Today CAAF decided the final argued case of the September 2015 Term: United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page). The opinion is available here. Also available here (CAAFlog link).

Judge Ryan writes for the court, joined by Chief Judge Erdmann, Judge Stucky, and Senior Judge Cox. Judge Ohlson dissents.

Writing for the court, Judge Ryan holds that:

We hold that the orders to remove the signs were lawful. Appellant’s claimed defense to violating those orders under RFRA was preserved, but Appellant has failed to establish a prima facie RFRA case. Moreover, we hold that her failure to either inform her command that the posting of the signs was religiously motivated or seek an accommodation are both relevant to Appellant’s failure to establish that the orders to remove the signs constituted a substantial burden on her exercise of religion. Consequently, while the NMCCA’s RFRA analysis was flawed, we affirm the decision on other grounds.

Slip op. at 4.

Judge Ohlson’s dissent begins:

In my view, the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb–2000bb-4 (2012), provides the men and women of our nation’s armed forces with the presumptive right to fully, openly, and spontaneously engage in religious exercise. This right extends to sincere religious conduct that is not specifically required by, or deemed by judges to be important to, the tenets of a servicemember’s faith. Further, servicemembers who are court-martialed for sincere religious conduct may invoke the protections afforded by RFRA even if they did not obtain the permission of the Government before engaging in that conduct, and even if they did not contemporaneously inform their chain-of-command that their actions were religious in nature.

I conclude that the majority’s disposition of the instant case is not consistent with these rights under RFRA. Moreover, I conclude that the majority’s analysis of the underlying legal issue raises the prospect that other servicemembers in the future may be subjected to conviction at court-martial for merely engaging in religious exercise that is entitled to protection under the statute. Therefore, I must respectfully dissent.

Diss.  op. at 1.

Further analysis to follow.

4 Responses to “CAAF affirms the findings in Sterling”

  1. Lone Bear says:

    Agree with the court on this one, follow a damn order. 

  2. Philip Cave says:

    I think this was the right result on the facts.  Although I agree with the tenor of Judge Ohlson’s dissent, that this was not the right case to fully set out the approach to the RFRA.

  3. Tom Booker says:

    What Phil and Lone Bear said.  Staff Judge Advocates, Legal Advisors, and General Counsel would do well to read the considerable dicta in the lead opinion, and to read Judge Ohlson’s dissent as well, as these kinds of cases (and not just religious freedom, but many other types of expression and behavior) are likely to crop up the more the services move away from “uniformity” to “individuality.”
    Respectfully, LTB

  4. Alfonso Decimo says:

    We all agree. Also, now there’s one more reason I’m glad to be retired from active duty.