge the sincerity of her actions at this stage.
     
    My first tour in GAD, I started wearing a Sir Thomas More necklace shortly after 9-11, in my class B uniform, with an open collar.  That went on for about a month, until one of my supervisors told me I had to stop wearing it because it was distracting, not consistent with military appearance, and we’re not allowed to wear necklaces “openly” in uniform.  I was surprised because the uniform regulation made an exception for “religious jewelry,” and I pointed that out to her.  She had not been aware of that exception, but after reading it herself, she gave me the choice of continuing to wear it BUT I had to button my collar and wear the tie, or continue wearing an open collar, but no necklace.  A very appropriate way of handling the situation, much better than if she’d approached me in a hostile manner and ordered me to take off my necklace, and if I had refused, she would have ripped it off my neck.  Granted, I didn’t have a history of misconduct like Sterling did, but still, the fact that no one said anything to me for about a month led me to believe that either my necklace didn’t bother anyone or, if it did, others were aware the regulation allowed me to wear it, due to its religious context.
     
    I’m Lutheran, not Catholic, but many in my family are Catholic, and it was a spiritual things for me, made me feel like I had some extra protection from the enemy.  And I think everyone can agree that right after 9-11, we all felt the need for all the protection we could get.

  28. Concerned Defender says:

    The court also finds that the signs, although the verbiage in them and the quotes in them were biblical in nature, read something to the effect of no weapon found against me shall prosper, or words to that effect; which could easily be seen as contrary to good order and discipline 

    Well in my view that’s a stretch.  A means to an end.  I cannot fathom any reasonable person taking offense to or finding that this 28 point font, which is about an inch tall, is contrary to good order and discipline whatsoever.  The ONLY thing that is against GOAD here is violating a lawful order, for which taking them down may or not have been because of their religious nature… or not.  Now I’m arguing against myself.  I suppose the NCO would need to be a uniform equal opportunity jerk. 
    For instance, if I were in my office and put a picture of my dog on the wall, the command could legitimately tell me to take it down.  It’s the Army’s wall, office, and I’m the employee.  I could literally be denied putting ANYTHING on my wall or desk, in theory.  Now that’s totally unreasonable and would have to be applied uniformly else there might be discrimination allegations and EEO stuff.

  29. The Silver Fox says:

    I didn’t mean to take a stance on this case one way or the other.  i don’t know much about this area of the law.  Just wanted to point out that we ought not dismiss the issue of religious liberty so lightly.  

  30. question says:

    When courts conduct a RFRA analysis, how willing are they to inquire into the genuineness of the purported belief and/or the sincerity of the claim that a given action was an exercise of religion at all. In this case it seems as though Sterling’s claim that it was an exercise of religion was either a reverse-engineered rationale devised mid-trial or a transparent pretext devised at the time of the act. Neither is particularly sympathetic to me. Are courts willing to say as much?
    Example:: If a previously non-Muslim grows a beard in prison and says sorry bro can’t shave it off I’m Muslim now, will a court say c’mon you silly goose you’re not a Muslim? Is this a question of fact that courts will actually wade into?

  31. Joseph Wilkinson says:

     
    I suppose the NCO would need to be a uniform equal opportunity jerk. For instance, if I were in my office and put a picture of my dog on the wall, the command could legitimately tell me to take it down.  It’s the Army’s wall, office, and I’m the employee.  I could literally be denied putting ANYTHING on my wall or desk, in theory.
     
    I think you got that exactly right.  
     
    Now that….would have to be applied uniformly else there might be discrimination allegations and EEO stuff.
     
    I think this is a perfect analogy to the earlier thread on contempt.  The guy who busted deadlines negligently didn’t get contempt.  The guy who busted deadlines on purpose to defy the judge’s orders (and score a tactical advantage) got contempt.  Likewise here, they might leave alone a religious verse or symbol from another Marine if it didn’t look like an act of defiance or rebuke to the leadership, but order one to be taken down that did look like that.
     
     
    If a previously non-Muslim grows a beard in prison and says sorry bro can’t shave it off I’m Muslim now, will a court say c’mon you silly goose you’re not a Muslim? Is this a question of fact that courts will actually wade into?
     
    Short answer is “yes”…a religious belief has to be “sincerely held” to be protected, so you can’t evade a judge’s orders by saying, “I just had a revelation from God last night, and now I belong to the Religion of Disobeying Judicial Orders.” 
     
    However, a belief doesn’t have to  match up with the rest of your sect to be protected…there’s an old case about unemployment benefits  (I’m in a hurry and haven’t time to search…is it Employment Div. v. Smith?) where a guy quit work at an armaments factory because he was a Jehovah’s Witness and decided that he couldn’t morally work on armaments.  The state found he had “voluntarily” made himself unemployed and denied benefits; the Supreme Court ultimately reversed.  
     
    Without going into the full argument…the state tried to argue that most or all Jehovah’s Witnesses don’t actually believe they can’t work on armaments…and the court said that did not matter; your beliefs are protected even if you’re the only man in your sect who believes them.  (But they still do have to be sincere.)

  32. Joseph Wilkinson says:

    P.S. – A quick google hit this article on the very subject of whether courts should be in the business of evaluating a “sincerely held” belief.   I can’t vouch for the article overall because I haven’t read it.  But as it points out, they definitely do get into that business when the evidence warrants it.

  33. stewie says:

    SF, religious liberty should have the same protections as freedom of speech or any of the other 1st Amendment rights, no more, no less. But this case doesn’t IMO involve that, and yes IMO there’s a small subset of Christians in this country who see persecution behind every door and use that to grant them first among equals protections/rules that aren’t necessary or required.

  34. Philip Cave says:

    May I post a sign:
     

    “god is not great”
          (Christopher Hitchens)

     
    On my office wall, on my wall in my cube, on my wall in my open bay, on my desk facing away from me to observers?
     
    If not, why not?
     
    * God Is Not Great: How Religion Poisons Everything, Christopher Hitchens (paper ed. 2009).

  35. DCGoneGalt says:

    stewie:  I agree that this case involves only a losing RFRA argument rather than an actual exercise of religion that triggers RFRA.  There was no accommodation request or invocation of a right to exercise a belief and IMO the facts indicate that is because the note was a tool to piss off supervision.  Well, mission accomplished.  
     
    And I think it is important to point out that imagined victimhood is quite a coveted status nowadays.  It means in many quarters you are immunized from having to worry about contradictory facts and are tolerated by those authority figures who are too spineless to point out the absurdity of your imagined status.  IMO, Christians are by a large margin not the modern-day leading contenders for the championship of inventing bogeymen behind every corner to polish up their imagined victimhood bona fixes.  I’ve spent quite a bit of time around college campuses recently and have found that many seemingly intelligent people have nearly lobotomized themselves to ensure every thought is tailored to justifying their real or perceived (IMO almost always perceived) victim status. I see this case as one of ex-post facto inventing a victim status during litigation.  With that being said, if I was the Gubmint I would have chosen the path of least resistance and just scrapped the charge/spec (since the religious issue wasn’t raised prior to charging) and pressed with the remainder of the misconduct to avoid the potential headache and she would now be a civilian and the appellate process would be complete. 

  36. question says:

    Very interesting, thanks. My follow-up question would be: Is there a difference between evaluating the sincerity of a claimed religious belief and evaluating sincerity of a claim that a particular action was motivated by religious belief?
    I don’t doubt that Sterling sincerely holds Christian beliefs. What I doubt is the claim that posting the signs was an exercise of religion rather than an exercise of belligerence. Strikes me as highly pretextual.

  37. question says:

    Joseph Wilkinson,
    On second look, the Stanford Law Review link cites at cases questioning the sincerity of a claim that the “motive” for an action was religious belief, not just the sincerity of the belief itself, so I guess these two questions are more or less rolled into one inquiry. 

  38. stewie says:

    Oh they absolutely are, and they have a national cable news channel who puts up War on Christmas stories like the rest of us put up ornaments…but that’s a debate probably outside the scope of this blog.
     
    But at least we agree on this particular case.
     
    I think posting “God is not Great” is designed to do nothing but screw with other people…and thus, it has no place in a common space or workspace where someone else is going to visit, and if you were PVT Cave, I’d order you to take it down.

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

    DCGG,
     
    Couldn’t the reposting of the signs after the NCO removed them be considered an “invocation of a right to exercise a belief?”
     
    I can picture Sterling posting and reposting her quotes simply to screw with the NCO.  The problem is that the findings in the ROT don’t seem to be consistent with that.  I get the impression the trial judge and NMCCA assumed sincerity in finding that the quotes were religious.  Had anyone challenged the sincerity at trial and on first appeal, the Government would have a much stronger argument.  But now, we have a record and court opinions that say, “these postings were religious enough to possibly have caused a disturbance, but not religious enough for protection under the RFRA.”  Huh?  Can’t have it both ways.  And remember, this isn’t just about the quote, it’s also about setting them up in a group of three to represent the Trinity, which is a core belief in many Christian faiths.
     
    Phil Cave, you’d get more mileage and protection under the RFRA if your sign said, “God is really the Flying Spaghetti Monster.”  You Pastafarian!  https://en.wikipedia.org/wiki/Flying_Spaghetti_Monster
     
    And maybe instead of celebrating all the winter holidays, we should just consolidate and go with Festivus.  For the rest of us.  Feats of Strength, aluminum poles.

  40. Philip Cave says:

    I think posting “God is not Great” is designed to do nothing but screw with other people

     
    Why do you say  that?  Can’t I claim it is merely an expression of my firmly held religious belief.  I’m doing nothing more than responding to all those religious postings and religious footnoted official emails which are in my face.  Why do they get to impose their religious belief on me?  Your rule leads to the presumption and imposition of religion (regardless of which faith) doesn’t it?  Why do they get to post their religious beliefs and I not be able to post mine?  

  41. Philip Cave says:

    I think posting “God is Great” is designed to do nothing but screw with other people

     
    With some language change, is that what Sterling did, according to some comments and perhaps the record of trial.

  42. Dew-Process says:

    I think it important to keep in mind that this case is about far less than what it morphed into by the time of the oral argument at CAAF.  In the government’s brief at CAAF for example, their position  was:
     

    . . . though the Military Judge made no findings as to sincerity, it would have been clear error for a reasonable factfinder to have concluded that Appellant’s placement of three signs——with these particular unattributed words paraphrasing a biblical quote, across a shared desk and in a shared office workspace——was a sincere exercise of religion, in light of her prevarication, her numerous unsupported claims of racial, religious, and personal bias, and the entire Record. [Br.24]
     

    They then go on to argue:
     

    . . . precedent supports that the thin evidence Appellant introduced at trial of what “three signs” meant to her fails to match the “exercise of religion” Appellant now claims was burdened. Appellant introduced no evidence at trial that her religion: (a) was linked to the signs’ placement in a shared workspace or on a shared desk; (b) was linked to her selection of these particular words; (c) was linked to the choice of large signs, and a large font; (d) was linked to ignoring and failing to explain why she should not remove the signs; (e) was linked to a refusal to follow the Navy’s accommodation scheme; (f) was linked to replacing the signs without explanation; or (g) was linked to her declining to describe this religious exercise until she arrived at trial.
     
          . . . precedent supports that Appellant’s failure to use the Department of the Navy’s religious accommodation procedures makes any burden insubstantial. Appellant was not coerced to remove the signs, but given the command’s sensitivity to her desire to attend church, she easily might sought and likely received accommodation. She failed her RFRA burden to demonstrate that the accommodation process would have been futile. And because the testimony and claimed burden do not match, analysis of alternate means of exercise is permissible.
     

    It should be noted that trial testimony showed that Sterling was aware of the “accommodation” process because she had previously sought an accommodation from a Sunday morning detail to allow her to attend church services, which the command granted by rescheduling her detail times.  Finally, the government’s brief notes:
     

    . . .  the orders furthered a compelling government interest to maintain an orderly and clean shared Battalion office. The Government’s argument, theory, and evidence at trial never departed from this. And even presuming anyone in the command should have recognized the arguably belligerent signs were paraphrased biblical passages, the Government then has a compelling interest to remove signs to avoid Establishment Clause and ethical violations. [Gov’t Br. at 26; emphasis added].
     

    What this thread hasn’t discussed is the government’s dilemma – under the factual circumstances here – of accommodating the “Free Exercise” clause of the First Amendment vis-à-vis not violating the Establishment clause. The problem here was exacerbated because none of this was litigated at trial by either side, because Sterling never asserted a RFRA violation at trial – only that her superiors were “picking on” her.
     
    I suppose CAAF could punt and remand the case for a DuBay hearing to clarify the record, but in the grand scheme of things, what’s the point?  There’s a far easier and more practical remedy for CAAF which avoids the entire First Amendment / RFRA issues. If one looks to Sterling’s brief as to the relief she seeks, it states:
     

    The lower court adopted an unduly narrow construction of RFRA’s broad protections and upheld LCpl Sterling’s conviction based on speculation. Its decision should be reversed. [Br. at 36]
     

    CAAF could hold that as a matter of law, the proof at trial was legally insufficient to sustain the convictions for the two refusals / disobedience Specs and dismiss them, and remand to the N-MCCA for sentence reassessment. The First Amendment / RFRA issues become moot.  Just a thought.

  43. stewie says:

    You can say that, but quoting a famous atheist might cut against that since it’s literally a lack of religious belief, by definition.
     
    I thought I was pretty clear that I’m not saying “they” get to post their religious beliefs in scenarios like this case or really even generally.  And, again, it’s literally by definition not a religious belief to be an atheist.
     
    Now, I think atheist should absolutely be protected from discrimination for their beliefs, even if, as an agnostic, I join theists in finding that some atheists can be…rather smug IMO and somewhat blind to the limitations of their own position. (Yes, I know, everyone hates agnostics, we’re the Gingers of the religion spectrum).
     
     

  44. Passing By says:

    Then there was the dyslexic agnostic insomniac who lay awake at night wondering if there is a Dog.

  45. Capt. Byers says:

    Apparently being a former Solicitor General of the United States makes you think you can talk over the judges, multiple times.

  46. stewie says:

    Wouldn’t it be doG?
     
    (ducks).

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

    Sterling’s attorney didn’t do her any favors by saying “with all due respect” I don’t know how many times.  Saying “with all due respect” pretty much says you have no respect for that person whatsoever.  And it’s not in the Geneva Conventions either.
     
    I think it will be 3-2 split in favor of Sterling, probably with Dew Process’ proposed remedy, and NMCCA will probably do a sentence reassessment and approve the sentence adjudged.

  48. Joseph Wilkinson says:

    Tami, given your space-opera nickname, I think this is apropos.
     
    (And I agree that’s a good verbal tic to avoid.)